                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re L.N. and I.N. Jr.
                                                                                       FILED
                                                                                    June 25, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
No. 19-1112 (Randolph County 18-JA-110 and 18-JA-111)                             SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA



                               MEMORANDUM DECISION



        Petitioner R.N., the children’s paternal grandfather, by counsel David C. Fuellhart, appeals
the Circuit Court of Randolph County’s October 30, 2019, order granting permanent placement of
L.N. and I.N. Jr. with the foster parents. 1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s
order. The guardian ad litem (“guardian”), Heather M. Weese, filed a response on behalf of the
children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in denying him placement of the children, failing to require the DHHR to conduct a
home study of his residence, and denying him visitation with 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 an abuse and neglect petition against the parents
after receiving a referral that the children’s father was selling controlled substances out of
petitioner’s home, where the children were also residing. The petition alleged that I.N. Jr. saw his
father sell drugs out of the home and said that petitioner was aware the father did “bad things at
night to get money for the family.” Further, the petition alleged the DHHR found
methamphetamine underneath a futon on which the children were sitting. The petition also alleged
that petitioner provided care for the children and that they were exposed to abusive and neglectful
situations in his home. Despite the father’s conduct in the home, petitioner denied knowledge of
the father’s drug activities. The children remained with petitioner for two weeks after the petition
was filed, until the DHHR discovered that petitioner’s parental rights to his three children—

       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
including L.N. and I.N. Jr.’s father—had been terminated twenty years earlier. As a result of this
discovery, the children were taken out of petitioner’s home and placed into foster care. The parents
were adjudicated as abusing parents in October of 2018 and were granted post-adjudicatory
improvement periods.

        In October of 2018, petitioner began requesting visitation with the children, to which the
DHHR and guardian objected, due to petitioner’s prior termination of parental rights. Despite the
concerns, the circuit court granted petitioner two supervised visits with the children around the
Thanksgiving and Christmas holidays. In light of the visits, petitioner was drug screened and tested
positive for marijuana. Additionally, the guardian alleged that petitioner had inappropriate
conversations with the children about the case during the visits, including promises that the
children would live with him.

         Final dispositional hearings were held in April and August of 2019, wherein the circuit
court terminated the father’s and mother’s parental rights, respectively. After the termination of
the father’s parental rights, petitioner asked for placement of the children, or in the alternative,
visitation. The DHHR and guardian continued to object to petitioner’s request due to the prior
termination of his parental rights. The circuit court appointed petitioner an attorney in June of
2019.

         The circuit court held a permanency hearing for the children in September of 2019 wherein
petitioner requested placement, or in the alternative, visitation with the children. The DHHR
recommended that placement of the children remain with the foster parents due to the strong bond
the children had with them, the fact that the children had been in their care for several months,
petitioner’s prior termination of parental rights, and petitioner’s continued substance abuse. A
DHHR caseworker testified that petitioner had stipulated to abusing and neglecting his own
children in 1999, due to substance abuse that affected his ability to parent. The caseworker further
testified that petitioner’s stipulation eventually led to the termination of his parental rights to his
three children and that DHHR policy prohibited the placement of the children with petitioner. The
DHHR also presented evidence that the children’s parents continued to visit petitioner’s home
after their rights to the children had been terminated. Finally, a CPS worker testified that it had
substantiated an allegation that petitioner prostituted his then fourteen-year-old daughter to a drug
dealer to satisfy his drug debt in 1999. Petitioner denied the allegations and testified that he was
never criminally charged. Petitioner’s daughter testified and denied the allegations, for the first
time ever, at the hearing. Additionally, petitioner admitted that he had been using marijuana for
the last forty-one years, including when visiting the children in December of 2018, and that he
continued to use marijuana until the last month before the hearing. Nevertheless, petitioner testified
that he promised to stop using if it meant that he would receive placement of the children. In
addition to marijuana, the DHHR presented evidence that petitioner tested positive for Subutex in
July of 2019. Petitioner denied using Subutex or having any knowledge of the controlled
substance.

       Based upon the evidence, the circuit court found that it was in the best interests of the
children to remain in their placement with the foster parents. The circuit court found that drug use
was the basis for petitioner’s previous termination of parental rights and that petitioner continued
his drug addiction “for the next [twenty] years thereafter.” The circuit court also found that the


                                                  2
DHHR’s policy prohibited placement of any child in petitioner’s care and that the policy was
“well-founded and consistent with the best interest of the children.” In short, the circuit court found
that petitioner’s home was “not appropriate for placement of the children.” Additionally, the circuit
court found that the children’s pre-adoptive family was best suited to make decisions as to future
visitation and left any decision of visitation at their sole discretion. As such, the circuit court
granted permanent placement of the children to the foster parents and left visitation in their
discretion. It is from the October 30, 2019, order that petitioner appeals.

