                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re K.P.
                                                                                       FILED
                                                                                    June 25, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
No. 20-0096 (Fayette County 19-JA-4)                                              SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA




                               MEMORANDUM DECISION


         Petitioners Grandfather R.P.-1 and Grandmother R.P.-2, by counsel Sherman L. Lambert
Sr., appeal the Circuit Court of Fayette County’s January 16, 2020, order denying their motion for
visitation with the child. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The
guardian ad litem, Vickie L. Hylton, filed a response on behalf of the child in support of the circuit
court’s order. On appeal, petitioners argue that the circuit court erred in denying their motion for
visitation with the child.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        In January of 2019, the DHHR filed an abuse and neglect petition against the parents
alleging that the mother tested positive for Subutex and Oxycontin and that K.P. was born drug-
exposed. The DHHR alleged the child was born with withdrawal symptoms and required further
hospitalization. The father was incarcerated at the time of K.P.’s birth, having been charged with
conspiracy to distribute methamphetamine. Upon removal, the DHHR obtained legal custody of
the child, with physical custody given to a paternal aunt who resided in petitioners’ home. The
parents were adjudicated as abusing parents, after which the mother’s parental rights were

       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). Additionally, because both of the petitioners share the same
initials, we will refer to them as R.P.-1 and R.P.-2, respectively, throughout the memorandum
decision.



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involuntarily terminated in May of 2019. The father voluntarily relinquished his parental rights in
July of 2019.

        The paternal aunt and the child continued to reside in petitioners’ home until August of
2019, when the DHHR removed the child after the aunt was charged with two counts of delivery
of a controlled substance. After K.P.’s removal from the aunt’s custody, petitioners filed a motion
to intervene in the proceedings, asserting that they should be considered for placement in lieu of
foster care or adoption by a non-relative. In September of 2019, the circuit court granted
petitioners’ motion to intervene in the proceedings. Later that month, the circuit court held a
hearing wherein the multidisciplinary team presented a status report stating that the paternal aunt
was no longer an appropriate placement for the child due to her pending drug charges. The report
also included full criminal background checks, which revealed that petitioner R.P.-2 had pleaded
guilty in 2015 to a felony drug offense. Further, the report revealed that the felony drug offense
involved a drug conspiracy which included the child’s father and his paternal aunt. Shortly
thereafter, petitioners filed a motion for supervised visitation with the child.

         In December of 2019, the circuit court held a permanency hearing wherein the court
clarified that it would rule on petitioners’ motion for visitation as well as permanent placement. At
the hearing, a DHHR caseworker testified that a home study had been performed shortly after the
child’s birth and petitioners’ home was considered as an appropriate placement at the initial
assessment, provided that the aunt was the caregiver. However, petitioners themselves were not
considered for placement of the child after discovery of R.P.-2’s previous drug conviction. The
caseworker further testified that the only reason the child was ever in petitioners’ residence was
because the aunt had physical custody of the child, was living at the residence, and had been
considered for placement prior to her recent drug charges. The guardian also testified that
petitioners were not a suitable placement for the child, sharing the DHHR’s concern about R.P.-
2’s prior drug conviction. Finally, a licensed psychologist testified that the child was suffering
from extreme separation anxiety, having been removed from her biological home at a critical age.
The psychologist noted that the child was still in the process of learning critical skills and her
report added that “it would be detrimental . . . to interfere with her schedule and routine in any
way.” As a result, the psychologist testified that she did not recommend that petitioners have
visitation with the child if they were not being considered for placement.

        After hearing the evidence, the circuit court found that petitioners did not seek placement
of the child until after she was removed from the aunt’s custody and, even after moving to
intervene, petitioners continued to argue in favor of the aunt regaining custody and placement,
despite her pending drug charges. Further, the circuit court found that any presumption in favor of
placement with petitioners had been rebutted based on R.P.-2’s prior felony conviction and their
“lack of sufficient judgment” to ensure the child’s safety. The circuit court then found that it was
not in the child’s best interests to be permanently placed with petitioners. After finding petitioners
were not suitable for permanent placement, the court found it was not in the child’s best interests
to grant visitation either, citing the psychologist’s testimony and concerns about separation anxiety
and interference with the child’s routine. Accordingly, the circuit court denied petitioners’ motion




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for visitation, found they were not an appropriate placement for the child, and dismissed them from
the case. It is from the January 16, 2020, order that petitioners appeal. 2

        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).

        In their sole assignment of error, petitioners argue that the circuit court erred in denying
R.P.-1’s 3 motion for visitation because there was no evidence adduced at the permanency hearing
to prove that he was unsuitable or inappropriate for supervised visitations with the child.
Essentially, petitioners argue that all of the circuit court’s findings of fact and conclusions of law
related to the criminal conduct of R.P.-2 and the child’s aunt and the failure of the circuit court to
make specific findings regarding R.P.-1 was error. In support, petitioners contend that visitation
with R.P.-1 is in the child’s best interests and would not interfere with the child’s relationship with
her foster parents. We disagree.

        West Virginia Code § 48-10-501 provides that “[t]he circuit court or family court shall
grant reasonable visitation to a grandparent upon a finding that visitation would be in the best
interests of the child and would not substantially interfere with the parent-child relationship.”
Further, this Court has held that

               “[a] trial court, in considering a petition of a grandparent for visitation rights
        with a grandchild or grandchildren . . . shall give paramount consideration to the




        2
        The parents’ parental rights were terminated below. The permanency plan for the child is
adoption in her current foster home.
        3
         Despite the fact that petitioners filed a joint motion for visitation in the circuit court below
and a joint appeal to this Court, petitioners assign as error only the denial of visitation with R.P.-
1.


