In re C.H., E.H., and R.H. ( 2021 )

FILED
November 8, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re C.H., E.H., and R.H.
No. 21-0463 (Kanawha County 20-JA-305, 20-JA-306, and 20-JA-307)
MEMORANDUM DECISION
Petitioner Grandmother L.D., by counsel Scott E. Elswick, appeals the Circuit Court of
Kanawha County’s May 7, 2021, order denying her permanent placement of C.H., E.H., and R.H. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order and a
supplemental appendix. The guardian ad litem, Elizabeth G. Kavitz, filed a response on behalf of
the children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in finding that petitioner was not statutorily entitled to intervene in the matter, in not
adding her as a party to the proceedings, and in making findings contrary to the grandparent
preference statute.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In July of 2020, the DHHR filed a child abuse and neglect petition against the parents based
upon allegations of drug abuse. Specifically, the DHHR alleged that law enforcement officers were
dispatched to a hotel room upon receiving reports of drug activity. The parents and the children
were in the hotel room and, upon searching the room, police officers located a box containing
scales, spoons, needles, and vials in the toilet tank. Child Protective Services (“CPS”) implemented
a safety plan wherein the children’s maternal great-grandmother agreed to supervise the mother
and the children in the great-grandmother’s home. However, approximately one week later, the
mother was arrested after she attempted to sell heroin, and one of the children was found in the car
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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in the presence of drug paraphernalia at the time of the arrest. When CPS workers removed the
children from the great-grandmother’s home, they observed the mother’s accomplice in the
attempted heroin sale, a known drug addict, also in the home.
Ultimately, the circuit court adjudicated the parents as abusing and neglecting parents and
eventually terminated their parental rights. The mother appealed the termination of her parental
rights, and this Court affirmed the circuit court’s dispositional order by memorandum decision.
See In re C.H., No. 20-0917, 2021 WL 1550242 (W. Va. Apr. 20, 2021) (memorandum decision).
Petitioner, the children’s maternal grandmother, allegedly filed a motion to intervene and
sought placement of the children in November of 2020; however, the motion was not properly
filed, noticed, or received by the circuit court or the parties. In April of 2021, the circuit court held
a hearing on the permanent placement of the children, at which time petitioner was able to raise
her motion. In support of her motion, petitioner testified that she had sought placement of the
children since the initiation of the proceedings and called the guardian over twenty times without
a response. Petitioner further stated that she went to the DHHR office in person to attempt to
request placement of the children and called the caseworker multiple times without response.
The CPS worker testified that petitioner was not considered to be an appropriate placement
for the children because petitioner supported the mother throughout the proceedings, denied that
the mother had done anything wrong, and repeatedly informed the DHHR workers that the children
should be placed with the mother. As such, the DHHR determined that placement with petitioner
was not in the children’s best interest. In rebuttal, petitioner denied that she ever indicated the
children should be placed with the mother.
After hearing testimony, the circuit court denied petitioner permanent placement of the
children. The circuit court found that petitioner was an inappropriate placement and that her
testimony was not credible. The circuit court further found that petitioner essentially slept on her
rights and was “way late to the dance.” Lastly, the circuit court noted that the children were
flourishing in their respective foster placements. Petitioner appeals the circuit court’s May 7, 2021,
order denying her permanent placement of the children. 2
The Court has previously established the following standard of review in cases such as this:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although there
is evidence to support the finding, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. However,
a reviewing court may not overturn a finding simply because it would have decided
2
The parents’ parental rights were terminated below. The children were placed in a foster
home, and the permanency plan for the children is adoption by the foster family.
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the case differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that the circuit court erred in not naming her as a party and
finding that she did not have a statutory right of intervention in the proceedings below. According
to petitioner, she was a caregiver of the children and, as such, was entitled to notice of the
proceedings and the right to be heard. She further argues that if she had been afforded party status,
she would have been appointed an attorney that could have assisted her in the process, she would
have discerned much earlier in the proceedings that she needed to obtain counsel at her own
expense. Alternatively, petitioner argues that, had she been given notice and the opportunity to
participate in the proceedings, she would have been able to more timely establish that she was an
appropriate placement. Thus, the DHHR and guardian likely would not have opposed placement
of the children in her home.
Petitioner’s involvement in the proceedings is governed by West Virginia Code § 49-4-
601(h), which establishes a “two-tiered framework” of the parties who enjoy the procedural due
process right of a meaningful opportunity to be heard. State ex rel. H.S. v. Beane, 240 W. Va. 643,
647, 814 S.E.2d 660, 664 (2018). Specifically, parties having “custodial or other parental rights or
responsibilities” are entitled to both “a meaningful opportunity to be heard” and “the opportunity
to testify and to present and cross-examine witnesses.” W. Va. Code § 49-4-601(h). Further, we
have explained that “[a] person ‘who obtains physical custody after the initiation of abuse and
neglect proceedings—such as a foster parent—does not enjoy the same statutory right of
participation as is extended to parents and pre-petition custodians.’” Beane, 240 W. Va. at 648,
814 S.E.2d at 665 (quoting State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL 1788946 at *3 (W.
Va. May 5, 2017) (memorandum decision)) (emphasis added). These individuals—foster parents,
pre-adoptive parents, and relative caregivers—are entitled to a meaningful opportunity to be heard
only and are not entitled to an opportunity to testify and present and cross-examine witnesses. W.
