                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS

                                                                                   FILED
                                                                                February 11, 2013
In Re: S.H., E.H., and C.H.                                                  RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

No. 12-1054 (Mineral County 12-JA-13, 14, and 15)                              OF WEST VIRGINIA





                                  MEMORANDUM DECISION

   Petitioner Aunt’s appeal, by counsel Agnieszka Collins, arises from the Circuit Court of
Mineral County, wherein she was dismissed as intervenor by order entered on July 25, 2012. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel William L.
Bands, has filed its response. The guardian ad litem, Kelley A. Kuhn, has filed a response on
behalf of the children.

        This Court has considered the parties’ briefs and the appendix 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        The parental rights of the biological father of S.H., E.H., and C.H. were relinquished
voluntarily. The biological father is the brother of both Petitioner Aunt and the adoptive mother.
In August of 2008, the adoptive mother had a stroke and was unable to care for the children. On
March 17, 2012, the adoptive father, J.H., attempted to discipline C.H. in a way that caused
bruises. J.H. became distraught after the children ran from his home to Petitioner Aunt’s home a
few doors down, and reported that he attempted suicide. The police, emergency personnel, and
DHHR staff came to both homes and told Petitioner Aunt to care for the children that night.
However, Petitioner Aunt permitted the children to stay with J.H. that night, despite directions
from the DHHR that J.H. had, that same day, beaten C.H. and reportedly attempted suicide.

        The DHHR filed a petition for abuse and neglect against the adoptive parents. The
children were placed into foster care. On May 7, 2012, Petitioner Aunt petitioned the court below
to join the action as an intervenor and to be the temporary placement for the children. Petitioner
Aunt was permitted to intervene but was denied temporary placement upon the objections of the
guardian ad litem and a status hearing was held in which the DHHR reported that Petitioner Aunt
stated that she did not believe that the children’s biological father was dangerous, despite the fact
that he was ordered by the Circuit Court of Taylor County to have no contact with these children.
Petitioner Aunt also failed a home study ordered by the DHHR. Upon evaluating the DHHR
report, as well as having evaluated petitioner’s attitude and credibility in person, the circuit court
found that she was no longer a placement option and dismissed her from the case.


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        On appeal, petitioner argues she was entitled to a hearing by West Virginia Code section
49-6-2(c), which guarantees a hearing for “parties having custodial or other parental rights or
responsibilities to the child . . ., including the right to testify and to present and cross-examine
witnesses.” The guardian responds that West Virginia Code § 49-6-2(c) does not apply to
petitioner because she is not a party with custodial or other parental rights or responsibilities to
the children. The guardian states that the circuit court was not clearly wrong to based its decision
on testimony by petitioner that she does not believe that the children should be kept from the
children’s father. The guardian stated that the circuit court was “unimpressed” with petitioner’s
testimony regarding allegations that she failed to keep the children safe.

        Upon a review of the record, this Court finds no merit in petitioner’s argument. Petitioner
has presented no evidence that she has any custodial or parental rights or responsibilities. Thus,
petitioner is not entitled to a hearing pursuant to West Virginia Code § 49-6-2(c).

       For the foregoing reasons, we find no error in the decision of the circuit court, and the
dismissal of petitioner as intervener is hereby affirmed.


                                                                                         Affirmed.


ISSUED: February 11, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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