                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re D.F. and J.F.                                                             November 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0454 (Gilmer County 16-JA-10 and 16-JA-11)                                    OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner C.J., the children’s maternal grandmother, by counsel Daniel R. Grindo,
appeals the Circuit Court of Gilmer County’s April 13, 2018, order granting permanent
placement of D.F. and J.F. to 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”), Mary Elizabeth Snead, 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 failing to properly consider the grandparent preference and the best
interests of the children, and in terminating her 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 June of 2016, Child Protective Services (“CPS”) opened a case with the mother and
father of J.F. and D.F. to address concerns with the parents’ caregiving capabilities. CPS
implemented a safety plan with services to address its concerns, and the children were placed in
the care of their maternal aunt. At some point, the DHHR filed an abuse and neglect petition
against the parents and alleged that they failed to comply with the safety plan.2 The parents 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).
              2
        Another child, A.G., was involved in the proceedings below. J.G. is the father of A.G. A
child abuse and neglect petition was also filed against him during the proceedings below. J.G.
was granted an improvement period, which he successfully completed, and the petition against
him was dismissed. A.G. was placed in his care and the permanency plan for the child is to
 
                                                                                      (continued . . .)
                                                                   1
 
adjudicated as abusing parents in August of 2016 and were granted post-adjudicatory
improvement periods.

        In November of 2016, the children were removed from the care of their maternal aunt due
to domestic violence in the home and were placed in a non-adoptive foster home. Around
February of 2017, the children began respite visits with the current foster parents and were
completely transitioned into the home by April of 2017. During the course of the proceedings,
the children’s maternal great-grandmother, C.R., inquired into gaining placement of the children
and a home study was initiated. The multi-disciplinary team discussed placement with the great-
grandmother, but expressed concerns due to her advanced age of seventy-five.

       A final dispositional hearing was held in August of 2017, wherein the circuit court
terminated the parents’ parental rights.3 Thereafter, the great-grandmother and petitioner, the
maternal grandmother of the children, filed a joint motion to intervene, seeking placement of the
children.4 The circuit court held a hearing on the matter in September of 2017, wherein it granted
the motion to intervene, but denied placement of the children with petitioner and the great-
grandmother at that time. However, petitioner and the great-grandmother were granted
supervised visitation.

        A home study of the great-grandmother’s home was completed later in August of 2017.
The evaluator found that the great-grandmother’s home was appropriate, but expressed concerns
regarding the great-grandmother’s ability to provide long-term care to the children due to her
advanced age. The great-grandmother obtained a medical waiver from her physician stating that
she was physically capable of caring for the children and her home study was eventually
approved based on the waiver, with the understanding that petitioner would be available to assist
the great-grandmother in taking care of the children. At that time, petitioner lived in Ohio and
was a full-time student, but reported that she planned to move into the great-grandmother’s home
in January of 2018. The foster parents filed a motion to intervene in December of 2017, which
the circuit court granted. In January of 2018, petitioner moved into the great-grandmother’s
home and another home study was performed and approved shortly thereafter.

       The circuit court held a permanency hearing for the children over the course of two days
in February of 2018 and March of 2018. The DHHR recommended that placement of the
children remain with the foster parents due to their strong bond, the fact that the children had
been in their care for eleven months, the great-grandmother’s age and health, and petitioner’s
                                                                                                                                                                                                
remain in his care. As such, petitioner states that she does not request placement of A.G. and she
is not at issue on appeal.
              3
        The mother appealed the termination of her parental rights to the children. This Court
affirmed the circuit court’s termination by memorandum decision. See In re A.G., No. 17-0875,
2018 WL 1256610, (W.Va. March 12, 2018)(memorandum decision).
              4
        While the great-grandmother and petitioner filed a joint motion to intervene during the
proceedings below, the great-grandmother did not appeal the circuit court’s final order.



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alleged lack of interest in gaining placement of the children. Petitioner testified that she was
never contacted regarding placement of the children. Nevertheless, petitioner participated in
visits with the children until they were stopped by the DHHR due to not having a court order.
Petitioner reported that she then moved the circuit court to grant her visitation, which was
approved, and that she consistently participated in visitation since that time. Petitioner stated that
she intervened in the case once she determined that the mother’s parental rights were going to be
terminated and that, contrary to the DHHR’s assertions, she did express an interest in gaining
placement of the children. Following testimony, the guardian proffered that the children should
remain with the foster parents. The guardian stated that, contrary to petitioner’s testimony, she
had been asked whether she was interested in placement of the children, but declined to
participate in a home study because she was in school and unable to care for the children at that
time.

