In re J.T. and C.H.

FILED
November 15, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.T. and C.H.
No. 21-0136 (Raleigh County 18-JA-228-D and 18-JA-229-D)
MEMORANDUM DECISION
Petitioner Grandmother S.D. and Petitioner Step-grandfather T.B., by counsel Gavin G.
Ward, appeal the Circuit Court of Raleigh County’s January 13, 2021, order denying them
permanent placement of the children in this case, J.T. and C.H. 1 The West Virginia Department of
Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Timothy P.
Lupardus, filed a response on behalf of the children in support of the circuit court’s order. The
children’s foster parent, R.J., by counsel Winifred L. Bucy, also filed a response in support of the
circuit court’s order. On appeal, petitioners argue that the circuit court erred in accepting the
DHHR’s determination that they failed their home study and denying them 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 2018, the DHHR filed a petition against the children’s parents alleging
significant drug abuse. Relevant to this appeal, the petition included allegations that the parents
and the children were found in petitioners’ home in violation of a DHHR protection plan and that
the mother alleged that a jug of tea in petitioners’ home was spiked with methamphetamine,
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
causing her to test positive for the substance. 2 During the proceedings, the circuit court adjudicated
the parents as abusing parents and later terminated their parental rights based upon their failure to
address their substance abuse. 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 J.T., No.
20-0151, 2020 WL 5240655 (W. Va. Sept. 3, 2020)(memorandum decision).
At some point, petitioners filed a motion to intervene, which the circuit court granted, and
they were added as parties to the case. On October 7, 2020, the circuit court held a permanency
review hearing regarding permanent placement of the children. Petitioners presented the testimony
of their other daughter and her husband, as well as a family friend. Their testimonies indicated that
petitioner S.D. previously cared for J.T. at various times during his life due to the mother’s drug
abuse. The witnesses testified to petitioner S.D.’s bond with the child, the quality of her caretaking,
and her home conditions. Each witness opined that petitioners were appropriate placements and
were capable of caring for the children.
Petitioner S.D. testified and requested placement of the children. She stated that she had
ceased contact with the children’s mother and had not seen her in over a year. Petitioner S.D.
testified that she had cared for J.T. frequently prior to the petition’s filing due to the mother’s drug
abuse and that she had a strong bond with the child. Petitioner S.D. stated that she attempted to get
placement of the children during the proceedings but that she was denied placement because of
petitioner T.B.’s criminal history. Petitioner S.D. acknowledged that petitioner T.B. “messed up”
but argued that “everybody deserves a second chance.” According to petitioner S.D., petitioner
T.B. was convicted of driving under the influence causing death after he was involved in a vehicle
accident where two other people were killed. Petitioner S.D. testified that petitioner T.B. no longer
drank alcohol and had steady employment, describing him as a “workaholic.” Aside from
petitioner T.B.’s criminal history, petitioner S.D. stated that neither the CPS worker nor the
guardian indicated any barrier to placing the children in their home, and petitioner S.D. further
noted that the home was clean and appropriate. Petitioner S.D. also testified that she participated
in every visit with the children that she was granted. However, because petitioner S.D. was
permitted to attend visits with the mother, her visits ceased when the mother’s visits were stopped
due to the mother’s noncompliance with services.
On cross-examination, petitioner S.D. denied the mother’s allegations at the initiation of
the case that a jug of tea spiked with methamphetamine was in petitioner S.D.’s house. Petitioner
S.D. also denied knowing that there was a safety plan in place at the time of the petition’s filing,
stating she had not been a part of the plan and, thus, was unaware that she was allegedly in violation
of the same. Petitioner S.D. admitted that she allowed the mother to live with her for two or three
months during the proceedings while the mother looked for an apartment. Petitioner S.D. stated
2
At the time of C.H.’s birth, the DHHR implemented in-home safety services to protect the
children from the parents’ drug abuse. Eventually, the parents agreed that the mother and the
children would reside in the home of a friend and that the father would not have contact with the
children due to his continued drug abuse. However, as noted above, the mother took the children
to petitioner’s home to meet the father, in violation of their agreement with the DHHR. Although
petitioner cared for J.H. at times prior to the petition’s filing, she never cared for C.H.
