                                                      STATE OF WEST VIRGINIA         FILED
                                                    SUPREME COURT OF APPEALS    February 15, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 
In re C.C.-1, K.C., M.C., D.C., and C.C.-2

No. 18-0843 (Mercer County 16-JA-066-WS, 16-JA-067-WS, 16-JA-068-WS, 16-JA-069-WS,
and 16-JA-070-WS)


                                                          MEMORANDUM DECISION
        Petitioner maternal grandfather C.W., by counsel John E. Williams, Jr., appeals the
Circuit Court of Mercer County’s September 7, 2018, order denying his request for permanent
placement of the children in the abuse and neglect matter involving C.C.-1, K.C., M.C., D.C.,
and C.C.-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 along with a
supplemental appendix. The guardian ad litem (“guardian”), Catherine Bond Wallace, filed a
response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in denying the grandparents permanent placement of 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.

        On April 20, 2016, the DHHR filed an abuse and neglect petition that alleged that the
children’s mother and stepfather abused drugs and alcohol and engaged in domestic violence in
front of the children. The children were subsequently placed with their maternal grandfather,
petitioner herein, and grandmother. In February of 2017, the DHHR received a referral alleging
that the grandparents allowed the mother to have unsupervised contact with the children and that
the grandparents failed to provide the children with proper supervision. An emergency hearing
was held on February 10, 2017, and the children were removed from the grandparents’ home and
placed in foster care. The circuit court found that sibling separation was in the children’s best
                                                            
              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 share the same
initials, they will be referred to as C.C.-1 and C.C.-2, respectively, throughout this memorandum
decision.


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interests and they were placed in separate foster homes. The grandparents were added as parties
to the matter and were given an opportunity to participate in a preadjudicatory improvement
period.

       In March and April of 2017, the grandparents were allowed supervised and later,
unsupervised visits with the children. In December of 2017, the circuit court held a dispositional
hearing in regard to the parents’ parental rights. Ultimately, the circuit court terminated the
mother’s parental rights and the stepfather’s custodial rights in its January 3, 2018, order. The
children’s biological father’s parental rights were terminated in June of 2018.

        In August of 2018, the circuit court held a contested permanency review hearing to
address the grandparents’ request for custody of the children. A DHHR worker testified that the
grandparents were inappropriate caregivers due to multiple incidents that occurred while the
children were in their care. Specifically, the DHHR worker testified that one of the children stole
a grocery cart full of groceries and that the grandparents knowingly accepted the groceries and
did not attempt to correct the child’s behavior. The DHHR worker also testified that the
grandparents allowed the children’s parents to have unsupervised contact with the children, in
violation of the circuit court’s order. The DHHR worker further testified that the children had
various behavioral issues and that the grandparents were unable to consistently or appropriately
discipline the children. Following the presentation of testimony, the circuit court found that the
grandparents were unable to provide an appropriate home for the children and that sibling
separation and adoption in their respective foster homes was in the children’s best interests.
Petitioner appeals from the circuit court’s September 7, 2018, order.

       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.

       In his sole assignment of error on appeal, petitioner argues that the circuit court erred in
not granting the grandparents permanent placement of the children. Petitioner contends that
placement with the grandparents was in the children’s best interests and that adoption by the

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children’s respective foster families was not in their best interests.2 We do not find petitioner’s
argument persuasive.

       West Virginia Code § 49-4-114(a)(3), also known as the grandparent preference statute,
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.

Petitioner acknowledges that the grandparent preference is not absolute and must be consistent
with the children’s best interests. See In re K.E., 240 W.Va. 220, 225, 809 S.E.2d 531, 536
(2018) (“The preference is just that—a preference. It is not absolute. As this Court has
emphasized, the child’s best interest remains paramount[.]”). However, the circuit court found
that placement with the grandparents was not in the children’s best interests. The record shows
that the grandparents allowed unsupervised contact between the children and their parents, in
violation of the circuit court’s orders. Additionally, the grandparents were unable to consistently
and appropriately discipline the children. Based on the totality of the circumstances and the
evidence presented below, the circuit court found that the grandparents were unable to provide
an appropriate home for the children and that separation of the siblings and adoption into their
respective foster homes was in the children’s best interests. Therefore, it is clear that the circuit
court did not abuse its discretion by not placing the children with them.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 7, 2018, order is hereby affirmed.


                                                                                              Affirmed.




                                                            
              2
         Petitioner fails to offer any further support for his argument and only provides a
recitation of portions of the August 31, 2018, hearing transcript. However, the testimony does
not appear to support petitioner’s argument. During the grandmother’s testimony, she described
visits with the children as “wild,” admitted that the children had behavioral issues that were not
addressed by the grandparents, and admitted that the children’s mother had unsupervised contact
with the children and drove the grandmother to the grocery store when there was no food in the
home. Petitioner also fails to provide any legal analysis in support of his argument.
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ISSUED: February 15, 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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