       After hearing evidence, the circuit court found that the best interests of the children were
to remain in their placement with the foster parents. The circuit court opined that petitioner only
became interested in placement of the children when it became apparent that placement with the
great-grandmother was problematic due to her age. The children had been placed with the foster
parents for eleven months and demonstrated a significant bond with them. As such, the circuit
court granted permanent placement of the children to the foster parents and terminated visitation
with petitioner. It is from the April 13, 2018, 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 in failing to consider the
“grandparent preference” set forth in West Virginia Code § 49-4-114(a)(3). According to
petitioner, the circuit court’s final order is devoid of any consideration of this statutory
preference for permanent placement of children with grandparents. Petitioner argues that the
circuit court failed to consider that the DHHR did not comply with the statute by failing to make
inquiry into whether she desired placement of the children, failing to consider her approved
home study, and recommending that placement of the children remain with the foster parents.


                                                  3
 
She further alleges that the circuit court failed to consider the best interests 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.

However, we have also noted that “[t]he preference is just that – a preference. It is not absolute.”
See In re K.E., 240 W.Va. 220, --, 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) (quoting Syl. Pt. 3,
in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996)). Accordingly,

       [b]y specifying in West Virginia Code § 49-3-1(a) [now 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 --, 809 S.E.2d at 533, Syl. Pt. 3 (quoting Syl. Pt. 5, Napoleon S. v.
Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005)).

        Contrary to petitioner’s assertion, the circuit court did not fail to consider the grandparent
preference set forth in West Virginia Code § 49-4-114(a)(3). While the order contains sparse
findings, the transcript of the permanency hearing is replete with the circuit court’s consideration
of placement of the children with petitioner and the foster parents. The circuit court found that
petitioner only became interested in placement of the children once the DHHR raised concerns
regarding the great-grandmother’s advanced age and ability to care for the children. The
guardian proffered that petitioner was contacted regarding placement of the children but declined
to participate in a home study at that time due to attending school. Petitioner did not take steps to
gain placement of the children until it was clear the parents’ parental rights would be terminated
in August of 2017, nearly a year after the children were removed from their parents’ care. Due to
petitioner’s inaction, the children were moved to a foster home and remained there throughout
the case, enabling them to develop a strong bond with the foster parents.

       Based on the record, we find that the DHHR complied with the process set forth in West
Virginia Code § 49-4-114(a)(3) by identifying petitioner, who declined to participate in a home


                                                  4
 
study at that time. Once petitioner expressed an interest in placement, a home study was
performed and she was approved for placement. The record demonstrated that, despite
petitioner’s approved home study, the best interests of the children necessitated permanent
placement with the foster parents. The home study evaluator testified that she approved
petitioner’s home study by giving the great-grandmother an age waiver, simply because they
were relatives. She testified that “we want more relatives now” and repeatedly confirmed that the
approved home study was based upon petitioner’s status as a relative and the great-
grandmother’s medical waiver. Her testimony did not demonstrate clear consideration of the
children’s best interests. In contrast, several other witnesses testified that the children
demonstrated a strong bond with the foster parents and did not seem to have a strong bond with
the grandparents. The children called their foster parents “mommy and daddy” and were
reluctant to leave them for visits with petitioner. After visits with petitioner, they were always
ready to return home to their foster parents. Due to this strong bond, the DHHR and the guardian
recommended that placement of the children remain with the foster parents.

        Although petitioner was approved as an appropriate placement for the children, the
evidence as a whole indicated that their best interests necessitated 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 testimony 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.

         Petitioner also argues that the circuit court erred in terminating her visitation with the
children. According to petitioner, maintaining a relationship with her is in the children’s best
interests. We find petitioner’s argument to be without merit.

       We have previously held that

              [t]he Grandparent Visitation Act, W.Va. Code § 48-10-101 et seq., is the
       exclusive means through which a grandparent may seek visitation with a
       grandchild. The best interests of the child are expressly incorporated into the
       Grandparent Visitation Act in W.Va. Code §§ 48-10-101, 48-10-501, and 48-10-
       502. Pursuant to W.Va. Code § 48-10-902, 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.

In re Hunter H., 231 W.Va. at 118, 744 S.E.2d at 229, Syl. Pts. 1-3. 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 denying petitioner the same. In light of the anticipated
adoption by a non-relative, we find that she is entitled to no relief in this regard.


                                                 5
 
       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 13, 2018, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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