2
that she did not know that the mother was not in compliance with services at that time because she
did not have access to the proceedings.
Petitioner T.B. testified regarding his prior conviction for driving under the influence
causing death. Petitioner T.B. stated that he was never disciplined or reprimanded during his
incarceration or release on parole, that he discharged his sentence, and that he had no other felony
convictions. Petitioner T.B. testified that he no longer consumed alcohol and had stable
employment.
The foster mother presented the testimony of an employee of Pressley Ridge, a foster care
agency. The employee testified that, at the time the children were removed from the mother’s
custody, the DHHR sent a referral to Pressley Ridge indicating that the mother, the father, and the
children were found in petitioners’ home in violation of a safety plan. The employee further noted
that the referral contained the mother’s report that a jug of tea containing methamphetamine was
in petitioners’ home. The employee stated that she initiated background checks on petitioners and
that “[i]t came back there was a CPS background on [petitioner S.D.], and a criminal background
on [petitioner T.B.] for the State of West Virginia.” The employee testified that “there was also a
CPS record for her in Florida” but that she did not have access to those records. 3 The employee
stated that, based on the CPS records and criminal background report, petitioners could not be
approved as foster placements. The employee acknowledged that there was a waiver available and
testified that the grant of a waiver was considered on a case-by-case basis. However, the employee
stated that it was very rare that waivers were granted for “substantial criminal records.” The
employee testified that a waiver was considered in petitioners’ case but was not granted by Pressley
Ridge due to petitioner T.B.’s criminal record. On cross-examination, the employee admitted that
she did not know whether petitioner S.D.’s Florida CPS record included an “actual substantiation,”
and simply noted that “it was flagged.”
Following testimony, the circuit court continued the hearing, allowing the parties time to
submit proposed orders and written recommendations. At the reconvened permanency hearing
held in January of 2021, the guardian recommended that the children remain in the care of their
foster mother. The guardian stated that petitioners did not pass a home study due to their CPS and
criminal history. Further, the children had remained in the foster mother’s home since November
of 2018, and the youngest child had been placed with her directly at birth. The guardian opined
that removing the children from the home would be detrimental to them given the strides they had
made in the foster mother’s home. Although the guardian noted that petitioners’ home was
appropriate and that petitioner T.B. was rehabilitated, the guardian opined that the best interest of
the children necessitated that they remain in the foster mother’s care.
Ultimately, the circuit court adopted the guardian’s recommendation and granted
permanent placement of the children to the foster mother. The circuit court found that the younger
child had never lived with petitioners and that the older child had not lived with them in over two
3
Although the Pressley Ridge employee’s statement seems to indicate that petitioner S.D.
had a CPS history in West Virginia, a review of the transcript indicates that the background check
revealed only the Florida history and at no point did the employee discuss any substantiations in
West Virginia.
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years, meaning the child had spent twice the amount of time with the foster mother that he had
spent in petitioners’ home prior to the proceedings. The circuit court further found that it was
“amazing how well the children are doing” in the foster mother’s care and that the grandparent
preference had not been triggered due to the failed home study. The circuit court concluded that it
would be detrimental to the children to be removed from the foster mother’s care and that it was
in their best interests to remain in that placement. Petitioners appeal the January 13, 2021, order
denying them placement of the children. 4
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).
On appeal, petitioners argue that the circuit court erred in accepting the DHHR’s
determination that petitioners failed a home study without requiring the DHHR to “complete the
statutorily mandated home study of [their] home.” According to petitioners, multiple issues were
raised with their suitability, including an alleged jug of spiked tea in their home, prior CPS
involvement, and petitioner T.B.’s felony conviction. Petitioners refute that they ever had
methamphetamine-laced tea in their home and further contend that they were not permitted to
address these issues during the proceedings below. Petitioners aver that the mother’s accusations
with regard to the jug of tea were considered early on in the proceedings when they were not parties
to the case and, therefore, they were unable to dispute these accusations or cross-examine the
mother in that regard. Petitioners also contend that a waiver should have been considered regarding
petitioner T.B.’s criminal history given that the guardian opined that he was rehabilitated and that
he had no other substantial criminal record. Petitioners further argue that no evidence was
presented regarding any prior CPS allegations, which prevented them from defending themselves,
and that the DHHR relied on this alleged history, in part, to deny petitioners a proper home study.
