In Re: P.H.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: P.H. October 20, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-0362 (Cabell County 13-JA-151) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioners, maternal grandparents C.B. and R.B., appeal the Circuit Court of Cabell
County’s March 25, 2015, order denying their motion to intervene and denying them permanent
placement of eight-year-old P.H.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s
order and a supplemental appendix. The guardian ad litem, Jacquelyn S. Biddle, filed a response
on behalf of the child in support of the circuit court’s order. Petitioner filed a reply. On appeal,
petitioner alleges that the circuit court erred in denying their motions to intervene and permanent
placement of the child.
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 filed a petition for emergency custody of P.H. alleging
that the biological mother, T.B. left P.H. in the care and custody of her drug-abusing sister, that
T.B. was the subject of prior abuse and neglect petitions; that there were issues with the child’s
hygiene; and that T.B.’s pending incarceration for probation violations related to her criminal
child neglect proceedings. T.B. stipulated that P.H. was an abused and neglected child.
Petitioners filed their motion to intervene more than one year after the underlying petition
was filed. In December of 2014, the circuit court held its dispositional hearing. Based on the
evidence presented, the circuit court found that T.B. failed to comply with her family case plan
which included adult life skills and parenting classes, substance abuse treatment, and random
drug screens. Furthermore, the circuit court found that T.B. abandoned P.H. By order entered on
December 29, 2014, the circuit court terminated T.B.’s parental rights and continued the hearing
on petitioners’ motion to intervene so that counsel could attend the hearing.
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.
1
In January of 2015, the circuit court held a hearing on petitioners’ motion to intervene.
The circuit court found that petitioners’ motion was untimely filed, that they failed to pass a
home study, and that they failed to participate in P.H.’s life. Given these findings, the circuit
court concluded that it was contrary to P.H.’s best interests to be placed with petitioners because
of his special needs and his need for psychological stability.2 By order entered March 25, 2015,
the circuit court denied petitioners’ motion to intervene. It is from this order that petitioners now
appeal.
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
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). Upon our review, the Court finds
no error in the circuit court’s order denying petitioners’ motion to intervene or permanent
placement of P.H.
On appeal, petitioners argue that the circuit court violated their right to procedural due
process in that the circuit court failed to conduct a full evidentiary hearing on their motion to
intervene. Petitioners’ argument is based on West Virginia Rule of Civil Procedure 24(a) and (b)
which provide that “[u]pon timely application anyone shall [or may] be permitted to intervene in
an action[.]” (Emphasis added).
This Court has previously held that “‘[w]hile Rule 24 of the West Virginia Rules of Civil
Procedure provides for the intervention of parties upon a timely application, the timeliness of any
intervention is a matter of discretion with the trial court.’ Syllabus Point 10, Pioneer Co. v.
Hutchinson, 159 W.Va. 276, 220 S.E.2d 894 (1975), overruled on other grounds, State ex rel.
E.D.S. Fed. Corp. v. Ginsberg, 163 W.Va. 647, 259 S.E.2d 618 (1979).” Syl. Pt. 3, State ex rel.
Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999).
2
The parties did not include a copy of the transcript from the hearing on petitioners’
motion to intervene.
2
Petitioners assert that their motion to intervene was timely because they could not gauge
their potential interest in the case because T.B. misled them during the underlying proceedings.
Petitioners’ assignment of error hinges upon on the circuit court’s discretion to determine the
timeliness of their motion to intervene. It is undisputed that petitioners were interested in the
underlying proceedings because they requested a home study as a potential permanent placement
for P.H. three months after the original petition was filed. Further, it is undisputed that
petitioners did not file their motion to intervene until more than one year after the initiation of
the underlying proceedings, and that the circuit court held a hearing on petitioners’ motion to
intervene on January 28, 2015. In its order denying petitioners’ motion to intervene, the circuit
court found that petitioners’ motion “was untimely filed” and that they failed to participate in
P.H.’s life. Given the circumstances of this case, we find no abuse of discretion in the circuit
court’s order denying petitioners’ motion to intervene as untimely.
Petitioners also argue that the circuit court erred in denying them permanent placement of
P.H. Petitioners cite to the statutory preference for placing children with grandparents, as found
in West Virginia Code § 49-3-1(a)(3). However, petitioners fail to address the fact that this code
section requires that any grandparent seeking placement of a grandchild must first undergo a
home study and have the home deemed suitable for the child’s placement. Specifically, West
Virginia Code § 49-3-1(a)(3) states, in pertinent part, that “[i]f the [DHHR] 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.”
This code section clearly requires a positive home study in order for a grandparent to be
considered as a placement option for a grandchild. This is in keeping with our prior holdings
concerning children’s best interest in custody matters, and we have specifically stated that
“[b]y 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.” Syl. pt. 5, Napoleon S. v. Walker, 217 W.Va. 254, 617
S.E.2d 801 (2005).
Syl. Pt. 3, In re Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012). Simply put, petitioners failed
to satisfy the requirements to be considered as a suitable placement for P.H. Petitioners were
precluded from consideration as a placement option due to the fact that they failed to complete a
home study for noncompliance in January of 2014. Further, there is no evidence that petitioners
attempted to reinitiate the home study. For this reasons, it is clear that the circuit court did not
err in finding that permanent placement in petitioners’ home was not in the child’s best interest
and did not err in denying that request.
For the foregoing reasons, we find no error in the decision of the circuit court and its
March 25, 2015, order is hereby affirmed.
Affirmed.
3
ISSUED: October 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4