                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: S.S. & A.S.                                                                FILED
                                                                               March 16, 2015
No. 14-1039 (Jackson County 13-JA-17 & 13-JA-18)                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioners, the children’s maternal grandparents, by counsel Amanda J. Ray, appeal the
Circuit Court of Jackson County’s September 15, 2014, order denying their renewed motion to
intervene and motion for the children to be returned to their custody. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”) for the
children, Erica Brannon Gunn, filed a response on behalf of the children supporting the circuit
court’s order and a supplemental appendix. On appeal, petitioners allege that the circuit court
erred in failing to ensure the guardian properly performed her duties; in failing to ensure the
children’s permanency plan was developed early in the abuse and neglect proceedings and
continuously updated; in failing to order a home study on their residence; in removing the
children from their home; in denying them the ability to present evidence in support of their
motions to intervene; in failing to address the statutory grandparent preference; and in failing to
provide the children with stability or ensure their emotional bonds would remain strong.

        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 March of 2013, the DHHR filed an abuse and neglect petition against the parents
alleging that a neighbor found the children, then four years old and three years old, wandering
along a road. Police officers took the children to the home and found no one present. The home,
however, was unfit for human habitation, as it lacked running water, was filled with trash, and
was generally filthy. The police contacted Child Protective Services (“CPS”) and also the
mother, who returned a short time later. According to the mother, she had gone to visit her
parents, petitioners herein, and admitted to leaving the children alone in the home. The petition
further alleged that CPS observed a pipe used for smoking controlled substances and a pill
crusher on the counter.1


       1
        The petition further alleged that the father had no contact with the children, provided
them no support, and had been deported to Mexico. His parental rights to the children were later
terminated.
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        In April of 2013, the circuit court held a preliminary hearing and found that the DHHR
failed to establish imminent danger existed at the time of removal and ordered the children be
“returned to placement as it existed at the time of the filing of the [p]etition,” i.e. petitioners’
home. The next month, the circuit court held an adjudicatory hearing during which the mother
admitted to certain allegations in the petition and was adjudicated as an abusing parent. The
mother was then granted a post-adjudicatory improvement period in August of 2013, and was
permitted to reside in petitioners’ home with the children.

         In October of 2013, the guardian, joined by the DHHR, filed a motion to revoke the
mother’s improvement period and to have the children placed in the DHHR’s legal and physical
custody. The motion alleged that the mother violated the terms of her probation by testing
positive for marijuana, amphetamines, opiates, and buprenorphine, and by providing false
information to her probation officer. The mother was incarcerated at the time of the motion’s
filing. The circuit court held a hearing on this motion on October 21, 2013, after already entering
an order placing the children in the DHHR’s legal and physical custody. At the hearing, the
circuit court ratified its earlier order placing the children in the DHHR’s legal and physical
custody, but also granted the mother’s motion to continue the children’s temporary placement in
petitioners’ home.

        The circuit court held a review hearing in November of 2013, during which the guardian
agreed to a continuation of the mother’s improvement period but asked that it be noncustodial
and that the mother not be allowed to reside in petitioners’ home with the children. The circuit
court thereafter reinstated the mother’s improvement period and allowed her to reside in
petitioners’ home with the children. Thereafter, in January of 2014, the guardian filed a motion
to revoke the mother’s improvement period and modify the children’s placement. The guardian
alleged that the mother continued to fail drug screens and had not sought drug treatment.
Moreover, the guardian alleged that the children required a new placement because of their
continued exposure to the mother’s drug use in petitioners’ home. The circuit court later held a
hearing during which it revoked the mother’s improvement period but denied the motion to
modify the children’s placement.

        In March of 2014, the circuit court held a dispositional hearing and terminated the
mother’s parental rights. It further ordered a multidisciplinary team (“MDT”) to convene to
discuss the children’s permanent placement. Present at the MDT were the guardian, the CPS
caseworker, petitioner grandmother, and the mother’s probation officer. The probation officer
was present to discuss certain text messages that implicated petitioner grandmother in drug
transactions. Petitioner grandmother agreed to a drug screen and tested positive for marijuana,
amphetamines, benzodiazepines, and buprenorphine. Petitioner grandmother then admitted to the
illegal use of multiple drugs, including marijuana, in the two weeks prior to the meeting.
Thereafter, petitioners filed a pro se motion to intervene in the proceedings.

