In re N.S., D.S., A.S., and J.S. ( 2022 )

FILED
May 12, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re N.S., D.S., A.S., and J.S.
No. 21-1003 (Barbour County 19-JA-117, 19-JA-118, 19-JA-119, and 19-JA-120)
MEMORANDUM DECISION
Petitioners C.B. and J.B., by counsel Steven B. Nanners, appeal the Circuit Court of
Barbour County’s November 18, 2021, order denying their motion to intervene in the
proceedings and for permanent placement of N.S., D.S., A.S., and J.S. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Katica
Ribel, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Allison C. Iapalucci, filed a response on the children’s behalf in support of the circuit court’s
order. On appeal, petitioners argue that the circuit court erred in denying their motion to
intervene and for permanent placement of the children.
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 September of 2019, the DHHR filed a child abuse and neglect petition alleging that the
children’s parents failed to supply the children with a suitable home and exposed the children to
domestic violence. Upon the filing of the petition, the DHHR placed the children with
petitioners, who are the children’s maternal grandparents, and the children remained in this
placement throughout the abuse and neglect proceedings. The parents were granted improvement
periods but ultimately failed to remedy the conditions of abuse and neglect. The circuit court
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).
1
involuntarily terminated the parents’ parental rights to the children in April of 2021. The circuit
court ordered no contact between the children and their parents, and petitioners were informed of
that order. At the time of the dispositional hearing, the children had been in petitioners’ care for
over eighteen months.
Subsequent to the dispositional hearing, the DHHR received a referral that the biological
parents continued to have contact with the children in violation of the circuit court’s order, that
the mother was living on petitioners’ property, and that the children were living in deplorable
conditions while in petitioners’ care. The DHHR investigated the allegations and substantiated
them, which led to the removal of the children from petitioners’ custody on May 24, 2021. 2
On June 24, 2021, petitioners filed a motion to intervene in the proceedings and for the
return of the children to their custody. In their motion, they denied any wrongdoing and alleged
that the DHHR erroneously removed the children from their care. 3
2
For clarification, the children had not achieved permanency with petitioners prior to
their removal from this home.
3
Notably, West Virginia Code § 49-4-111(a) governs the removal of children from a
foster care placement and provides that
[t]he department may temporarily remove a child from a foster home based on an
allegation of abuse or neglect, including sexual abuse, that occurred while the
child resided in the home. If the department determines that reasonable cause
exists to support the allegation, the department shall remove all foster children
from the arrangement, preclude contact between the children and the foster
parents, provide written notice to the multidisciplinary treatment team members
and schedule an emergency team meeting to address placement options. If, after
investigation, the allegation is determined to be true by the department or after a
judicial proceeding a court finds the allegation to be true or if the foster parents
fail to contest the allegation in writing within twenty calendar days of receiving
written notice of the allegations, the department shall permanently terminate all
foster care arrangements with the foster parents.
The DHHR properly terminated petitioners’ foster care arrangement upon substantiating abuse or
neglect of the children in petitioners’ home. Following an investigation, the DHHR substantiated
the allegations that petitioners failed to provide the children with a suitable home and allowed
the mother to have continued contact with the children after the termination of her parental
rights. Furthermore, the duration of petitioners’ custody of the children is inconsequential to this
analysis. West Virginia Code § 49-4-111(b) provides that a foster care placement in excess of
eighteen months may only be terminated if termination is in the best interest of the child and if
termination is in accordance with West Virginia Code § 49-4-111(a), among other circumstances
warranting termination of the foster care arrangement.
2
During the hearing on petitioners’ motion, the DHHR’s internal investigation unit report
(“IIU report”) was admitted as evidence. According to the IIU report, the mother and father
continued to reside in the same neighborhood as the children after the termination of their
parental rights. On May 9, 2021, the parents were involved in a domestic violence altercation
outside of petitioners’ residence, and the mother drove over the father with her vehicle. The
children were home at the time and aware of the incident, although they were ordered by
petitioners to stay inside while Petitioner J.B. attended the scene. Then, on May 24, 2021, the
mother was found hiding in petitioners’ camper on their property during a DHHR investigation.
The children indicated that Petitioner C.B. told them that they could see the mother after the
children were adopted. However, until then, the children were reportedly required to leave the
room when the mother visited the home.
The DHHR also reported that the children stated they were “not allowed to talk about
things that happened at grandma’s [petitioners’] home. . . . [t]hey are not allowed to talk about
the bed bugs, their parents fighting, they are not allowed to talk about anything.” Nevertheless,
the children disclosed that J.S. and D.S. bathe together and A.S. and N.S. bathe after them, using
the same bath water. Eleven-year-old N.S. was “allowed to add clean water, only to wash her
hair.” The children were observed with “dirty hands and face[s]” at their school with clothes that
did not fit and shoes with holes in them.