       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, petitioner argues that the circuit court erred by denying him placement of the
children and by failing to require the DHHR to conduct a home study of his residence. According
to petitioner, the record is insufficient to overcome the statutory presumption that placement of the
children with him was in the children’s best interests. Petitioner argues that the children lived with
him for two years, he visited the children “every day of their lives,” and the children were only
removed “because of old allegations against the [p]etitioner—the same allegations that were
denied by the alleged victim at the hearing.” Additionally, petitioner argues the circuit court should
have required the DHHR to conduct a home study of his residence when he requested placement
of the children. We disagree.

       West Virginia Code § 49-4-114(a)(3) states that

       [f]or 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.


                                                  3
However, we have also noted that “[t]he preference is just that—a preference. It is not absolute.”
In re K.E., 240 W. Va. 220, 225, 809 S.E.2d 531, 536 (2018). In fact, “[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 health and welfare of the children.’” In
re Hunter H., 227 W. Va. 699, 703, 715 S.E.2d 397, 401 (2011) (citation omitted). Accordingly,

       [b]y specifying in West Virginia Code § [ 49-4-114(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 [DHHR] and circuit
       courts of the best interests of the child, given all circumstances of the case.

In re K.E., 240 W. Va. at 220, 809 S.E.2d at 533, syl. pt. 3 (citation omitted).

        Contrary to petitioner’s assertion, the circuit court did not err in finding that the DHHR
overcame the statutory presumption of placing the children with him. Notably, petitioner contends
that the only reason the children were removed from his home was because he was “accused of
allowing his minor daughter to have sex with a man in exchange for controlled substances,” an
accusation that he denies. Petitioner’s contention that this was the sole reason that he was denied
placement of the children both minimizes the severity of the substantiated abuse and neglect of
other children and ignores several other findings that the circuit court articulated in its order. In
the order, the circuit court found that petitioner was “adjudicated twenty years ago upon his
admission to drug use affecting his ability to parent,” his “parental rights were terminated,” and
his “drug addiction continued for the next [twenty] years thereafter.” Petitioner does not dispute
any of these findings. In fact, petitioner readily admitted at the hearing that he had used marijuana
for the last forty-one years, tested positive when he visited the children, and only stopped using a
month prior to the permanency hearing. Additionally, the circuit court found that petitioner had a
“prior substantiation, adjudication, and termination of parental rights” and that the DHHR has a
policy which “prohibit[ed] placement of any child in [petitioner]’s care.” The circuit court found
that policy to be “well-founded and consistent with the best interest of the children.” Further, the
circuit court found that two of petitioner’s children were in and out of his home, despite the fact
that both had their own parental rights terminated. As such, the circuit court had ample evidence
to support its findings and conclusion that petitioner’s home was “not appropriate for placement
of the children.”

       Next, petitioner argues the circuit court erred in not ordering the DHHR to perform a home
study of his residence. On this issue, we have previously held that

               [w]hile the grandparent preference statute . . . 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.



                                                  4
Syl. Pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015). Here, the DHHR found that
petitioner was an unsuitable placement for the children due to his prior termination of parental
rights and continued substance abuse. Therefore, the DHHR was not required to conduct a home
study as placement of the children with petitioner was not in the children’s best interests.

         Although petitioner was initially given temporary placement for the children, the evidence
as a whole indicated that the best interests of the children necessitated permanent placement with
the foster parents. We have previously held that “[t]he [grandparent preference] statute
contemplates that placement with grandparents is presumptively in the best interests of the child,
and the preference for grandparent placement may be overcome only where the record reviewed
in its entirety establishes that such placement is not in the best interests of the child.” Napoleon S.,
217 W. Va. at 256, 617 S.E.2d at 803, syl. pt. 4, in part. After much consideration on the record,
the circuit court properly found that the evidence at the permanency hearing demonstrated that
placement with petitioner was not in the children’s best interest. Accordingly, we find that the
circuit court did not err in denying the same.

         Finally, petitioner argues that the circuit court erred by denying him visitation with the
children. According to petitioner, maintaining a relationship with him is in the children’s best
interests. We find petitioner’s argument to be without merit.

       We have previously held that

              [p]ursuant to W.Va. Code § 48-10-902 [2001], the Grandparent Visitation
       Act automatically vacates a grandparent visitation order after a child is adopted by
       a non-relative. The Grandparent Visitation Act contains no provision allowing a
       grandparent to file a post-adoption visitation petition when the child is adopted by
       a non-relative.

Syl. Pt. 3, In re Hunter H., 231 W. Va. at 118, 744 S.E.2d at 229. Because post-adoption visitation
between a grandparent and a child is not contemplated by the Grandparent Visitation Act, the
circuit court did not err in leaving visitation at the sole discretion of the children’s foster parents.
In light of the anticipated adoption by a non-relative, we find that he is entitled to no relief in this
regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 30, 2019, order is hereby affirmed.

                                                                                             Affirmed.
ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

                                                   5