        The next month, the circuit court held a hearing on petitioners’ motion to intervene
during which it took evidence, permitted petitioner grandmother to question witnesses, and
ultimately found that substance abuse occurred in petitioners’ home where the children resided.
The circuit court then granted the guardian’s renewed motion to modify placement and ordered
the children removed from petitioners’ home. The circuit court also denied petitioners’ motion to

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intervene. In July of 2014, the circuit court held a review hearing. Having obtained counsel,
petitioners renewed their motion to intervene. The circuit court allowed petitioners’ counsel the
opportunity to speak on their behalf and took the matter under advisement. In August of 2014,
the circuit court held a review hearing and denied petitioners’ renewed motion to intervene
because of petitioner grandmother’s facilitation of the mother’s drug use and her own drug
abuse. The circuit court further denied petitioners’ motion for return of custody of the children. It
is from this order that petitioners appeal.

       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, the Court finds
no error in the circuit court denying the petitioners’ various motions below, in the guardian’s
representation of the children, in the permanency planning for the children, or in the ultimate
decision to deny petitioners placement of the children.

        To begin, the record is clear that petitioners were provided two opportunities to address
their motions to intervene below, including one instance in which petitioner grandmother was
permitted to question witnesses and another in which their counsel was permitted to address the
circuit court on their behalf. Petitioners have cited to no legal authority requiring the circuit court
to allow them to present evidence or witnesses on their behalf in support of the motions to
intervene, and the Court finds no error in the circuit court’s rulings in this regard. While
petitioners allege that they had additional evidence to support their motions that the circuit court
did not consider, such as the results of their addiction assessments, the Court notes that such
evidence did not support transfer of custody to petitioners. In fact, petitioner grandmother’s
addiction assessment specifically stated that marijuana is her “major problem.” By the time
petitioners filed their first motion to intervene, the circuit court had already removed the children
from the home because of petitioner grandmother’s positive drug screen and the finding that she
enabled the mother’s drug abuse while in the home with the children. As such, inclusion of these
documents would not have supported placing the children in petitioners’ home. Accordingly, we
find no error in the circuit court denying petitioners’ motions to intervene.




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        Moreover, the Court finds no merit in regard to petitioners’ allegations that the guardian
in this matter performed her duties deficiently. While petitioners argue that the guardian failed to
conduct an individual investigation into the matter, present the children’s opinions to the circuit
court, or promote their best interests, the Court disagrees. Conversely, were it not for the
guardian’s tenacity in advocating for the children’s best interests, the circuit court may very well
have not uncovered petitioner grandmother’s drug use while caring for these children. The Court
also finds no merit in petitioners’ assertion that the guardian was required to obtain additional
counsel for the children because her determination of the children’s best interests did not
comport with the children’s express wishes regarding permanency. While petitioners argue that
the children wished to stay in the home, the record shows that due to their tender age, the
children were unable to express meaningful wishes in regard to their permanency. In directing
circuit courts on the subject of post-termination visitation, this Court has specifically instructed
that a child’s wishes be considered in the context of abuse and neglect proceedings only when
the child “is of appropriate maturity” to make such requests. Syl. Pt. 11, In re Daniel D. 211
W.Va. 79, 562 S.E.2d 147 (2002).

        Further, while petitioners argue that the guardian failed to conduct an independent
investigation of the children’s living arrangements because she did not visit their house, the
Court finds that such a visit was unnecessary given the guardian’s meetings with the children in
other locations; her contact with petitioner grandmother via telephone, at hearings, and during
MDT meetings; and her assertion that death threats by the children’s mother caused her concern
with regard to visiting the home in which the mother resided. Further, the record shows that the
guardian zealously advocated on behalf of the children’s best interest by repeatedly petitioning
the circuit court to modify their placement due to the guardian’s concerns about petitioners and
their enabling of the mother’s drug use. Ultimately, the guardian’s position was validated by
petitioner grandmother’s own drug screen yielding positive results for many of the same drugs
that the mother used, as well as evidence indicating that petitioner grandmother used the mother
to purchase drugs for her. For these reasons, the Court finds no merit in petitioners’ argument
that the circuit court did not ensure the guardian performed her duties below.

