In Re: N.H.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 12, 2016
In re: N.H. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-1199 (Greenbrier County No. 11-JA-18) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Grandmother C.W., by counsel J. Steven Hunter, appeals the order of the Court
of Greenbrier County, entered on November 10, 2015, that permanently placed N.H. with her
foster parents for adoption. The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Melinda Dugas, filed its response in support of the circuit court’s order.
The guardian ad litem (“guardian”), Michael R. Whitt, filed a response on behalf of the child
also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in refusing to place the child in her home and failed to timely grant her motion to
intervene.1
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 2013, the DHHR received a referral that N.H.’s biological mother, O.H.,
committed domestic violence in the child’s presence against petitioner. N.H. and O.H. lived in
petitioner’s home. Officer Clendenin of the Alderson Police Department investigated the matter
and noted that the police “[are] at this house at least once a week and for reports of domestic
violence.” The DHHR further investigated that matter and discovered a pending Child Protective
Services (“CPS”) investigation based upon O.H.’s drug and alcohol abuse. Petitioner admitted
that she frequently fought with O.H. and that she did not know where N.H. was during their most
recent fight. O.H. refused to cooperate with the DHHR and refused to sign a temporary
protection plan for N.H. The DHHR removed N.H. from the home. The following day O.H. was
arrested for battery on a police officer and obstruction of justice. The following month, the
DHHR filed a petition for abuse and neglect based upon the referral.
In November of 2013, petitioner filed a motion to intervene arguing that she was entitled
to notice of the proceedings. As relief, petitioner sought to attend all hearings and multi­
disciplinary team (“MDT”) meetings, and to be considered for temporary and/or permanent
placement of the child. Thereafter, the circuit court held an adjudicatory hearing during which it
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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heard arguments on petitioner’s motion to intervene. Respondents opposed petitioner’s motion to
intervene based upon the domestic violence allegations against petitioner. Ultimately, the circuit
court deferred ruling on petitioner’s motion but allowed her to receive notice of the MDT
meetings.
In February of 2014, petitioner renewed her motion to intervene. Thereafter, the circuit
court held a review hearing and heard additional arguments on petitioner’s renewed motion.
Again, respondents opposed petitioner’s motion based upon the history of domestic violence in
petitioner’s home. Ultimately, the circuit court denied petitioner’s motion to intervene but
granted her supervised visitation with N.H.
In March of 2015, petitioner filed a second renewed motion to intervene arguing that she
should be considered for placement of the child in lieu of foster care or adoption by a non-
relative. Thereafter, the circuit court held a dispositional hearing related to the termination of
O.H.’s parental rights. The circuit court continued the issue of petitioner’s second renewed
motion to intervene because it was not properly noticed for a hearing.2 Furthermore, petitioner
filed a motion for immediate transfer of the physical custody of N.H. Following a hearing on
petitioner’s second renewed motion to intervene, the circuit court found that petitioner has
asserted her rights to be considered for adoptive placement of the child, and it directed the
DHHR to conduct a home study of petitioner’s home. Additionally, the circuit court granted
petitioner supervised visitation and directed her to undergo a psychological evaluation to
determine the best interests of N.H. as to permanent placement.
In September of 2015, the circuit court held a permanency plan hearing during which the
DHHR presented Dr. Timothy Saar’s psychological evaluation. Dr. Saar concluded that N.H.
“appears to have a strong bond and attachment to [her foster parents], removing her from their
care is likely to cause her significant distress and may lead to an increase in [N.H.’s] behavioral
symptoms.” After considering the parties’ arguments, the circuit court found that the permanency
plan of adoption by N.H.’s foster parents was in N.H.’s best interest. The circuit court directed
the MDT to propose a visitation schedule for petitioner. Subsequently, by order entered
December 1, 2015, the circuit court granted petitioner visitation with N.H. on alternating
Saturdays. This appeal follows.
The Court has previously established the following standard of review:
“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
2
By order entered March 30, 2015, the circuit court terminated O.H.’s parental rights to
her child. O.H. appealed the termination and, subsequently, this Court affirmed the termination
of her parental rights. See In re: N.H., No. 15-0377, 2015 WL 5555468 (W.Va. Sept. 21,
2015)(memorandum decision).
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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 the 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 failing to apply the grandparent
preference and in finding that placement with petitioner was not in N.H.’s best interests.
Petitioner claims that the circuit court, pursuant to West Virginia Code § 49-3-1(a), should have
placed N.H. with petitioner, as her maternal grandparent, because she passed the requisite home
study and that it was in N.H.’s best interests. Upon our review, we find no error in the circuit
court’s order denying placement with petitioner.
