In re A.A.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________
April 26, 2022
No. 21-0019 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE A.A.
____________________________________________________________
Appeals from the Circuit Court of Pleasants County
The Honorable Timothy L. Sweeney, Judge
Case No. 19-JA-21
AFFIRMED
____________________________________________________________
Submitted: January 4, 2022
Filed: April 26, 2022
John M. Butler, Esq. Patrick Morrisey, Esq.
Law Office of John M. Butler Attorney General
St. Marys, West Virginia Andrea Nease Proper, Esq.
Counsel for Petitioner B.M. Assistant Attorney General
Charleston, West Virginia
David C. White, Esq. Counsel for Respondent West Virginia
Law Office of Neiswonger and White Department of Health and Human
Moundsville, West Virginia Resources
Guardian ad Litem for A.A.
Jessica E. Myers, Esq.
Myers Law Offices
Parkersburg, West Virginia
Counsel for Respondents K.V. and N.V.
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ALAN D. MOATS, sitting by temporary assignment, not participating.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. “‘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).
3. “The Uniform Child Custody Jurisdiction and Enforcement Act, West
Virginia Code § 48-20-101, et seq., is a jurisdictional statute, and the requirements of the
statute must be met for a court to have the power to adjudicate child custody disputes.”
Syl. Pt. 6, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008).
i
4. “‘“Lack of jurisdiction may be raised for the first time in this court,
when it appears on the face of the bill and proceedings, and it may be taken notice of by
this court on its own motion.” Syllabus Point 3, Charleston Apartments Corp. v.
Appalachian Elec. Power Co., 118 W. Va. 694, 192 S.E. 294 (1937).’ Syl. Pt. 3, Lewis v.
Munic. of Masontown, 241 W. Va. 166, 820 S.E.2d 612 (2018).” Syl. Pt. 4, In re Z.H., 245
W. Va. 456, 859 S.E.2d 399 (2021).
5. “All courts must be watchful for jurisdictional issues arising under the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), West Virginia
Code §§ 48-20-101 to -404 (2001). Even if not raised by a party, if there is any question
regarding a lack of subject matter jurisdiction under the UCCJEA then the court should sua
sponte address the issue as early in the proceeding as possible.” Syl. Pt. 5, In re Z.H., 245
W. Va. 456, 859 S.E.2d 399 (2021).
6. “Pursuant to West Virginia Code § 48-20-102(g) (2001), ‘home state’
means the state in which the child lived with a parent or a person acting as a parent for at
least six consecutive months immediately before the commencement of a child custody
proceeding.” Syl. Pt. 3, in part, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008).
7. “‘To determine whether a state qualifies as a child’s “home state” for
purposes of determining initial jurisdiction under W. Va. Code § 48-20-201(a) (Repl. Vol.
2009), a court must analyze whether any state qualified as the child’s “home state” at any
ii
time within the six months immediately preceding commencement of the action.’ Syl. Pt.
3, In re K.R., 229 W. Va. 733, 735 S.E.2d 882 (2012).” Syl. Pt. 6, In re Z.H., 245 W. Va.
456, 859 S.E.2d 399 (2021).
8. “West Virginia Code § 49-3-1(a) [now § 49-4-114(a)(3)] 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 viewed in its entirely establishes that such placement is not in the best interests
of the child.” Syl. Pt. 4, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
iii
WOOTON, Justice:
In June 2019, Child Protective Services (“CPS”) temporarily removed the
minor child A.A. 1 from a hotel room in St. Marys, West Virginia, after her father, M.A.,
was arrested for unlawful possession of firearms. At the time of removal, CPS contacted
A.A.’s paternal grandmother, Petitioner B.M. (“Petitioner”), to take custody of the child.
Petitioner declined to take custody, so the DHHR placed A.A. with the Respondent Foster
Parents, K.V. and N.V. (“Respondent Foster Parents”). Shortly thereafter, the West
Virginia Department of Health and Human Resources (“DHHR”) filed an abuse and
neglect petition alleging that A.A. was found in the hotel room with an unrelated person,
and that drugs and drug paraphernalia were also in the room. The petition further alleged
that M.A. and the child’s biological mother, D.A., were habitual drug users such that they
could not care for the child. The petition indicated that A.A.’s last known residence was
in South Carolina.
Ten months after the underlying proceedings began, Petitioner intervened in
and filed a motion to transfer custody of A.A. to her, asserting the statutory grandparent
preference. After an evidentiary hearing the circuit court denied that motion, finding that
such a transfer would not be in A.A.’s best interest. Petitioner now appeals that order,
asserting, among other things, that the circuit court lacked jurisdiction over the proceedings
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).
1
under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), West
Virginia Code §§ 48-20-101 to -404 (2001). Because we find that the circuit court
appropriately exercised jurisdiction in this matter, and because we find Petitioner’s
remaining assignments of error to be without merit, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to this appeal are somewhat complicated; we must
necessarily examine matters that occurred before the inception of the underlying abuse and
neglect matter in order to resolve the jurisdictional question raised. Therefore, to set out
the facts in a manner most conducive to our analysis, we have divided this recitation into
separate, chronological categories.
A. Pre-Petition
A.A. was born in Washington, Pennsylvania, in July 2015. Shortly after her
birth she and the biological parents, M.A. and D.A., moved to New Martinsville, Wetzel
County, West Virginia. The record contains little to no information about A.A.’s place of
residence from the time she moved to New Martinsville until the filing of an abuse and
neglect petition in Wetzel County on May 3, 2018 (the “2018 petition”).
The 2018 petition alleged that A.A.’s mother, D.A., appeared at the New
Martinsville Police Department in April 2018 while under the influence of controlled
substances. A.A. was with her at the time. D.A. informed the police that A.A.’s father,
2
M.A., had kidnapped the child from Petitioner’s home in New Jersey in March 2018. 2 The
petition further alleged that: D.A. was homeless; M.A. was absent; both parents suffered
from substance abuse issues; and there was no family to take custody of A.A. After a
hearing, the Circuit Court of Wetzel County dismissed the 2018 petition on May 16, 2018,
without explanation. There is nothing in the record establishing the reason for the
dismissal, nor has an explanation been proffered by the parties to the instant appeal. That
said, the parties make multiple allusions to Petitioner’s conduct after the dismissal of the
petition, and in particular that she transported the child back to New Jersey.
