                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re D.D., G.N.-1, and G.N.-2
                                                                                   May 14, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0061 (Taylor County 17-JA-72, 73, and 74)                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Maternal Grandmother S.C., by counsel Kevin T. Tipton, appeals the Circuit
Court of Taylor County’s December 15, 2017, order denying her motion to intervene and
refusing to grant her placement of D.D., G.N.-1, and G.N.-2.1 The West Virginia Department of
Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in
support of the circuit court’s order and a supplemental appendix. The guardian ad litem
(“guardian”), Terri L. Tichenor, filed a response on behalf of the children in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying her motion to intervene and the opportunity to adopt her grandchildren.

        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.

        On June 30, 2017, the DHHR filed an abuse and neglect petition in Marion County
related to an incident in which the father of G.N.-1 and G.N.-2 was shot and killed in a vehicle
with the mother and children present. On June 25, 2017, Child Protective Services (“CPS”)
located the children at petitioner’s home. On June 26, 2017, the Marion County Child Advocacy
Center conducted a forensic interview with a child not at issue in this appeal who witnessed the
shooting. During the interview, the child disclosed that a third party shot the father in the back
while he was in the vehicle with the children. The child further indicated that the mother and the
shooter attempted to clean blood out of the vehicle, and that during that time, the mother was
speaking on the phone with petitioner. Lastly, the child disclosed that he and the other children
had blood spatter on their clothing from the shooting. According to the DHHR, following the
shooting death of the father, petitioner concealed the children and allowed the mother and the
                                                            
              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 two of the children have the same
initials, they will be referred to as G.N.-1 and G.N.-2, respectively.


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shooter into her home. The DHHR also reported concerns that petitioner would allow the mother
to see the children.

        According to the guardian, petitioner was the subject of a home study for possible
placement of the children and the home study was approved “with concerns.” The home study
reported concerns regarding the cleanliness of the home as well as potential sleeping
arrangements for the children. Additionally, the home study noted concerns regarding
petitioner’s health and the number of medications she took on a daily basis. Further, the home
study reported concerns surrounding petitioner’s ability to help the children cope with the trauma
of witnessing their father being shot and killed. According to the DHHR, petitioner reported that
the children “were fine” and also stated that she thought they were doing okay because “their
father was pretty mean to them anyway.” Lastly, the DHHR was concerned by petitioner’s lack
of a stable income. According to the guardian, the multidisciplinary team (“MDT”) team
determined placement with petitioner was not in the children’s best interests.

        In October of 2017, the matter was transferred to Taylor County. According to the
guardian, the children were placed together in a foster home. On November 9, 2017, the circuit
court held a preliminary hearing wherein the mother moved to voluntarily relinquish her parental
rights to the children, which the circuit court accepted. Thereafter, on November 20, 2017,
petitioner filed a motion to intervene and requested placement of the children, which was denied.
Her request for placement was referred back to the MDT, who again conferred and determined
that placement with petitioner was not in the children’s best interests. Petitioner appeals the
circuit court’s December 15, 2017, order denying her motion to intervene.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). Upon our review, this Court
finds no error in the proceedings below.

                                                            
              2
        The mother voluntarily relinquished her parental rights to the children. D.D.’s father’s
abuse and neglect proceedings are ongoing. According to the respondents, the children are
placed in a foster home with a permanency plan of adoption. 
                                                               2

 
        On appeal, petitioner argues that the circuit court erred in denying her motion to
intervene and in denying her the opportunity to adopt her grandchildren. Petitioner argues that
because she passed her home study, the children should be placed in her care pursuant to West
Virginia Code § 49-4-114(a)(3), which provides, in part, that the DHHR shall offer placement to
the grandparents “[i]f the department determines, based on the home study evaluation, that the
grandparents would be suitable adoptive parents.” We find petitioner’s argument unpersuasive.
Petitioner misinterprets the grandparent preference under West Virginia Code § 49-4-114(a)(3).
We have held “[t]he preference is just that-a preference. It is not absolute. As this Court has
emphasized, the child’s best interest remains paramount[.]” In re K.E., -- W.Va. --, 809 S.E.2d
531, 536 (2018). In discussing West Virginia Code § 49-4-114(a)(3), we have also held that
“[t]he 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. v. Walker, 217 W.Va. 254, 261, 617 S.E.2d 801, 808 (2005).

        Here, petitioner does not present any argument that placement with her is in the
children’s best interests. Petitioner argues that because she passed a home study, “she was by
law, determined to be a ‘suitable adoptive parent.’” However, although her home study was
approved, it was approved “with concerns.” Moreover, the approval of her home study did not
automatically deem petitioner a suitable adoptive parent. In addition to the approval of a home
study to show that grandparents would be suitable adoptive parents as required by West Virginia
Code § 49-4-114(a)(3), “the Legislature has implicitly included the requirement for an analysis
by the Department of Health and Human Resources and circuit courts of the best interests of the
child, given all circumstances of the case.” Napoleon S., 217 W.Va. at 256, 617 S.E.2d at 803,
Syl. Pt. 5, in part. After conducting the home study, the DHHR had several concerns with
placing the children with petitioner. The concerns regarding petitioner’s health, the cleanliness of
her home, potential sleeping arrangements for the children, financial security, and her ability to
help the children cope with recent trauma precluded the MDT and the DHHR from
recommending that placement with her was in the children’s best interests. Ultimately, the circuit
court determined that placement with petitioner was not in the children’s best interests based
upon a totality of the circumstances.

       Lastly, because the proceedings regarding D.D.’s father’s parental rights are ongoing; this
Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for
Child Abuse and Neglect Proceedings to find permanent placement for the child within twelve
months of the date of the dispositional order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

              [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
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       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 15, 2017, order denying petitioner’s motion to intervene is hereby affirmed.


                                                                                     Affirmed.




ISSUED: May 14, 2018


CONCURRED IN BY:

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



 




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