        Similarly, the Court finds no merit in petitioners’ argument that the circuit court failed to
ensure that the DHHR was properly planning for the children’s permanency. According to the
parties, the permanency plan for the children from the outset of the proceedings was
reunification with the mother or a legal guardianship with petitioners. That petitioners were
ultimately found to be an unfit placement for the children is not evidence that the circuit court
did not ensure appropriate permanency planning throughout the proceedings. Further, while
petitioners assert that they were not encouraged to attend MDT meetings or court hearings as
required by West Virginia Code § 49-6-8(h), the Court notes that this Code section provides only
for notice and the opportunity to be heard at a permanency hearing for certain individuals,
including a “relative providing care for the child.” Moreover, the record clearly shows that
petitioners participated in multiple MDT meetings and hearings below. As such, the Court finds
no error in regard to petitioners’ allegation that the circuit court failed to ensure that proper
planning for the children’s permanency occurred below.

      Additionally, the Court finds no error in the circuit court denying petitioners permanent
placement of the children. While petitioners argue that the circuit court erred in failing to require

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the DHHR to complete a home study of their residence, the Court finds, under the limited
circumstances of this case, that such home study was unnecessary because of petitioner
grandmother’s admitted drug abuse. Specifically, the circuit court was presented with sufficient
evidence, including petitioner grandmother’s failed drug screen, to support its finding that
petitioner grandmother “was an enabler and facilitator for [the mother’s] drug use that led to the
revocation of [the mother’s] post-adjudicatory improvement period.” Because the evidence
established that petitioner grandmother was abusing “some of the same drugs [the mother] was
abusing,” it is clear that the conditions of abuse and neglect in the home where petitioners, the
mother, and the children resided persisted throughout the proceedings below. Moreover,
petitioners’ first motion to intervene below indicated that they did not feel that they should be
required to participate in the home study the DHHR attempted to initiate because they had
already had custody of the children for an extended period of time.

       West Virginia Code § 49-3-1(a)(3) states 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 any such 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.

This statute requires the home study process to be undertaken in order to determine if a potential
grandparent would be a suitable adoptive parent. In the present case, such home study was
unnecessary given that evidence established that petitioner grandmother was engaging in the
same substance abuse that resulted in the mother having her parental rights terminated. As such,
the circuit court was able to make a determination as to petitioners’ suitability as potential
adoptive parents absent a home study. While petitioner argues that the circuit court failed to
consider the three DHHR visits to the home that yielded no concerns about the children being
placed therein, the Court notes that this argument ignores the fact that the DHHR was unaware
that petitioner grandmother was engaging in the same behavior that resulted in termination of the
mother’s parental rights. That the DHHR did not uncover such evidence during a visit to the
home does not render the home suitable for the children.

        Similarly, the Court finds no merit in petitioners’ argument that in reaching a decision on
permanency, the circuit court failed to address the statutory preference for placing children with
their grandparents as outlined in West Virginia Code § 49-3-1(a)(3). As addressed above, the
evidence established that petitioners were not suitable adoptive parents and, therefore, not
entitled to preference in terms of the children’s custody. In denying petitioners permanent
placement of the children and denying their motion for transfer of custody, the circuit court
specifically found that placement in petitioners’ home was not in the children’s best interests.
This is in keeping with our case law on the grandparent preference, wherein we have stated that
the preference is subordinate to the children’s best interests. Specifically, we have held that “a

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crucial component of the grandparent preference is that the adoptive placement of the subject
child with his/her grandparents must serve the child’s best interests. Absent such a finding,
adoptive placement with the child’s grandparents is not proper.” In re Elizabeth E, 225 W.Va.
780, 786, 696 S.E.2d 296, 302 (2010). Because the circuit court specifically found that
placement in petitioners’ home was not in the children’s best interests because of the ongoing
substance abuse therein, it is clear that the circuit court properly considered the grandparent
preference before denying placement in petitioners’ home.

        Finally, the Court finds no merit in petitioners’ argument that the circuit court failed to
provide the children stability or preserve their emotional bonds. While petitioners argue that
immediate removal from a home can be traumatic to children, the Court notes this argument
wholly ignores the fact that petitioners’ home was deemed unsuitable for the children because of
petitioner grandmother’s admitted drug use. Simply put, petitioners’ actions necessitated the
children’s immediate removal by virtue of petitioner grandmother perpetuating the same
substance abuse issues that required termination of the mother’s parental rights. The importance
of maintaining the children’s relationships with petitioners simply does not outweigh petitioner
grandmother’s drug-related behavior. Because remaining in petitioners’ home was not in the
children’s best interests, the circuit court had no choice but to order their immediate removal. As
such, we find no error in the circuit court denying petitioners permanent placement of the
children or in denying their motion for transfer of custody.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
September 15, 2014, order is hereby affirmed.


                                                                                        Affirmed.


ISSUED: March 16, 2015

CONCURRED IN BY:

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




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