We can further glean from the record that A.A. returned to West Virginia at
some point in the summer of 2018, as both Petitioner and the Respondent Foster Parents
testified that A.A. was in the care of the Respondent Foster Parents for approximately two
weeks ending in mid-August 2018 after M.A. left the child in their home. 3 After leaving
the Respondent Foster Parents’ home in August 2018, it is undisputed that A.A. traveled
2
We note that there is nothing in the record which either substantiates these
allegations or indicates that Petitioner, and not M.A., had legal custody of the child at this
time.
3
The testimony presented below indicates that M.A. was in a relationship with the
Respondent Foster Parents’ daughter, K.S., at the time, and that the two were engaged in
the abuse of controlled substances
3
to Pennsylvania where she resided with M.A. and Petitioner until relocating to South
Carolina at the beginning of February 2019. 4
B. Removal and the Filing of the Instant Petition
On June 5, 2019, following a high-speed chase, M.A. was arrested in Ohio
County, West Virginia, for unlawful possession of firearms. The same day A.A. was
removed from a hotel room in St. Marys, Pleasants County, West Virginia. Evidence
adduced below establishes that M.A. brought A.A. to West Virginia three days prior to her
removal.
At the time of removal, A.A. was found in a hotel room with an unrelated
adult woman, and it was determined that drugs and drug paraphernalia were present in the
room. Beyond this, the facts become somewhat unclear, but we can glean from the
record—largely based on Petitioner’s testimony below—that when Child Protective
Services (“CPS”) arrived at the hotel room to remove A.A., the unrelated adult woman
contacted Petitioner by telephone to inform her that M.A. had been arrested and that CPS
was taking custody of the child. At some point during that conversation, the attending CPS
4
We take care to note that, as discussed infra, Petitioner testified that she moved
from Pennsylvania to South Carolina in February 2019, but she also separately testified
that she only resided in Pennsylvania until January 2019. Specifically, she testified, “I got
a house there [in Pennsylvania] and [M.A.] and [A.A.] came to my house there. [M.A.]
was drug free and we stayed there until January when I was just there to finish up a job.”
(Emphasis added). Therefore, we can infer from the record that the relocation to South
Carolina happened, at the latest, early in February 2019.
4
worker spoke to Petitioner and asked if she would take custody of A.A. It is undisputed
that Petitioner declined to take custody of the child because she feared she would not pass
a home study as her other adult son, a felon on parole, was living in her home. Petitioner
then suggested CPS place A.A. with the Respondent Foster Parents as they had previously
provided care for her. 5 Respondent Foster Mother also testified below that
[Petitioner] asked if we could get her, get [A.A.]. We went and
got [her] and at that point CPS was there. So CPS and [the
unrelated woman] was there, the other girl in the hotel room.
And [the unrelated woman] was on speaker phone. [Petitioner]
was on the phone with her when we got there. They were all
on the phone the whole time even when CPS brought [A.A.] to
our home.
At this point, the CPS worker informed Petitioner that she should seek assistance from an
attorney. 6
Upon removing A.A. from the hotel room, the DHHR filed an application
for ratification of the emergency removal in the Circuit Court of Pleasants County. That
5
It appears from the record that the Respondent Foster Parents were identified as a
relative/kinship placement for A.A. The parties disagree about how this notation came
about, as the Respondent Foster Parents assert they did not hold themselves out to be
relatives of the child. We note that the parties all testified at the permanency hearing in
this matter that the Respondent Foster Parents are not related to A.A. by blood, marriage,
or adoption.
6
Petitioner further testified that she did not immediately seek legal assistance, but
instead waited to see if M.A.’s and D.A.’s parental rights were terminated before becoming
involved in the case.
5
application listed A.A.’s last known residence as an address in Anderson, South Carolina.
The circuit court entered an order ratifying the removal on June 6, 2019.
On June 7, 2019, the DHHR filed the instant abuse and neglect petition (the
“2019 petition”) alleging as follows: (1) M.A. was arrested and incarcerated; (2) A.A. was
located in a hotel room with an unrelated adult woman and suspected controlled substances
and drug paraphernalia; (3) D.A.’s whereabouts were unknown; (4) both M.A. and D.A.
were habitual users of illegal controlled substances; and (5) neither M.A. nor D.A. were
presently able to provide care for A.A. Additionally, the 2019 petition alleged that “[a]t
the time of the removal, the child [A.A.] resided with the respondent father at St. Marys
Motel” in Pleasants County, but also that the child had at different times lived in Anderson,
South Carolina, New Martinsville, West Virginia, and an unknown address in New Jersey.
C. The Abuse and Neglect Proceedings
M.A. and D.A. waived their preliminary hearings on June 13, 2019. The
circuit court then scheduled an adjudicatory hearing for July 24, 2019, but such hearing
was continued multiple times. Ultimately, D.A. stipulated to the allegations raised in the
2019 petition, admitting that she engaged in the abuse of controlled substances to the extent
that her parenting was impaired and she could not provide for A.A. Thereafter, the circuit
court adjudicated D.A. an abusive and neglectful parent, and granted her a post-
adjudicatory improvement period by order dated October 2, 2019. D.A. failed to
participate in the terms of that improvement period insofar as she failed to submit to
6
random drug screening, so the circuit court proceeded to disposition with regard to her
parental rights on November 9, 2019. The circuit court determined there was no reasonable
likelihood the conditions of neglect or abuse could be substantially corrected in the near
future as a result of D.A.’s unwillingness to comply with the terms of her improvement
period, and thus terminated her parental rights by order dated December 10, 2019.
Throughout the proceedings, M.A. remained incarcerated. His adjudicatory
hearing was held on December 16, 2019, and the circuit court entered an order adjudicating
him an abusing and neglectful parent on February 13, 2020. The record does not contain
a motion on the part of M.A. for a post-adjudicatory improvement period, nor does it appear
the circuit court granted him one. Instead, the circuit court set the matter for disposition,
and such disposition was repeatedly continued due to M.A.’s unavailability resulting from
his multiple prison transfers. The dispositional hearing finally occurred on February 24,
2020, but the circuit court left the record open until March 5, 2020, so M.A. could file with
the court his federal sentencing orders. The circuit court ultimately determined that M.A.
was unable to correct the conditions of abuse and neglect in the foreseeable future,
considering not only his incarceration, but also his inability to participate in an
improvement period, his lengthy history of criminal behavior, and illegal drug use. As
such, the circuit court terminated M.A.’s parental rights by order dated April 28, 2020.