Finally, the DHHR reported that petitioners’ home was in a deplorable state. Outside of
the home, the investigator observed dangerous objects, such as boards with nails protruding
outward and sharp metal pieces in the grass. Inside the home were “massive amounts of clutter,
debris, food, unsecured medications, [and] sharp objects.” The children’s rooms were
“completely covered in clothing, objects, and loose bedding” and their beds had no sheets. The
report also noted that “[a]ll counter and table areas were covered in household clutter and
debris.” Ultimately, the DHHR concluded that the children were neglected in petitioners’ care
and terminated the foster care arrangement.
At the hearing, the circuit court heard from the guardian regarding her investigation into
the allegations, along with testimony from both petitioners and a DHHR worker. The guardian
stated that she met with the children at their school, and the children disclosed that they had
contact with their mother with petitioners’ knowledge and consent. The guardian also agreed
with the DHHR’s assessment that the home was in deplorable condition. The guardian met with
the children after they had been placed in a new foster home, and the children “specifically asked
not to be removed” from that home. She stated that N.S. was the only child who expressed a
desire for continued contact with Petitioner C.B. “but only so long as she [was] permitted to
reside with the [new foster] family.”
Petitioners both denied that the mother was staying in the camper on their property.
Petitioner C.B. testified that she discovered the mother in the camper early in the morning on the
day that the DHHR came to investigate. She testified that she told the mother to leave, the
mother refused, and she took no further action. Petitioner C.B. asserted that the mother had no
contact with the children, and if the children stated otherwise, they were lying. Both petitioners
also testified that they believed the children became dirty at school, rather than as a result of
neglectful care.
3
The DHHR worker testified that, when the children were removed from petitioners’ care,
the children had to be “cleaned and re-clothed” with emergency clothing kept at the DHHR
office. She also believed that the dirt apparent on the children was not consistent with dirt
accumulation from a day at school. According to the DHHR worker, she always notified
petitioners when she would inspect their home. She explained that the household was always
dirty; she discussed clothing with petitioners during each visit, but those conditions never
improved.
Following the presentation of evidence, petitioners and counsel were excused from the
courtroom. The court weighed petitioners’ testimony against the proffer of the guardian and the
DHHR’s IIU report and concluded that petitioners were not being truthful. The circuit court
noted that it could not understand why the children would fabricate contact with their mother and
found that petitioners were aware that the children were not permitted contact with their parents.
The court found that petitioners’ home was in “the same condition[]” it was when the children
were removed from their parents. The court held its ruling in abeyance, waiting to hear testimony
from the author of the DHHR’s IIU report. Following the receipt of an affidavit from the author
of the DHHR’s IIU report, affirming the veracity of the original report, the circuit court denied
petitioners’ motion to intervene and for permanent placement of the children in their care. The
circuit court’s November 18, 2021, order memorialized its decision. Petitioners now appeal this
order. 4
The Court has previously held:
“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 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).
4
As previously mentioned, the children’s parents’ parental rights were terminated below.
The permanency plan for the children is adoption in their current foster placement.
4
On appeal, petitioners argue that the circuit court erred in denying their motion to
intervene and for permanent placement of the children. In support of intervention, petitioners
stress that the children had been in their care from September of 2019 until May of 2021, in
excess of eighteen months. They argue that the circuit court did not provide them a meaningful
opportunity to be heard, pursuant to West Virginia Code § 49-4-601(h), because they were not
permitted to cross-examine the author of the DHHR’s IIU report and were not granted access to
the confidential court file prior to the evidentiary hearing for permanent placement. Petitioners
further argue that the circuit court erred in its application of West Virginia Code § 49-4-114, also
known as the “grandparent preference” for adoption in child abuse and neglect cases. Upon our
review, petitioners are entitled to no relief on appeal.
West Virginia Code § 49-4-601(h) provides
In any proceeding pursuant to this article, the party or parties having custodial or
other parental rights or responsibilities to the child shall be afforded a meaningful
opportunity to be heard, including the opportunity to testify and to present and
cross-examine witnesses. Foster parents, pre-adoptive parents, and relative
caregivers shall also have a meaningful opportunity to be heard.
We have recognized that this code section establishes a “two-tiered framework” between
“[p]arties having ‘custodial or other parental rights or responsibilities to the child’” and “[f]oster
parents, preadoptive parents, and relative caregivers.” State ex rel. H.S. v. Beane, 240 W. Va.
643, 647, 814 S.E.2d 660, 664 (2018). Critical to the facts of this case, “[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.’” Id, at 648, 814 S.E.2d at 665 (citation omitted).
Here, petitioners obtained physical custody of the children after the initiation of the
proceedings. Therefore, petitioners were not entitled to the same level of participation as a
parent. Nor were they entitled to present evidence or cross-examine witnesses.