Va. Code § 49-4-601(h).
Notably, petitioner cannot be classified as any of those individuals listed above who are
entitled to participation rights in a child abuse and neglect case. The record is clear that the children
were removed from their parents’ care and placed with the maternal great-grandmother under a
temporary protection plan. Aside from her own self-serving statements, petitioner failed to present
any evidence that she was a pre-petition custodian or a relative caregiver as defined by West
Virginia Code § 49-4-601(h), especially considering that she lived in another state at the time of
the petition’s filing. To the extent petitioner argues that the circuit court erred in denying her
motion to intervene, we find no error. The record is clear that petitioner failed to properly file and
notice her motion to intervene, leaving the parties below and the circuit court unaware of her
motion until several months after the termination of the parents’ parental rights. Although
petitioner failed to notice her motion, the circuit court nonetheless considered her motion and
allowed petitioner to present evidence and testimony in support of that motion. Given the
foregoing, we find that the circuit court did not err in declining to add petitioner as a party to the
proceeding or in denying her motion to intervene.
3
Petitioner next argues that the circuit court made findings “contrary to the grandparent
preference” during the proceedings below. According to petitioner, the circuit court made
numerous findings regarding the DHHR’s investigation, efforts to prevent removal, and placement
“without any meaningful participation or even monitoring of the proceedings by . . . [p]etitioner.”
Petitioner claims that she informed the DHHR of her desire to adopt the children and that a home
study of her home should have been ordered by the circuit court. Petitioner argues that she was
“assisting significantly” with the children’s caretaking and that she should not have been denied
placement of the children based on the CPS worker’s testimony that she initially supported the
mother, which she denies. She asserts that, by not adding her as a party to the matter, coupled with
the DHHR’s refusal to return her phone calls or investigate her home, “any findings made by [the
circuit court] upon the record established to date have been contrary to the applicable statutes, rules
and standards.”
On this issue, we have previously held that
[w]hile the grandparent preference statute 3 . . . places a mandatory duty on
the West Virginia Department of Health and Human Resources to complete a home
study before a child may be placed for adoption with an interested grandparent, “the
department shall first consider the [grandparent’s] suitability and willingness . . . to
adopt the child.” There is no statutory requirement that a home study be completed
in the event that the interested grandparent is found to be an unsuitable adoptive
placement and that placement with such grandparent is not in the best interests of
the child.
Syl. Pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015) (footnote added). In discussing the
grandparent preference, this Court noted that “[t]he preference is just that—a preference. It is not
absolute . . . the child’s best interest remains paramount.” In re K.E., 240 W. Va. 220, 225, 809
S.E.2d 531, 536 (2018). Simply stated, “[t]he grandparent preference must be considered in
conjunction with our long standing jurisprudence that ‘the primary goal in cases involving abuse
and neglect . . . must be the health and welfare of the children.’” In re Hunter H., 227 W. Va. 699,
703, 715 S.E.2d 397, 401 (2011) (quoting Syl. Pt. 3, in part, In re Katie S., 198 W. Va. 79, 479
S.E.2d 589 (1996)).
3
West Virginia Code § 49-4-114(a)(3), the grandparent preference statute, provides as
follows:
For purposes of any placement of a child for adoption by the department, the
department shall first consider the suitability and willingness of any known
grandparent or grandparents to adopt the child. Once grandparents who are
interested in adopting the child have been identified, the department shall conduct
a home study evaluation, including home visits and individual interviews by a
licensed social worker. If the department determines, based on the home study
evaluation, that the grandparents would be suitable adoptive parents, it shall assure
that the grandparents are offered the placement of the child prior to the
consideration of any other prospective adoptive parents.
4
At the outset, we reiterate that petitioner failed to demonstrate that she was entitled to be
added as a party to the proceedings below. Moreover, petitioner’s argument regarding the DHHR’s
failure to conduct a home study is unavailing given that the DHHR considered placement of the
children with petitioner but found her to be an unsuitable placement. As noted above, the DHHR
is absolved of its statutory duty to perform a home study if it finds the grandparent is unfit and
placement in the home is not in the children’s best interests. In re L.M., 235 W. Va. at 438, 774
S.E.2d at 520, Syl. Pt. 10, in part. Here, the evidence established that petitioner unfoundedly
supported the mother throughout the proceedings, denied that the mother had done anything
wrong, and repeatedly informed the DHHR workers that the children should be placed with the
mother despite her rampant drug abuse. While petitioner denies that she supported the mother, the
circuit court found her testimony in that regard to be incredible, a determination we decline to
disturb on appeal. Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997)
(“A reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations and this Court is not in a position to, and will not, second
guess such determinations.”). As such, petitioner’s home clearly was not suitable for the children
and, therefore, the circuit court did not abuse its discretion by not ordering the DHHR to conduct
a home study. Moreover, we find no error in the circuit court’s determination that placement of
the children in the foster family’s home was in their best interests given that petitioner was an
unsuitable placement, as well as the children’s bond with the foster family, the length of time they
had lived in that home, and their substantial progress while in their care.
For the foregoing reasons, we find no error in the decision of the circuit court, and its May
7, 2021, order is hereby affirmed.
Affirmed.
ISSUED: November 8, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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