7
D. Petitioner’s Intervention and Motion to Transfer Physical Custody
On April 13, 2020, approximately two weeks before entry of the order
terminating M.A.’s parental rights, Petitioner filed a motion to intervene in the
proceedings. In her motion, she alleged that she was A.A.’s paternal grandmother and that
it would be in the best interest of A.A. to grant the motion. Upon receiving no objection,
the circuit court granted the motion on July 15, 2020. In the same order, the circuit court
directed the DHHR to conduct a proper home study of Petitioner’s residence to determine
whether she would be a suitable placement for A.A. 7
On August 5, 2020, before the home study took place, Petitioner filed a
“Motion for Transfer of Physical Custody,” seeking the transfer of A.A. from the
Respondent Foster Parents to her. In the motion, Petitioner contended that A.A. “spent a
majority of her time living with [Petitioner]” for the two years preceding the initiation of
the 2019 abuse and neglect proceedings. Notably, Petitioner also contended that she sought
placement of A.A., but that the DHHR “took no steps to do a home study or consider her
as a placement even after termination of the parental rights.” She further alleged that she
had engaged in video visits with A.A. during the pendency of the case. Finally, she stated
that she made arrangements to relocate to West Virginia from Georgia.
It does not appear Petitioner resided in West Virginia at the time of the order;
7
however, she did relocate to West Virginia from Georgia sometime in July or August 2020.
8
Thereafter, the circuit court set a hearing on Petitioner’s motion for transfer
of custody, stylized as a permanency hearing, for October 21, 2020. Respondent Foster
Parents moved to intervene on October 5, 2020, and such motion was granted. A home
study was conducted on Petitioner’s home in Moundsville, West Virginia, on September
24, 2020, and flagged no safety concerns with the home.
At the October 21, 2020, hearing, the circuit court heard testimony from
several witnesses, including Petitioner and the Respondent Foster Parents. While we need
not recount all of the testimony presented, certain developments are pertinent to our
analysis in this matter. Specifically, with regard to A.A.’s residences, Petitioner testified
that A.A. originally moved to New Martinsville, West Virginia, with her biological parents
shortly after her birth in 2015. She then testified that the child resided in New Jersey with
her and M.A. for some time in the spring of 2018 before and after the 2018 abuse and
neglect proceedings in Wetzel County. The Respondent Foster Mother testified that A.A.
resided in her home for approximately two weeks in mid-August 2018. Petitioner
confirmed this testimony and noted that, upon leaving the Respondent Foster Parents’
home, A.A. stayed with Petitioner in Pennsylvania “until January [2019].” 8 Petitioner then
testified she relocated from Pennsylvania to South Carolina in February 2019, and A.A.
8
See supra note 4.
9
resided with her and M.A. in that home until M.A. took the child to West Virginia in June
2019.
Petitioner further testified that, during the pendency of the proceedings, she
moved from South Carolina to Georgia, and ultimately to West Virginia. Notably, upon
moving to West Virginia, Petitioner did not move to a community close to A.A. in
Pleasants County, but instead moved to Moundsville, Marshall County, West Virginia,
fifteen to thirty minutes from M.A.’s current address. 9 While Petitioner initially testified
she wanted to relocate nearer to A.A., she also needed to move quickly to ensure the home
study could be completed, so she had to take what housing was available. However, when
pressed further about this by the circuit court, Petitioner conceded that she was unable to
find an apartment in Pleasants County that would allow her to have pets, and that her
animals were “part of [her] family[.]” Petitioner further responded in the affirmative when
the court asked her, “You chose your dog and cat over your granddaughter, correct?”
Various witnesses also testified as to A.A.’s developmental delays and her
improvements while in the Respondent Foster Parents’ home. When A.A. was first
removed from the hotel room in St. Marys, she was nonverbal and unable to use eating
utensils, bathe or dress herself, or sit in a chair. Since the time of her placement with the
Respondent Foster Parents, A.A. is now partially verbal, understands sign language, and
M.A. was released from incarceration on September 11, 2020, at which time he
9
moved to Triadelphia, Ohio County, West Virginia.
10
can eat and bathe independently. Further, she has been enrolled in a public school where
she has an aide who accompanies her during the day.
Petitioner acknowledged these delays but debated their severity.
Specifically, she asserted that A.A. would eat from a fork when the same was held by
Petitioner. She testified that when the child was in the home with her, she attempted to
seek enrollment for A.A. in a specialized program for autistic children. She noted that she
had taken A.A. to a doctor in South Carolina to seek a recommendation for that program.
Moreover, Petitioner presented conflicting testimony about the amount and consistency of
care she provided to A.A. while the child was in her home. Notably, Petitioner
acknowledged that M.A. would take the child and leave sporadically, but that she would
try to persuade him to leave the child with her. It is unclear how frequently this occurred
or how successful Petitioner was in persuading M.A. to leave the child in her care.
Additionally, the court heard testimony from one witness, K.S., that she
witnessed Petitioner providing M.A. with an illegal substance. 10 Finally, the guardian ad
litem testified to his belief that it would be in the child’s best interest to remain in her
current placement with the Respondent Foster Parents because such placement had proven
10
The circuit court found that by engaging in this conduct, Petitioner facilitated
M.A.’s abuse of controlled substances.
11
beneficial to her development and afforded her the structure needed to ensure future
improvement.
At the conclusion of the hearing, the circuit court indicated that it would deny
Petitioner’s motion to transfer custody—and, in fact, did so by order dated December 3,
2020. In reaching this conclusion, the circuit court noted several instances in which
Petitioner had prioritized the interests of others over those of A.A., including: (1) declining
placement of the child at the time of removal so her son, a paroled felon, could continue to
reside in her home; (2) transporting A.A. to New Jersey after the 2018 abuse and neglect
proceedings; (3) relocating closer to M.A., rather than A.A., when she moved to West
Virginia; and (4) selecting an apartment that permitted her to have pets rather than moving
closer to A.A. The circuit court also expressed its concerns that Petitioner would seek to
“end run” around the proceedings and afford M.A. access to A.A. if granted custody,
despite M.A.’s parental rights having been terminated. 11 The circuit court further noted
that Petitioner did not attempt to assert her custodial rights until it was clear M.A.’s parental
11
This finding, while supported by other evidence in the record, stems at least
partially from the guardian ad litem having expressed concerns to the circuit court that
Petitioner would merely take custody of A.A. and hand the child over to the father. The
guardian founded his concerns not just on the case at bar, but circumstances arising from
the 2018 petition in Wetzel County where he also served as the guardian ad litem. At the
conclusion of the 2018 case, Petitioner transported A.A. from West Virginia to M.A. in
New Jersey. As discussed further infra, while we do not have a complete record for the
2018 petition, we cannot definitively say that Petitioner’s conduct at the conclusion of
those proceedings was improper as M.A.’s parental rights remained intact at the conclusion
of the proceedings.