Foster parents, pre-adoptive parents, or relative caregivers who occupy
only their statutory role as individuals entitled to a meaningful opportunity to be
heard pursuant to West Virginia Code § 49-4-601(h) . . . are subject to
discretionary limitations on the level and type of participation as determined by
the circuit court.
Syl. Pt. 4, in part, State ex rel. C. H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018). It is
clear that the circuit court provided petitioners a meaningful opportunity to be heard as to the
best interests of the children and they were permitted to present testimony in support of the
children’s permanent placement in their care. In sum, West Virginia Code § 49-4-601(h) does
not entitle petitioners to a greater level of participation than what the circuit court afforded them
below.
Moreover, the circuit court did not err in denying petitioners’ motion to intervene despite
the length of time the children were in petitioners’ care. Petitioners’ argument in this regard
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focuses on the eighteen months that they cared for the children during the proceedings. Although
petitioners do not cite any authority to explain the significance of the period of time that the
children were in their care to their motion to intervene, this argument appears to implicitly rely
upon syllabus point seven of Faircloth, which provides
[f]oster parents are entitled to intervention as a matter of right when the
time limitations contained in West Virginia Code § 49-4-605(b) . . . and/or West
Virginia Code § 49-4-610(9) . . . are implicated, suggesting that termination of
parental rights is imminent and/or statutorily required.
240 W. Va. at 732-33, 815 S.E.2d at 543-44. The time limitation referenced in West Virginia
Code §§ 49-4-605(b) and 49-5-610(9) is “fifteen of the most recent twenty-two months,” which,
as we recognized in Faircloth, is a “triggering time frame of imminent termination” of parental
rights. Id., 240 W. Va. at 743, 815 S.E.2d at 554. However, as mentioned above, petitioners were
not foster parents of the children at the time that they moved to intervene, and, furthermore,
termination of the parental rights of the parents was not imminent, as it had already occurred.
Therefore, petitioners were not entitled to intervention as a matter of right as they asserted below
and now on appeal.
Finally, we consider whether the circuit court erred in its application of West Virginia
Code § 49-4-114(a)(3), the grandparent preference. 5 “[West Virginia Code § 49-4-114(a)(3)]
contemplates that placement with grandparents is presumptively in the best interests of the child,
and the preference for grandparent placement may be overcome only where the record reviewed
in its entirety establishes that such placement is not in the best interests of the child[ren].” Syl.
Pt. 7, in part, In re P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020) (internal citation omitted). As
we have held, the “grandparent preference” is not absolute and placement must “be in the best
interests of the child[ren], given all circumstances of the case.” Id, at 571, 848 S.E.2d at 827, syl.
pt. 8, in part. Therefore, in order to deny petitioners permanent placement of the children, the
circuit court must have concluded that placement outside of that home was in their best interests.
5
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.
W. Va. Code § 49-4-114(a)(3).
6
Here, the circuit court was presented evidence that the children were subjected to
deplorable living conditions while in petitioners’ home, akin to the conditions that they suffered
in the home of their biological parents. The children were observed to be excessively dirty with
ill-fitting clothing and were suffering from a bed bug infestation in their rooms. Moreover, the
DHHR worker testified that she noted these concerns during prior announced visits to the home
and raised the concerns with petitioners prior to the August of 2021 hearing; however, petitioners
failed to remedy those conditions. Additionally, the circuit court heard evidence that the children
had continued contact with the mother, in violation of the circuit court’s prior orders. The
children informed the author of the DHHR’s IIU report and the guardian that they had contact
with the mother subsequent to the termination of the mother’s parental rights. Finally, the
DHHR’s IIU report included extremely concerning statements from the children that the children
were not permitted to talk about the conditions of petitioners’ home. The children stated that they
were not allowed to talk about the conditions in the home or contact with their parents.
Although petitioners denied many of the allegations during their testimony, the circuit
court found that their testimony was not credible. “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.” Michael
D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). On appeal, petitioners
argue that the circuit court’s credibility determinations were erroneous because the circuit court
did not provide their counsel access to the court file, accepted a proffer from the guardian as to
issues of fact, and admitted the DHHR’s IIU report without providing petitioners an opportunity
to cross-examine its author. However, as discussed above, petitioners were entitled to a
“meaningful opportunity to be heard” but not entitled to cross-examine witnesses. The circuit
court was within its discretion to weigh petitioners’ credibility in light of the other evidence
before it, specifically the corroborating information from the DHHR’s IIU report and the
guardian as to the condition of the children that contradicted petitioners’ self-serving testimony.
Upon our review of the record provided, we find that the circuit court’s denial of petitioners’
motion for placement of the children is not erroneous, and petitioners are entitled to no relief on
appeal.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 18, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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