In re B.B. and R.B.

FILED
February 1, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re B.B. and R.B.
No. 21-0240 (Harrison County 18-JA-133-3 and 18-JA-134-3)
MEMORANDUM DECISION
Petitioner Grandmother V.H., by counsel Michael Tyler Mason, appeals the Circuit Court
of Harrison County’s February 16, 2021, order denying her permanent placement of twins B.B.
and R.B. 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.
The guardian ad litem (“guardian”), Jenna Robey, filed a response on behalf of the children also
in support of the circuit court’s order. The Intervening Foster Parents K.W. and M.W., by counsel
Linda Hausman, filed a response in support of the circuit court’s order and a supplemental
appendix. On appeal, petitioner argues that the circuit court erred in permanently placing the
children with the unrelated foster family rather than with her, the biological grandmother who also
previously adopted the children’s half-sibling.
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 November of 2018, the DHHR filed a child abuse and neglect petition alleging that the
parents had been arrested on drug-related charges arising in the State of Louisiana. The DHHR
further alleged that the parents had exposed the children to unsafe living conditions and had failed
to adequately supervise the children. The DHHR concluded that there were no relative caregivers
in West Virginia to take care of the then-eight-month-old twin children. Petitioner and her other
daughter, H.N., came to West Virginia seeking joint custody of the children. However, the DHHR
explained that the children could not be placed in petitioner’s home in Louisiana without a home
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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study pursuant to the Interstate Compact on the Placement of Children (“ICPC”). Petitioner told
the Child Protective Services (“CPS”) worker that the mother had been working with a federal
agent against the father and had done nothing wrong. However, petitioner stated that the mother
was a “drug addict.”
Thereafter, the court granted the mother a preadjudictory improvement period, and by April
of 2019, the DHHR placed the children with the mother to attempt to reunify the family while
retaining legal custody. However, in mid-May of 2019, the mother absconded to her sister’s house
in Louisiana with the children. On May 17, 2019, the mother was arrested. Petitioner visited with
the children while waiting for CPS workers to retrieve them. On May 21, 2019, the children were
returned to West Virginia and placed with foster parents, K.W. and M.W. Thereafter, the parents
filed motions for post-adjudicatory improvement periods.
In early September of 2019, the DHHR received a report by authorities in Louisiana
indicating that petitioner passed a home study. However, the evaluator indicated that she believed
that petitioner was not forthright regarding the state of her health and had concerns that petitioner
did not provide medical records about her diagnosis and treatment for multiple sclerosis.
Additionally, petitioner’s other daughter, C.J., was a reference and stated that she had concerns
with petitioner’s ability to care for the children due to health issues. Petitioner filed a motion to
intervene and motion for placement of the children in January of 2020. The father filed a response
in opposition stating that he did not want petitioner to have placement of the children. The next
month, the foster parents, M.W. and K.W., filed a motion to intervene.
The circuit court held a dispositional hearing in June of 2020. The court denied the parents’
motions for post-adjudicatory improvement periods and terminated their parental rights. The
circuit court also granted intervenor status to both petitioner and the foster parents. 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 B.B., No. 20-0837, 2021 WL 1550476 (W.
Va. Apr. 20, 2021)(memorandum decision). In the following months, the court held permanency
review hearings and determined that the children’s permanency plan was adoption. However, both
petitioner and the intervening foster parents sought adoption of the children.
During this time, petitioner’s home was destroyed by Hurricane Laura in August of 2020,
and she sought a six-month continuance to allow her time to obtain housing. The court denied the
continuance and held a final permanency hearing in October of 2020. The DHHR presented the
testimony of several workers, the first of which stated that she contacted several relatives,
including petitioner and her other daughter H.N., when the children were initially removed. The
worker stated that H.N. and petitioner lived together in Louisiana and both travelled to West
Virginia to jointly request placement of the children. She stated that she explained that the children
could not be placed in their home without the completion of a ICPC home study. On cross-
examination, she stated that petitioner told the worker and her supervisor that the mother had been
working with a Federal Bureau of Investigations agent and had done nothing wrong to warrant her
arrest. She also stated that petitioner told her that the mother was addicted to drugs.
Next, a CPS supervisor testified that in early March of 2019, the mother came to the
DHHR’s office and told the supervisor that she believed petitioner was sabotaging her progress
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and did not want the children placed with petitioner. The supervisor stated that on March 15, 2019,
petitioner called her and stated she no longer sought placement of the children and to cancel the
home study. However, petitioner called her back on May 22, 2019, denied the prior conversation,
and requested another home study. In response, the supervisor submitted paperwork for an ICPC
home study on June 7, 2019. Another ongoing CPS worker testified that petitioner first requested
visitation in February of 2020 and that petitioner exercised two in-person visits before COVID-19
pandemic protocols prevented in-person visits. The only other in-person contact petitioner had
with the children was in May of 2019 when the mother absconded to Louisiana. The worker stated
that petitioner began exercising video visits in June of 2020. The worker testified that petitioner
lost her home in a hurricane and still had no housing at that time, so another home study would
need to be completed once petitioner was in her new home. The worker recommended permanent
placement with the foster family because of the lack of a bond between petitioner and the twins
that she witnessed during the two in-person visits. She also had concerns that petitioner would
allow continued contact between the mother and the twins when the court ordered no post-
termination contact. The worker highlighted that during petitioner’s second visit with the children,
she wanted to call the mother while the mother was incarcerated to allow her to speak with the
twins despite the fact that the visit was meant for her. When discussing the children’s biological
half-sibling, K.N., in Louisiana, the worker agreed that the children had not known K.N. as a
sibling.