12
rights would be terminated. Finally, the circuit court addressed the developmental delays
A.A. suffered while allegedly in Petitioner’s care and noted that such delays were markedly
improving while A.A. was in the Respondent Foster Parents’ care. Upon examining the
foregoing testimony and comparing the two placement options, the circuit court ultimately
found that it was in A.A.’s best interest to remain in her present placement with the
Respondent Foster Parents and, thus, denied Petitioner’s motion to transfer custody.
Petitioner now appeals that order.
II. STANDARD OF REVIEW
This matter involves a question of subject matter jurisdiction under the
UCCJEA. We have held that “jurisdictional issues are questions of law[.]” State ex rel.
Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 343, 801 S.E.2d 216, 221
(2017)(citation omitted). “Where the issue on appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M., v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
Further, our general standard of review in abuse and neglect cases is as
follows:
“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 the determination based upon the
evidence and shall make findings of fact and conclusions of
law as to whether such a child is abused and neglected. These
findings shall not be set aside by a reviewing court unless
13
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 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). With these standards in
mind, we now proceed to address the parties’ arguments on appeal.
III. ANALYSIS
Petitioner raises multiple arguments. Specifically, she asserts that the circuit
court: (1) lacked jurisdiction over the underlying abuse and neglect petition—and therefore
her motion to transfer custody—under the UCCJEA; (2) erred in failing to name her as a
party in the original proceedings because she was A.A.’s pre-petition custodian; (3) erred
in failing to evaluate placement of A.A. in her home pursuant to the so-called “grandparent
preference” in West Virginia Code § 49-4-114(a)(3) (2015); (4) improperly concluded
Petitioner was at fault for the extensive delay in seeking custody of A.A.; (5) improperly
admitted and relied upon the undisclosed testimony of a witness; (6) improperly concluded
that transfer of the child to Petitioner’s home would place undue stress on the child; and
(7) erred in relying on speculative findings regarding whether Petitioner would permit the
child’s father to have access to her.
14
The DHHR, guardian ad litem, and Respondent Foster Parents filed response
briefs arguing that all of Petitioner’s assignments of error lack merit. For the reasons
explained below, we agree with the collective respondents.
A. Uniform Child Custody Jurisdiction and Enforcement Act
Petitioner first argues that the circuit court improperly exercised jurisdiction
over the case sub judice in violation of the UCCJEA. Specifically, she contends that South
Carolina has home state jurisdiction over the proceedings because A.A. resided in that state
for six months.
We have previously recognized that the UCCJEA “is a model law adopted in
West Virginia that governs subject matter jurisdictional issues for all child custody
proceedings, including abuse and neglect proceedings.” In re Z.H., 245 W. Va. 456, 463,
859 S.E.2d 399, 406 (2021). In fact, West Virginia Code § 48-20-102(d) explicitly defines
a “child custody proceeding” to include abuse and neglect matters. As a result, this Court
has held that “[t]he [UCCJEA], West Virginia Code § 48-20-101, et seq., is a jurisdictional
statute, and the requirements of the statute must be met for a court to have the power to
adjudicate child custody disputes.” Syl. Pt. 6, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d
743 (2008).
In the case at bar, Petitioner, despite having intervened below, did not argue
before the circuit court that it lacked jurisdiction over these proceedings. Rather, she raises
15
this argument for the first time on appeal. In this regard, we have held that “[l]ack of
jurisdiction may be raised for the first time in this court, when it appears on the face of the
bill and proceedings, and it may be taken notice of by this court on its own motion.” Z.H.
245 W. Va. at 459, 859 S.E.2d at 402, syl. pt. 3 (internal citations omitted). We explained
in Z.H. that
[a]lthough we will address the application of the UCCJEA in
this appeal, we emphasize that the issue should have been taken
up at the beginning of the circuit court proceeding. “The
urgency of addressing problems regarding subject-matter
jurisdiction cannot be understated because any decree made by
a court lacking jurisdiction is void.” State ex rel. TermNet
Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619 S.E.2d
209, 213 (2005) (citation omitted).
245 W. Va. at 463-64, 859 S.E.2d at 406-07. Accordingly, while we address Petitioner’s
jurisdictional argument on appeal, we once again stress that the circuit court should have
handled this at the outset of these proceedings, even if it had to do so sua sponte. For this
reason, we once again caution that “[a]ll courts must be watchful for jurisdictional issues
arising under the [UCCJEA] []. Even if not raised by a party, if there is any question
regarding a lack of subject matter jurisdiction under the UCCJEA then the court should sua
sponte address the issue as early in the proceeding as possible.” Id. at 459, 859 S.E.2d at
402, syl. pt. 5 (emphasis added).
The UCCJEA, specifically West Virginia Code § 48-20-201(a) (2015), lists
four bases for initial jurisdiction over child custody proceedings: (1) “home state”
jurisdiction; (2) “significant connection” jurisdiction; (3) “declination” jurisdiction; and
16
(4) “default” jurisdiction. We have previously explained that these jurisdictional bases are
listed in order of priority. See In re K.R., 229 W. Va. 733, 740, 735 S.E.2d 882, 889 (2012).
We address each of these in turn.
a. “Home State” Jurisdiction
Petitioner contends that the circuit court could not exercise jurisdiction in
this matter because the State of South Carolina had home state jurisdiction. In support of
this contention, she asserts that the application for ratification of emergency custody and
the initial abuse and neglect petition both list A.A.’s residence as an address in Anderson,
South Carolina. It is true that the documents list this address, and while we are greatly
troubled that the circuit court did not find it prudent in light of that fact to undertake a
jurisdictional analysis, we do not believe that under the UCCJEA the mere listing of an
out-of-state address is sufficient to thwart jurisdiction—or to confer jurisdiction on the state
in which the address is located. Rather, a more thorough analysis is required to determine
whether the child’s residence at that out-of-state address is sufficient to satisfy any of the
jurisdictional bases listed in West Virginia Code § 48-20-201(a). Because the circuit court
did not undertake that analysis below, we do so now.