Finally, petitioners argue that the circuit court improperly weighed the totality of the
circumstances and erred in granting permanent placement of the children to the foster mother.
Petitioners distinguish several cases wherein this Court found that the lower court did not err in
4
According to respondents, the permanency plan for the children is adoption in their foster
home.
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granting placement of the children to the foster parents. Petitioners note that, unlike the
grandparents in those cases, they sought placement of the children from the beginning of the
proceedings and had not and would not allow the children around the parents. Petitioners further
argue that there was no expert testimony regarding any negative impacts of placing the children
with petitioners over the foster mother, and the guardian described petitioners’ home as “great.”
Petitioners state that, but for the passage of time in the case, the guardian likely would have
recommended placement of the children with petitioners.
On this issue, we have previously held that
[w]hile the grandparent preference statute 5. . . 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 . . . . [T]he 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)).
Petitioners’ argument regarding the DHHR’s failure to conduct a home study is unavailing
given that the DHHR considered placement of the children with petitioners but found their home
to be unsuitable. 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
5
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.
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established that petitioners had a prior CPS history, as well as a felony criminal conviction,
rendering petitioners unsuitable for placement per DHHR policy and absolving the DHHR of its
duty to perform a home study. While petitioners spend ample time on appeal refuting any
testimony from earlier in the proceedings regarding the alleged spiked jug of tea in their home, the
record demonstrates that the circuit court gave little, if any, consideration to this allegation in
denying petitioners placement of the children. Rather, the circuit court considered petitioners’ prior
CPS and criminal history, as well as the children’s best interests and the length of time the children
spent in the foster mother’s home.
Although petitioners state that there was no evidence presented regarding any prior CPS
history, the record below demonstrates that an employee from the Pressley Ridge foster agency
initiated a background check on petitioners and that the State of Florida reported a CPS history.
Petitioners failed to offer any evidence to dispute that they were involved with CPS in Florida or
explain that the allegations against them were unsubstantiated. Further, petitioners admitted to
petitioner T.B.’s prior felony conviction for driving under the influence causing the deaths of two
people and failed to demonstrate that either Pressley Ridge or the DHHR acted arbitrarily or
capriciously in denying them a waiver. The Pressley Ridge employee’s testimony indicated that a
waiver in this case was considered but denied based upon this criminal history and that waivers
are rarely granted for felony convictions such as this. 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 permanent placement of the children in the foster mother’s home was in their best interests
given petitioners’ inability to pass a home study, as well as the children’s bond with the foster
mother, the length of time they had lived in her home, and their substantial progress while in her
care.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 13, 2021, order is hereby affirmed.
Affirmed.
ISSUED: November 15, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
Justice William R. Wooton
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Wooton, J., dissenting:
I disagree with the majority’s affirmance of this case in a memorandum decision; I would
have set the matter for oral argument to better address whether the circuit court erred in denying
petitioners grandmother and step-grandfather permanent placement of the children. Petitioners
argue that the circuit court abused its discretion by denying their motion for permanent placement,
and by accepting the Department of Health and Human Resources’ (“DHHR”) determination that
they failed a home study. Because I question whether the evidence offered by the DHHR supported
the circuit court’s decision, I respectfully dissent.
During the proceedings below, one witness testified that background checks run on
petitioners showed that petitioner grandmother had a prior Child Protective Services (“CPS”) “hit”
in the State of Florida. However, the witness had no information regarding the nature of the alleged
CPS history. Further, the witness stated that the background check showed that petitioner step-
grandfather had previously been convicted of DUI causing death. Significantly, both the guardian
ad litem (“guardian”) and the circuit court made statements about the extent of petitioner step-
grandfather’s rehabilitation following his conviction. Because of the lack of evidence surrounding
the CPS history in Florida and petitioner step-grandfather’s noted rehabilitation following his
conviction, this Court should have placed this case on the docket to more thoroughly consider
whether sufficient evidence existed to deny petitioners permanent placement of the children.
. For all the foregoing reasons, I respectfully dissent.
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