                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In re R.S. and G.S.-1                                                        September 13, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0258 (Mingo County 17-JA-67 and 17-JA-86)                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioners S.S. and G.S.-2, by counsel Justin J. Marcum, appeal the Circuit Court of Mingo
County’s February 26, 2019, order denying their motion to intervene.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 (“guardian”), Diana Carter Wiedel,
filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioners argue that the circuit court erred in denying their motions to intervene.

       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.

        Petitioners are the paternal grandparents of R.S. and G.S.-1. On September 30, 2016, the
DHHR filed an abuse and neglect petition against the parents alleging that G.S.-1 tested positive
for illegal substances at birth.2 In January of 2017, petitioners contacted the DHHR and
complained that G.S.-1 was in foster care and advocated for the child to be returned to the father’s
custody because, in their opinion, the father had done nothing wrong. When the DHHR worker
inquired whether they desired placement of the child, petitioners expressed to the DHHR that they

       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 one of the children and one of the
petitioners share the same initials, they will be referred to as G.S.-1 and G.S.-2, respectively,
throughout the memorandum decision.
       2
         Following his removal from the parents’ custody, G.S.-1 was initially placed in the care
of his maternal grandfather and later placed in foster care. R.S. was placed in a foster home shortly
after he was born in June of 2017. The parents’ parental rights were subsequently terminated.
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were not interested in becoming a placement for G.S.-1. After first contacting the DHHR in
January of 2017, petitioner S.S. called the DHHR several more times to “complain about the
handling of the case,” but never requested placement of the child. On June 21, 2018, petitioners
filed a pro se motion to intervene in the instant proceedings. The motion was later denied.

        After hiring counsel, petitioners filed a second motion to intervene in the matter along with
a brief in support. Petitioners complained that they were never considered as a placement for the
children. They also noted that petitioner G.S.-2 received a pardon “for the miniscule criminal
history that the [DHHR] continues to hang [its] hat on” as a reason for denying custody. The
DHHR and the guardian argued against placement with petitioners because G.S.-1 had been in his
foster placement for over a year and a half and R.S. had been in his foster placement for
approximately one year, since immediately after he was born. Additionally, the DHHR and the
guardian informed the circuit court that petitioner G.S.-2 had prior criminal convictions for
aggravated assault, cruelty to children, terroristic threats, interference with government property,
aggravated stalking, and simple assault. The DHHR and the guardian concluded that petitioners
were not an appropriate placement for the children and that the best interests of the children
necessitated that they remain with their respective foster families. On September 12, 2018, the
circuit court held a hearing on the motion to intervene and addressed petitioners’ request for
placement of the children. In its October 25, 2018, order denying petitioners’ motion to intervene,
the court found that petitioners had knowledge of the abuse and neglect proceedings “throughout
their entirety” and failed to “intervene or request to be a placement” for the children for
approximately two years. The circuit court also noted that petitioner G.S.-2 had “numerous
criminal charges/convictions . . . some of which were crimes against children.”

        On November 16, 2018, petitioners filed a “Motion for Consideration of Alternative
Placement that Was Not Considered by the Court and the Petitioners.” On November 27, 2018, a
Child Protective Services (“CPS”) worker signed an affidavit stating that she had knowledge that
petitioner S.S. previously indicated that she was not interested in placement of the children, and,
therefore, the DHHR “took no action to look into her background or to place the children” with
her. The CPS worker also stated that petitioner S.S. would be an “inappropriate placement for any
child” because she continued to reside with petitioner, G.S.-2, who had a criminal history involving
aggravated stalking, family violence, and cruelty to children. She also explained that “the fact that
[petitioner G.S.-2] received a pardon for these crimes more than [ten] years later, would not change
the opinion of the [DHHR] that he is not an appropriate person to be around children.” The circuit
court held a hearing on January 16, 2019, and denied petitioners’ motion for reconsideration and
their request for placement of the children in its February 26, 2019, order.3

       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

       3
        According to respondents, the permanency plan for the children is adoption in their
respective foster homes.

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       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.

         On appeal, petitioners argue that the circuit court erred in denying their motions to
intervene. In support, petitioners contend that they demonstrated a willingness to adopt the
children, but the DHHR “failed to ever consider placement/adoption of the infant children with the
[p]etitioners.” Further, petitioners assert that they were “entitled to intervene in this matter and
denied a hearing thereto.” We do not find petitioners’ argument to be persuasive. West Virginia
Code § 49-4-114(a)(3) provides as follows:

       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.

        The parties contest whether petitioners were considered for placement of the children.
However, the record indicates that a DHHR worker asked petitioners if they were interested in
placement of G.S.-1 in January of 2017, but petitioners declined and stated that the child should
be returned to his father. The record further shows that the abuse and neglect proceedings in the
instant matter were initiated in September of 2016 and petitioners were aware of the proceedings.
Petitioners were in contact with the DHHR beginning in January of 2017, however, it was not until
June of 2018 that petitioners took any action to intervene in the proceedings. By that time, both
children had been in foster care for nearly their entire lives and had bonded with their respective
foster parents.

        In discussing the grandparent preference, set forth above, this Court has noted that “[t]he
preference is just that—a preference. It is not absolute . . . the child’s best interest remains
paramount.” In re K.E., 240 W. Va. 220, 225, 809 S.E.2d 531, 536 (2018). Simply stated, “[t]he
grandparent preference must be considered in conjunction with our 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) (quoting syl. pt.
3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)).

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        Although petitioners argue that petitioner G.S.-2 was pardoned for his previous criminal
activity, placement with petitioners is not in the children’s best interests. During the proceedings
below, the DHHR and the guardian argued against placing the children with petitioners due to
petitioners’ initial disinterest in obtaining custody of G.S.-1. The DHHR and the guardian
recommended that the children remain with their respective foster families. The record indicates
that the children had been in their respective foster placements for nearly their entire lives and
were in need of permanency and stability in the form of an adoptive home. The children were
placed in foster homes that could accommodate their medical needs and facilitate visits between
the siblings. Based on this evidence, it is clear that placement with petitioners would have been
contrary to the children’s best interests.

        Additionally, petitioners argue that they were denied a hearing on their motion to intervene,
West Virginia Code § 49-4-601(h) provides that “parties having custodial or other parental rights
or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including
the opportunity to testify and to present and cross-examine witnesses. Foster parents, preadoptive
parents, and relative caregivers shall also have a meaningful opportunity to be heard.” Because
petitioners did not have custodial rights to the children, nor were they relative caregivers, they
were not entitled to be heard under this statute. However, the record shows that the arguments on
petitioners’ motion to intervene were fully briefed and that the circuit court held a hearing on their
motion to intervene and then held another hearing on their motion for reconsideration. Based on
the evidence discussed, we find no error in the circuit court’s denial of petitioners’ motion to
intervene.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 26, 2019, order is hereby affirmed.


                                                                                           Affirmed.




ISSUED: September 13, 2019


CONCURRED IN BY:

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


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