West Virginia Code § 48-20-201(a)(1) provides that West Virginia may
exercise jurisdiction if West Virginia “is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child within six months
before the commencement of the proceeding, and the child is absent from this state but a
17
parent or person acting as a parent continues to live in this state[.]” We quoted this statute
verbatim in a prior holding, wherein we explained that “‘home state’ means the state in
which the child lived with a parent or a person acting as a parent for at least six consecutive
months immediately before the commencement of a child custody proceeding.’” Rosen,
222 W. Va. at 404, 664 S.E.2d at 745, syl. pt. 3, in part. To this end, we have further
clarified that “[t]o determine whether a state qualifies as a child’s ‘home state’ for purposes
of determining initial jurisdiction under W. Va. Code § 48-20-201(a) (Repl. Vol. 2009), a
court must analyze whether any state qualified as the child’s ‘home state’ at any time within
the six months immediately preceding commencement of the action.” Z.H., 245 W. Va. at
459, 859 S.E.2d at 402, syl. pt. 6 (quoting K.R., 229 W. Va. at 734, 735 S.E.2d at 883, syl.
pt. 3) (emphasis added).
None of the parties argue that West Virginia is A.A.’s home state. Having
reviewed the record, we believe such an argument would have been futile. A.A. has moved
sporadically from state to state for much of her young life, having resided at various times
in West Virginia, New Jersey, Pennsylvania, and South Carolina. There are large gaps in
the record which do not allow us to determine whether A.A. ever lived in West Virginia
long enough—six consecutive months—to establish home state jurisdiction, but she
certainly did not do so in the six months preceding the commencement of this action.
Therefore, in order for West Virginia to have properly exercised jurisdiction in this matter,
it must have done so under one of the other three jurisdictional bases. However, before we
18
can move to those other bases, we must examine whether any other state could have
properly exercised home state jurisdiction at the time these proceedings were commenced.
As noted above, Petitioner contends that South Carolina was A.A.’s home
state because the child and her father allegedly resided in Petitioner’s home in Anderson,
South Carolina, for six months prior to the commencement of these proceedings. However,
the record on appeal indicates that Petitioner is mistaken. At the hearing on her Motion to
Transfer Physical Custody, Petitioner testified that she moved to South Carolina in
February 2019. The abuse and neglect petition in this matter was filed on June 7, 2019.
Depending on the date that Petitioner moved to South Carolina—and assuming A.A.
resided with her from the beginning—A.A. lived in South Carolina for no more than four
months. Under the plain language of West Virginia Code § 48-20-201(a)(1), in order for
South Carolina to have home state jurisdiction, A.A. must have resided there for at least
six consecutive months. 12 She did not, and Petitioner’s argument on this point fails: South
Carolina is unequivocally not A.A.’s home state. 13 Thus, the appendix record fails to
support a conclusion that A.A. had a home state for purposes of jurisdiction under the
UCCJEA. Therefore, our analysis turns to the next jurisdictional basis.
12
South Carolina has adopted identical statutory language providing that a child
must reside in the state for six, consecutive months before the state may become the child’s
“home state.” S.C. Code Ann. § 63-15-330(a)(1) (2008).
13
Though Petitioner does not argue that Pennsylvania or New Jersey was A.A.’s
home state, the appendix record fails to support either state being the child’s home state.
19
b. “Significant Connection” Jurisdiction
West Virginia Code § 48-20-201(a)(2) provides that West Virginia may
exercise “significant connection” jurisdiction if
[a] court of another state does not have jurisdiction under [§
48-20-201(a)(1)], or a court of the home state of the child has
declined to exercise jurisdiction on the ground that [West
Virginia] is the more appropriate forum under section 20-207
[§ 48-20-207] or 20-208 [§ 48-20-208], and:
(A) The child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence;
and
(B) Substantial evidence is available in this state concerning
the child’s care, protection, training and personal relationships.
Id.
This is a two-prong analysis. First, a court must determine that no other state
can exercise “home state” jurisdiction under § 48-20-201(a)(1) or that a state having such
jurisdiction has declined to exercise it. Second, under subparts (A) and (B) a court must
examine whether the child and at least one parent have a connection to West Virginia other
than physical presence, and whether substantial evidence is available in West Virginia
regarding the child’s care, protection, training and personal relationships. Having already
determined that no state has home state jurisdiction under section 48-20-201(a)(1), we turn
to the second part of the analysis.
As we recognized in Z.H.,
20
“[t]he drafters of the model UCCJEA recognized that
‘[t]he jurisdictional determination [of significant connection
jurisdiction] should be made by determining whether there is
sufficient evidence in the State for the court to make an
informed custody determination. That evidence might relate
to the past as well as to the present or future.’ UNIF. CHILD
CUSTODY JURISDICTION AND ENFORCEMENT ACT,
Cmt. 2 to § 201 (Nat’l Conf. of Comm’rs of Unif. State Laws
1997) (internal quotation marks omitted).”
245 W. Va. at 470, 859 S.E.2d at 413.
There is ample evidence to establish that A.A. and at least one (if not both)
of her parents have a significant connection to the State of West Virginia. Specifically, the
record indicates that A.A. has lived sporadically in this state on several occasions,
including shortly after her birth prior to an earlier abuse and neglect proceeding in Wetzel
County in early 2018, and for a period of time in which she resided with the Respondent
Foster Parents in the summer of 2018 before these proceedings began. A.A.’s biological
mother, D.A., consistently resided in the state, and—though the record is largely
undeveloped on this point aside from the 2018 abuse and neglect petition—had A. A. with
her for some unknown amount of time until approximately one month prior to the filing of
that petition. Moreover, on more than one occasion A.A. was brought to West Virginia for
apparently extended periods while M.A. engaged in illicit behaviors. It was during one of
those periods that A.A. first resided with the Respondent Foster Parents, when M.A. left
her in their care for two weeks.