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       best interests of the grandchild or grandchildren involved.” Syllabus point 1, in part,
       In re the Petition of Nearhoof, 178 W.Va. 359, 359 S.E.2d 587 (1987).

Syl. Pt. 3, In re Samantha S., 222 W. Va. 517, 667 S.E.2d 573 (2008).

         Here, the circuit court found that it would not be in the child’s best interests to participate
in visitation with petitioners because the child’s therapist testified that the child was experiencing
extreme separation anxiety, learning critical skills, and would be harmed by deviating from her
schedule and routine. Additionally, the therapist testified that she did not recommend petitioners
have visitation with the child if they were not being considered for placement. The circuit court
also considered that R.P.-1 was unlikely to prevent the paternal aunt from visiting with the child,
despite her own pending drug charges. In its order, the circuit court weighed the child’s best
interests according to West Virginia Code § 48-10-502, which provides factors to be considered
by the circuit court in its decision whether to grant a grandparent visitation. These factors include
as follows:

       (1) The age of the child;
       (2) The relationship between the child and the grandparent;
       (3) The relationship between each of the child’s parents or the person with whom
       the child is residing and the grandparent;
       (4) The time which has elapsed since the child last had contact with the grandparent;
       (5) The effect that such visitation will have on the relationship between the child
       and the child’s parents or the person with whom the child is residing;
       (6) If the parents are divorced or separated, the custody and visitation arrangement
       which exists between the parents with regard to the child;
       (7) The time available to the child and his or her parents, giving consideration to
       such matters as each parent’s employment schedule, the child’s schedule for home,
       school and community activities, and the child’s and parents’ holiday and vacation
       schedule;
       (8) The good faith of the grandparent in filing the motion or petition;
       (9) Any history of physical, emotional or sexual abuse or neglect being performed,
       procured, assisted or condoned by the grandparent;
       (10) Whether the child has, in the past, resided with the grandparent for a significant
       period or periods of time, with or without the child’s parent or parents;
       (11) Whether the grandparent has, in the past, been a significant caretaker for the
       child, regardless of whether the child resided inside or outside of the grandparent’s
       residence;
       (12) The preference of the parents with regard to the requested visitation; and
       (13) Any other factor relevant to the best interests of the child.

Contrary to petitioners’ assertion, the circuit court considered these relevant factors as it pertains
to both R.P.-1 and R.P.-2, and ultimately based its decision to deny visitation according to the
child’s best interests. At the time of the placement hearing, K.P. was just twelve months old and
R.P.-1 provided no evidence to support any existing relationship between him and the child.
Additionally, the child’s father was incarcerated at her birth and the mother failed to participate in
services to help her correct the conditions of abuse and neglect. As a result, the mother’s parental

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rights were terminated and the father voluntarily relinquished his parental rights. Further, K.P. has
been placed with a foster family who desires to adopt her, and the child has been diagnosed with
separation anxiety. As such, any visitation that would be granted to petitioners could exacerbate
the child’s condition, especially if visitation ceased. R.P.-1 also provided no evidence for his claim
that he interacted with the child on a “daily basis” or otherwise “provided extensive childcare.”
Finally, neither of K.P.’s foster parents have expressed a preference for petitioners to be granted
visitation.

        Additionally, while R.P.-1 maintains that the circuit court failed to make specific findings
or conclusions of law against him, the circuit court made several findings in its order which apply
to both petitioners. The circuit court found that neither petitioner sought placement of the child
until after she was removed from the aunt’s custody. The circuit court noted that both petitioners
continued to argue in favor of the aunt regaining custody of the child despite her pending drug
charges. The DHHR and guardian objected to placing K.P. with petitioners. Although R.P.-1 is
correct that the circuit court made additional factual findings against R.P.-2, this is, in part, because
petitioner R.P.-1 chose not to testify, despite being present at the hearing. As such, petitioners are
incorrect that the circuit court failed to make factual findings against both of them. Therefore, we
find no error in the circuit court’s decision to deny petitioners’ motion for visitation.

        Finally, 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. 118, 744 S.E.2d 228 (2013). Because the permanency plan
for the children is adoption by a nonrelative, the circuit court did not err in declining to award
visitation to petitioner. 4

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 16, 2020, dispositional order is hereby affirmed.


                                                                                              Affirmed.


        4
         At the conclusion of their brief, petitioners assert that “[t]he notion that [R.P.-1] could or
would not provide the appropriate care for K.P., as well as [the paternal aunt] or [R.P.-2], under
supervision, would be violative of the Equal Protection Clause of the Fourteenth Amendment.”
However, as noted above, the entirety of petitioners’ argument on appeal concerns the denial of
visitation to R.P.-1 only. Accordingly, any allegation regarding the denial of supervised visitation
to anyone other than R.P.-1 will not be addressed on appeal, given petitioners’ failure to advance
any argument in support for this issue. Additionally, given the analysis above concerning the
circuit court’s compliance with West Virginia Code § 48-10-502, we find that R.P.-1 cannot
establish any violation of his right to equal protection.
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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




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