In support of her motion for permanent placement, petitioner testified that she was
expecting delivery of her new manufactured home soon, but that the septic and plumbing systems
needed repaired. Petitioner stated that she saw her doctor every six months for her multiple
sclerosis but denied that her condition negatively affected her. She testified that she had previously
adopted the children’s half-sibling, K.N., shortly after she was born drug-affected in prior CPS
proceedings in Louisiana. Petitioner stated that K.N. referred to her as “Nana” and to the mother
as her mother or the mother’s first name. She stated that she allowed contact between K.N. and the
mother because she was allowed to do so under Louisiana law and presented the testimony of the
attorney in K.N.’s adoption proceeding, who confirmed that there were no restrictions regarding
contact with K.N. and the mother. Petitioner stated that she did not have a close relationship with
the mother due to her alcohol and drug abuse but conceded that she went to West Virginia during
petitioner’s improvement period to pay for hotels and other essentials for the family and at other
times had numerous jail calls with her. She admitted that during some calls she had arguments
with the mother, she referred to the mother as “mommy” with K.N. present, and that the mother
indicated that the “plan” was for petitioner to allow her to see the children. Petitioner also stated
that at the initiation of the case, she did not live with H.N. and that she told CPS workers that the
mother was a drug dealer, which is contrary to allegations contained in the petition and the
testimony of the CPS worker.
Petitioner explained that she had seen the twins once before they were taken to West
Virginia and had sought placement of them since the initiation of the proceedings. According to
petitioner, she only stopped seeking placement while the mother had the children during an
improvement period. Petitioner testified that she would keep the twins away from the biological
parents. On cross-examination, petitioner stated that her other daughter, H.N., was an unfit parent
and that petitioner recently turned away placement of H.N.’s oldest child during a CPS case in
Louisiana so that she could obtain the twins. She also first testified that she had not spoken to the
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mother on the day that she absconded but later admitted that the mother called her and told her she
planned to take the children to Louisiana. Petitioner stated that she did not call the DHHR and
report this information.
The foster parents presented evidence that the children were very bonded with them and
were significantly developmentally delayed when placed in their care. The children needed
extensive medical treatment and vaccines. For instance, initially neither child could walk, and they
received weekly occupational, vision, speech, and developmental therapy sessions. R.B. also had
a double ear infection and had visual delays. K.W. and M.W. testified that the children came to
them malnourished and would eat to the point of vomiting. Neither child was familiar with eating
solid foods or drinking out of a sip cup. They stated that the children referred to them as “mommy”
and “daddy” and referred to the foster parents’ other children as “brothers.” Lastly, a social worker
testified that she monitored twelve video calls between petitioner and the children and did not
witness a bond between them.
After hearing testimony, the circuit court denied petitioner permanent placement of the
children, finding that it was in the children’s best interest to remain with the foster parents, with
whom they were very bonded. The court noted the lack of a bond between petitioner and the
children, citing that petitioner had seen the children in-person once prior to their removal and only
three times during the pendency of the proceedings—one time being when the mother absconded
to Louisiana. The court stated that the children should not be “forced to form new bonds with
parent figures, sibling figures, doctors, and providers.” Although the court found that petitioner
did not violate any court order in Louisiana regarding continued contact between K.N. and the
mother, the court had concerns that the mother would be given contact with the children if placed
in petitioner’s care and noted that petitioner raised K.N. as a granddaughter and not as her child.
The court also found that it was not in the children’s best interest to be “uprooted once again,”
stating that “[a]t the tender age of two, these children have been removed from their parents’ care,
removed from their foster placement, and removed from their mother’s care a second time.” Lastly,
the circuit court noted that the children were at a “disadvantage due to extensive medical problems
and developmental delays, and that those issues had been addressed by a team of doctors,
therapists, and other specialists here in West Virginia.” Petitioner appeals the circuit court’s
February 16, 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,
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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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).
On appeal, petitioner argues that the circuit court erred in denying her motion for
permanent placement of the children despite her continued requests for placement since the
inception of the case. Petitioner contends that her home is appropriate, she has the financial means
to take care of the children, and she has experience raising other children in foster care in
Louisiana. For these reasons, she claims that the children’s best interests are served by being
adopted by their biological grandmother. According to petitioner, the main reason that the circuit
court denied her motion was a lack of a bond, which she argues was created by the DHHR and the
court’s mismanagement of its “docket for such an unreasonable amount of time” that the children
bonded with the foster parents, M.W. and K.W. Petitioner states that “the children spent so long
bouncing around between these placements because of incompetence and procrastination that was
outside of [petitioner’s] control” and cites that the circuit court’s delays were in violation of Rule
32 and Rule 5 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.