21
Beyond this, the record contains evidence regarding A.A.’s care, protection,
training and personal relationships in West Virginia, while the record reveals little evidence
relating to those factors in any other state. Beginning with the instant proceeding, all of
the evidence regarding A.A.’s travel to and removal from the hotel room in St. Marys is
available in West Virginia. In fact, all of the relevant information relating to this abuse
and neglect proceeding—from both parents’ alleged substance abuse to M.A.’s illegal
conduct and having left A.A. with a totally unrelated person in a hotel room—is only
available in West Virginia. Moreover, the same would likely have been true for the 2018
abuse and neglect matter in Wetzel County, as the evidence that would have supported that
petition was primarily, if not solely, available in West Virginia (e.g., the parents’ substance
abuse and D.A.’s inability to maintain appropriate housing and provide for the child at that
time). Each of these go directly to the question of A.A.’s care and protection. Even outside
of the abuse and neglect proceedings, there is additional evidence available in this State
regarding A.A.’s care and personal relationships, including evidence of A.A.’s time
residing with the Respondent Foster Parents in 2018. It is undeniable that the child had
established significant relationships in this State prior to the institution of these
proceedings; Petitioner herself recommended that the Respondent Foster Parents take
custody of the child the night she was removed from the hotel room.
The record is sparse with regard to A.A. and her parents’ connections to any
other state. To the extent that A.A. and M.A. have any significant connection to any other
state, the record reveals that it pales in comparison to the connections they have to the State
22
of West Virginia. Accordingly, we conclude that A.A. and both of her parents have a
significant connection to West Virginia, such that the courts of this state may properly
exercise jurisdiction over custody matters concerning A.A pursuant to W. Va. Code § 48-
20-201(a)(2).
Having determined that the circuit court properly exercised “significant
connection” jurisdiction over this matter, 14 we conclude that Petitioner’s first assignment
of error—that the circuit court lacked jurisdiction over these proceedings—is without
merit.
B. Failure to Name Petitioner as a Party
Petitioner next argues that the circuit court erred insofar as it failed to name
her as a party from the outset of these proceedings because she was, allegedly, A.A.’s
14
Having determined the circuit court properly exercised significant connection
jurisdiction over this matter, we need not address the remaining jurisdictional bases under
the UCCJEA. That said, upon review it is apparent that “declination” jurisdiction under
West Virginia Code § 48-20-201(a)(3) would not have been applicable here, as no other
state had either home state jurisdiction or significant connection jurisdiction to decline.
Further, given that no other state had proper jurisdiction under any of these three bases,
and assuming, arguendo, West Virginia did not have proper significant connection
jurisdiction pursuant to West Virginia Code § 48-20-201(a)(2), then West Virginia could
have properly exercised “default” jurisdiction under West Virginia Code § 48-20-
201(a)(4). That statute provides that the courts of this state may exercise jurisdiction if
“[n]o court of any other state would have jurisdiction under the criteria specified in
subdivision (1), (2), or (3)” of § 48-20-201(a).” Id. As explained, a thorough review of
the record before us on appeal indicates that no court in any other state would have had
jurisdiction under any of the aforementioned subdivisions.
23
custodian prior the initiation of this abuse and neglect action. Petitioner derives this from
West Virginia Code § 49-4-601(b) (Supp. 2021) which states, in relevant part, that
[e]ach petition shall name as a party each parent, guardian,
custodian, other person standing in loco parentis of or to the
child allegedly neglected or abused and state with specificity
whether each parent, guardian, custodian, or person standing
in loco parentis is alleged to have abused or neglected the child.
West Virginia Code § 49-1-204 defines “custodian” as “a person who has or shares actual
physical possession or care and custody of a child, regardless of whether that person has
been granted custody of the child by any contract or agreement.” Petitioner contends that
she was A.A.’s custodian because the child lived in her home and she provided care for the
child. The DHHR counters that Petitioner is not a “custodian” but a “caregiver,” which
West Virginia Code § 49-1-204 defines as:
[A]ny person who is at least eighteen years of age and:
(A) Is related by blood, marriage or adoption to the minor, but
who is not the legal custodian or guardian of the minor; or
(B) Has resided with the minor continuously during the
immediately preceding period of six months or more.
(Emphasis added).
From the evidence presented below, Petitioner provided precious little
evidence to the circuit court regarding A.A.’s time living with her or the care she provided
A.A.. In fact, the bulk of the testimony below indicates that A.A. sporadically lived with
Petitioner and did so only when A.A.’s father lived with Petitioner. There is even testimony
that A.A.’s father would leave with A.A. at times, as he did in the summer of 2018 when
24
A.A. resided for the first time with Respondent Foster Parents, and as he did three days
prior to the institution of these proceedings when he brought the child to West Virginia.
Moreover, the only evidence Petitioner proffered regarding her provision of care to A.A.
is a somewhat vague reference to having attempted find her a school for children with
special needs. Ultimately, while Petitioner may have provided some care to A.A., the
appendix record fails to support that she “shared actual physical possession or care and
custody” of A.A. as contemplated by the definition of “custodian” in West Virginia Code
§ 49-1-204. Accordingly, we agree with the DHHR that Petitioner more readily meets the
definition of “caregiver” as she was over the age of eighteen, related to the child by blood,
and was not the child’s legal custodian. To that end, West Virginia Code § 49-4-601(b)
does not require “caregivers” to be named as parties to abuse and neglect proceedings.
Therefore, the circuit court did not err in failing to name her as a party to these proceedings.
C. Introduction of Undisclosed Testimony
Petitioner next argues that the circuit court erred in admitting and relying on
the undisclosed testimony of a witness. The witness in question is K.S., 15 an acquaintance
of M.A, who testified that she once observed Petitioner providing M.A. with
methamphetamine. Petitioner asserts that this testimony was designed to ambush her at
the hearing and that the content of said testimony was not properly disclosed under Rule
30 of the Rules of Procedure of Child Abuse and Neglect Proceedings, which provides:
15
K.S. is also the adult biological daughter of the Respondent Foster Parents.
25
At least five (5) judicial days prior to the disposition hearing,
each party shall provide the other parties, persons entitled to
notice and the right to be heard, and the court a list of possible
witnesses, with a brief summary of the testimony to be
presented at the disposition hearing, and a list of issues of law
and fact. Parties shall have a continuing obligation to update
information until the time of the disposition hearing.
(Emphasis added.) By its terms, this rule explicitly attaches only to dispositional hearings,
which are defined in Rule 3(i) as “the hearing contemplated by W. Va. Code § 49-4-604that is held after a child has been adjudged to be abused and/or neglected, at which the
court reviews the child and family case plan filed by the Department and determines the
appropriate disposition of the case and permanency plan for the family[.]” W. Va. R. P.