This Court has been clear that the preference for placing children with grandparents
remains subordinate to the best interests analysis. We have held as follows:
West Virginia Code § 49-3-1(a) provides for grandparent preference in
determining adoptive placement for a child where parental rights have been
terminated and also incorporates a best interests analysis within that determination
by including the requirement that the DHHR find that the grandparents would be
suitable adoptive parents prior to granting custody to the grandparents. 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.
By specifying in W.Va. Code § 49-3-1(a)(3) that the home study must
show that the grandparents “would be suitable adoptive parents,” the Legislature
has implicitly included the requirement for an analysis by the Department of
Health and Human Resources and circuit courts of the best interests of the child,
given all circumstances of the case.
Syl. Pts. 4 & 5, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005); see also In re
Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012) (Affirming circuit court order that placed child
with foster parent over grandparent based upon the child’s best interests.); In re Hunter H., 227
W.Va. 699, 715 S.E.2d 397 (2011) (The 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.” (internal citations omitted)); In
re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010) (Holding that the grandparent preference
must be tempered by a court’s consideration of the child’s best interests.); Kristopher O. v.
Mazzone, 227 W.Va. 184, 193, 706 S.E.2d 381, 390 (2011) (Stating “compliance with federal
law does not require that a child be placed with a blood relative, it only requires that such
placement is considered.)
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Moreover, we have previously held that
“[o]nce a court exercising proper jurisdiction has made a determination
upon sufficient proof that a child has been neglected and his natural parents were
so derelict in their duties as to be unfit, the welfare of the infant is the polar star
by which the discretion of the court is to be guided in making its award of legal
custody.” Syllabus point 8, in part, In re Willis, 157 W.Va. 225, 207 S.E.2d 129
(1973).
Syl. Pt. 4, In re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010).
In this case, the circuit court properly considered petitioner for placement and weighed
the available evidence in reaching its determination. The evidence established that it is in N.H.’s
best interests to remain in her current placement. A review of the record reveals that N.H. has
spent a significant amount of her life with her foster parents. N.H.’s foster mother has “on a
continuing day-to-day basis . . . fulfilled [N.H.]’s psychological and physical needs for a parent
and provided for her emotional and financial support.” Furthermore, Dr. Saar concluded that
removing N.H. from her current placement “is likely to cause her significant distress and may
lead to an increase in [N.H.]’s behavioral symptoms.” Furthermore, while it appears that a home
study was completed on petitioner’s residence, the worker raised concerns with placing N.H. in
petitioner’s home because she minimized O.H.’s failure to comply with her improvement period
in the underlying proceedings. For these reasons, we find no error in the circuit court denying
placement of N.H. in petitioner’s home.
Petitioner also argues that the circuit court erred in timely ruling on her motions to
intervene. Petitioner’s argument is primarily based upon her assertion that the circuit court failed
to grant her temporary placement of N.H. throughout the proceedings.3 While it is true that the
circuit court did not immediately grant petitioner’s motion to intervene, the circuit court
ultimately granted petitioner’s motion to intervene. See Syl. Pt. 1, State ex rel. Lilly v. Carter, 63
W.Va. 684, 60 S.E. 873 (1908) (Holding “[m]oot questions or abstract propositions, the decision
of which would avail nothing in the determination of controverted rights of persons or of
property, are not properly cognizable by a court.”). Nevertheless, West Virginia Code § 49-6­
3(a) provides that “[u]pon the filing of a petition, the court may order that the child alleged to be
an abused or neglected child be delivered . . . into the custody of . . . a responsible person found
by the court to be a fit and proper person.” Here, the circuit court initially heard evidence of the
domestic violence in petitioner’s home. Furthermore, petitioner admitted that she was aware that
O.H. was using drugs and abusing alcohol while in her home and caring for N.H. Moreover, the
circuit court permitted petitioner to participate in MDT meetings throughout the proceeding,
granted petitioner supervised visitation, and appropriately considered petitioner for permanent
3
Petitioner’s argument is premised on her belief that the circuit court was required to
grant her motion to intervene pursuant to Rule 24(a) of the West Virginia Rules of Civil
Procedure. While this Court has decided petitioner’s argument on other grounds, we note that
Rule 24 does not apply in juvenile proceedings. See W.Va. R. of Civ. Proc. 81(a)(7) (Only Rules
5(b), 5(e), and 80 apply in juvenile proceedings.)
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placement. For these reasons, we find no compelling reason to warrant reversal of the circuit
court’s decisions.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 10, 2015, order is hereby affirmed.
Affirmed.
ISSUED: April 12, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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