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.
In discussing the grandparent preference, this Court has 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)). “The statute 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.” Syl. Pt. 2, in part, In re K.E., 240 W. Va. 220, 809 S.E.2d
531 (2018) (citation omitted).
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Although we have held that a circuit court erred by not adhering to the grandparent
preference where “bureaucratic delays caused the child to remain in the home of the foster family
for an extended period of time,” In re J.P., 243 W. Va. 394, 396, 844 S.E.2d 165, 167 (2020),
bureaucratic delays were not to blame here. Rather, petitioner’s ICPC home study was timely
completed, and the children were placed in the foster home only after the mother absconded to
Louisiana. The children remained in the foster home during the pendency of the parents’ post-
adjudicatory improvement periods. 3 Notably, petitioner supported the mother’s efforts during her
improvement period to reunify with the children, and petitioner withdrew her request for
placement during that time. Only after the mother failed to complete the terms of her improvement
period did petitioner request a home study—a request with which the DHHR complied.
Accordingly, petitioner’s argument that the court’s delays somehow prejudiced her are without
merit as the DHHR completed the ICPC home study as soon as practicable and completed the
requirements pursuant to the grandparent preference.
Having reviewed the record in its entirety, we agree with the circuit court’s finding that
permanent placement with petitioner was not in the children’s best interest. By the time of the final
placement review hearing, the children had been placed with M.W. and K.W. for seventeen months
and the children were two years and seven months old. Therefore, these young children had spent
half of their lives with M.W. and K.W. and had bonded to them as parents. Petitioner concedes
this fact and the record wholly supports it.
This Court has previously stressed the importance of the “continuity of
relationships, surroundings and environmental influence” during a child’s first
three years of life. These early years are truly formative because, “[i]n their simple
everyday activities, infants and toddlers form the foundations of all later
development.” Thus, the Twins’ best interests require that the bonds they formed
with [the foster parents] in . . . seventeen months of [their] life not be short-changed.
In re K.E., 240 W. Va. 220, 227, 809 S.E.2d 531, 538 (2018). Additionally, the court made special
note of the twins’ severe developmental delays and medical needs, which were being addressed
by doctors and other specialists here, and it considered that the twins refer to K.W. and M.W.’s
other children as “brothers” and to K.W. and M.W. as “mommy” and “daddy.” The strong bonds
and substantial progress made while in the care of the intervening foster parents cannot be
overlooked as petitioner suggests the Court should do.
Beyond the above evidence, the record shows other concerns with petitioner as permanent
placement, including issues that bear on her veracity and judgment. For instance, testimony
showed that petitioner knew—but failed to report—that the mother had taken the children and
intended to flee to Louisiana, and petitioner was not initially truthful when asked whether she
spoke to the mother when the mother absconded. Additionally, petitioner testified that she told the
CPS workers that the mother was a “drug dealer” when the petition and the CPS worker’s
3
According to the guardian, issues arose regarding the mother’s competency in her criminal
case, which necessitated a determination by the court in these proceedings as to whether a guardian
ad litem should be appointed for the mother; therefore, any continuances regarding the outcome
of the mother’s competency were justified.
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testimony showed that petitioner denied that the mother had done anything wrong when the
children were removed. Furthermore, petitioner testified that her other daughter H.N. was a “drug
addict,” yet she and H.N. together went to West Virginia to initially obtain custody of the twins.
It is also worthwhile to note that although petitioner presented evidence that in Louisiana
she had the discretion to allow contact between the mother and K.N., the circuit court expressed
concern with petitioner’s judgment to allow this relationship and the emotional distress it caused
K.N. The court noted that K.N. referred to petitioner as Nana and to the terminated mother as her
mother, indicating that despite adopting K.N., petitioner raised her as a granddaughter and
continued to allow the child to be exposed to the emotional trauma of the mother’s repeated drug
abuse, incarcerations, and general failure to stay involved in her life. Finally, the mother indicated
in jail phone calls with petitioner that she expected to see the twins if they were placed with
petitioner, and petitioner referred to the mother as “mommy” in K.N.’s presence. Petitioner
testified that she would not allow contact with the mother if the court prohibited it, but the circuit
court found her testimony incredible considering petitioner’s close relationship with the mother
and the fact that petitioner already had adopted a sibling that she had raised as a grandchild. This
is a credibility 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, it was not in the children’s best interest to be removed from the home in which
they had lived half of their short lives and placed in a home where they had no bond with the
relatives, including petitioner. Therefore, 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 the lack of
a bond with petitioner as well as the children’s strong bond with the foster family, the concerning
family dynamics of petitioner with H.N. and the mother, the length of time the children had lived
in K.W. and M.W.’s home, and their substantial progress made while in their care.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 16, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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