Child Abuse & Neglect Proc. 3(i). The hearing on Petitioner’s motion to transfer custody
is not a dispositional hearing, but more akin to a “permanency hearing.” Id. at 3(h) (defined
as “the hearing contemplated by W. Va. Code § 49-4-608 to determine the permanency
plan for the child.”); see also W. Va. Code 49-4-608 (permanency hearing is to determine
the appropriate permanent placement and plan for the child); W. Va. R. P. Child Abuse &
Neglect Proc. 36a (same). As such, Rule 30 does not apply.
When counsel for Petitioner objected to the introduction of K.S.’s testimony
at the underlying hearing, the circuit court stated that it directed that witness disclosures
“be made pursuant to the [R]ules. In reviewing the rules, Rule
10 of the West Virginia Rules of Procedure for Child Abuse
and Neglect [provides] the disclosure with regard to witnesses
is limited to a written list of names and addresses of the
witnesses the respondent intends to call in the presentation of
the case in chief.”
26
The circuit court found that there was no error in failing to disclose the intended content of
K.S.’s testimony. We agree.
Rule 10 of the Rules of Procedure for Child Abuse and Neglect Proceedings
sets out the general discovery rules for abuse and neglect proceedings. Moreover, it
provides that “[t]he disclosure provided for in this rule is not intended to limit the amount
or nature of disclosure in these cases. This rule merely establishes the minimum amount of
disclosure required.” Id. at 10(d). To the extent that this was not a “disposition hearing”
as contemplated by Rule 30 and subject to its additional discovery requirements, the
general discovery requirements of Rule 10 applied. Rule 10 requires only that one disclose
“[a] written list of names and addresses of all witnesses whom the attorney for the petitioner
intends to call in the presentation of the case-in-chief, together with any record of prior
convictions of any such witnesses.” Id. at 10(b)(5). It also requires the respondent to
disclose “[a] written list of names and addresses of the witnesses the respondent intends to
call in the presentation of the case-in-chief.” Id. at 10(c)(3). There is no requirement under
Rule 10 to disclose a brief summary of the intended testimony of the witness.
It is undisputed that the DHHR disclosed the name and address of K.S. prior
to the hearing on Petitioner’s motion. Under Rule 10, the DHHR was not required to
disclose a brief summary of K.S.’s intended testimony. As such, the circuit court did not
err in admitting K.S.’s testimony or in relying upon it—to the extent it may have done so—
in ruling upon Petitioner’s motion.
27
D. Placement of the Child
The remainder of Petitioner’s assignments of error challenge the circuit
court’s findings with regard to its ultimate decision not to transfer custody of A.A. to
Petitioner, and are predicated upon an alleged misapplication of the so-called “grandparent
preference” enumerated in West Virginia Code § 49-4-114(a)(3). We will address these
alleged errors collectively.
West Virginia Code § 49-4-114(a)(3) provides:
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.
We have explained that this section “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 viewed in its entirety establishes that
such placement is not in the best interests of the child.” Syl. Pt. 4, in part, Napoleon S. v.
Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). Further, we have emphasized that “[t]he
grandparent preference must be considered in conjunction with [this Court’s] long standing
jurisprudence that ‘the primary goal in cases involving abuse and neglect . . . must be the
28
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)).
Petitioner first asserts two intertwined arguments: (1) the court erred in
failing to order an immediate home study of her place of residence despite being a suitable
grandparent available for placement of the child; and (2) the court erred in concluding that
Petitioner was at fault for the delay in the seeking custody of A.A.
As a preliminary matter, we reiterate that section 49-4-114(a)(3) requires
circuit courts to make a threshold determination as to “suitability and willingness of any
known grandparent” to take custody of A.A. (Emphasis added). Petitioner initially
declined placement of A.A. at the time of removal. Testimony presented below from
Petitioner and Respondent Foster Mother confirm that Petitioner was notified of the
removal as it was in progress and explicitly declined to take custody of A.A. believing she
would not pass a home study because her other son, a felon on parole, was residing in her
home at the time. Moreover, the record indicates that Petitioner asked the Respondent
Foster Parents to take custody of A.A. at that time. These facts clearly demonstrate that
Petitioner was not a willing placement for A.A. at the beginning of these proceedings.
Further, Petitioner did not later indicate to the circuit court that she was a willing placement
until she moved to intervene in April 2020, some ten months after the proceedings began.
As such, under the plain language of the statute, the circuit court was under no obligation
29
to order a home study of Petitioner’s place of residence because she was not a willing
placement for the child.
Later, after Petitioner intervened, she requested the circuit court to order a
home study of her new residence in Moundsville. The court did so immediately upon
granting her motion to intervene, and the home study was completed approximately one
month later. Still, Petitioner contends that this delay was unreasonable and that the circuit
court erroneously determined she was at fault for the delay. In making this argument,
Petitioner likens this case to In re J.P., 243 W. Va. 394, 844 S.E.2d 165 (2020), wherein
this Court reversed and remanded a circuit court’s order placing a child with foster parents
rather than a suitable grandparent. However, J.P. is distinguishable from the case at bar
because, in that case, we noted that the delay in performing a home study on the
grandparent’s home was attributable to the DHHR. Id. at 402, 844 S.E.2d at 173. There,
the grandparents intervened at the very beginning of the case to assert their right to custody,
but the home study wasn’t completed for over a year. Id. The DHHR relied on that delay
to place the child with the foster parents, but we reversed upon finding that the DHHR was
at fault for the delay in completing the home study. Id. at 404, 844 S.E.2d at 175.
This case is the inverse of J.P.. Petitioner did not intervene in the
proceedings to assert her right to custody at the outset. In fact, she explicitly declined to
take custody, and then held off intervening for ten months to “wait and see” if A.A.’s
father’s parental rights were going to be terminated. Further, when she did ultimately
30
intervene, the home study was completed in a timely manner. Simply put, neither the
DHHR nor the circuit court are at fault for the “delay” in completing this home study; the
blame falls squarely on the shoulders of Petitioner and she is therefore entitled to no relief
in this regard. 16
Petitioner next asserts that the circuit court erred in finding that transferring
custody of A.A. to Petitioner was not in the child’s best interest because such a transfer
would place undue stress on A.A., and because it had reason to believe Petitioner would
permit A.A.’s father—whose rights have been terminated—to have access to the child.
Upon review, we readily determine that the circuit court did not err in making either of
these findings.
With regard to the undue stress A.A. would suffer upon a custodial transfer,
the circuit court made multiple relevant findings. Specifically, it found that A.A. suffers
from an extreme form of autism which renders her largely nonverbal and that when she
was in Petitioner’s care her autistic behaviors worsened due to a lack of therapeutic
intervention. The court also found that placement in Petitioner’s home would expose A.A.
to individuals with felony convictions, criminal propensities, and related behaviors; this
16
To the extent Petitioner also argues that the home study was insufficient because
it did not include an “analysis by the [DHHR] and circuit courts of the best interests of the
child, given all circumstances of the case” per our holding in syllabus point three of J.P.,
we find no error. See 242 W. Va. at 294, 844 S.E.2d at 165. The circuit court performed a
thorough best interests analysis in this case and considered the home study in so doing.
31
finding stems from Petitioner’s repeated interactions with her children who are all
convicted felons, including her prioritization of her parolee son’s residence in her home at
the outset of these proceedings. Perhaps most importantly, the court found that Petitioner,
upon moving to West Virginia, moved to a community remote from A.A.’s current place
of residence which would require the child to transition to a new home, new school, and
new community. This is particularly relevant because A.A.’s severe autistic behaviors
have substantially lessened with the routine afforded by her placement with the Respondent
Foster Parents where she is enrolled in a specialized education program. 17 Having
reviewed the record in its entirety, the circuit court did not err in its determination that
transitioning A.A. to Petitioner’s home was not in the child’s best interest.
We turn finally to the circuit court’s finding that Petitioner would likely
facilitate contact between A.A. and her biological father. Petitioner contends that this
finding is erroneous insofar as it is speculative. Petitioner apparently takes issue with the
concerns raised by the guardian ad litem below that Petitioner was attempting an “end run”
around the proceedings in that she would seek custody of the child just to turn her over to
M.A. whose rights were terminated. In expressing these concerns, the guardian relied upon
17
The circuit court, citing In Interest of Carlita B., 185 W. Va. 613, 623, 408 S.E.2d
365, 375 (1991), noted that this Court has previously emphasized the importance of
“continuity of relationships, surroundings, and environmental influence” during a child’s
first three years of life. The circuit court reasoned that, although A.A. is chronologically
more than three years old, due to her severe autism, “developmentally she is more likened
to a toddler” such that the court was compelled to consider the bond and attachment she
had with Respondent Foster Parents.
32
his previous interactions with Petitioner during the 2018 abuse and neglect matter in Wetzel
County, specifically highlighting that at the close of those proceedings Petitioner
transported A.A. to New Jersey to be with M.A. We take care to note that it does not
appear Petitioner’s conduct at that time was inappropriate, as M.A.’s parental rights had
not been terminated. In fact, the Wetzel County matter was dismissed before reaching the
adjudicatory phase, therefore there was nothing objectively improper about Petitioner’s
taking the child to M.A.
That said, the circuit court had additional evidence before it upon which to
make the present determination that, if given custody of A.A, Petitioner was likely to
facilitate contact between the child and M.A. Of note, the circuit court found it troubling
that Petitioner specifically waited until it was apparent M.A.’s parental rights would be
terminated before attempting to seek custody of A.A. Moreover, the court noted that
Petitioner pointedly relocated to Moundsville, West Virginia, fifteen to thirty minutes from
her son’s residence in Triadelphia, West Virginia, rather than to a location closer to A.A in
Pleasants County.
Both of these considerations were appropriate given several similar holdings
from this Court. See In re K.E., 240 W. Va. 220, 809 S.E.2d 531 (2018) (reversing a circuit
court order which placed children with their grandparents when the grandparents lived two
doors down from the parents whose rights had been terminated, and where there was
evidence the parents had unfettered access to the children); In re Elizabeth F., 225 W. Va.
33780, 696 S.E.2d 296 (2010) (reversing an order placing a child with her grandparents where
the grandmother refused to shield the child from the “negative influences” of her adult
children); In re T.R., 2016 WL 3165801, No. 15-1235 (2016) (memorandum decision)
(affirming a circuit court order which refused to place the children with their grandparents
who lived in the same “family compound” as the mother whose rights had been
terminated); In re K.C., 2019 WL 480160, No. 18-0242 (2019) (memorandum decision)
(declining to disturb a child’s placement with foster parents where the maternal
grandparents undertook multiple efforts to “manipulate matters in favor of their daughter”
including failing to complete a home study in an effort to delay the proceedings and initially
refusing to take custody of a child born during the proceedings and where there was a
“strong possibility that the mother would be allowed by the grandparents to move back into
the home to help care for [the child][.]”).
In short, in determining whether placement of a child with his or her
grandparents is appropriate, this Court has long permitted lower courts to examine whether
those grandparents may facilitate contact between the child and a parent whose rights have
been terminated. Here, the circuit court had ample reason to believe Petitioner may permit
M.A. to have access to A.A., not the least of which was her decision to move substantially
closer to him than to A.A. during the proceedings. Beyond this, it is clear that, even
assuming Petitioner did not permit M.A. to have contact with A.A., the child would still be
subject to the “negative influences” of Petitioner’s other adult children, having already
demonstrated her willingness to prioritize them over A.A. by declining to take custody of
34
A.A. in favor of her parolee son to reside in her home. To be clear, we are not stating that
grandparents must necessarily choose between their adult children and their infant
grandchildren, but we stress that the ultimate question for a circuit court in abuse and
neglect matters is what is in the best interest of the child. To the extent the circuit court
considered evidence that Petitioner would facilitate contact between A.A. and her
biological father, or that the child would be exposed to continuing negative influences in
Petitioner’s home, it was justified in determining that it would not be in A.A.’s best interest
to place the child with Petitioner.
Therefore, we find no error in the circuit court’s findings related to the
application of the grandparent preference embodied in West Virginia Code § 49-4-
114(a)(3), the delay in the home study on Petitioner’s residence, or the findings regarding
A.A.’s best interests.
IV. CONCLUSION
For the foregoing reasons, we affirm the Circuit Court of Pleasants County’s
December 3, 2020, Order denying Petitioner’s Motion to Transfer Physical Custody.
Affirmed.
35