                                STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                FILED
In re M.L.
                                                                              May 8, 2020
No. 19-0219 (Kanawha County 16-JA-569)                                         released at 3:00 p.m.
                                                                           EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


                                MEMORANDUM DECISION


       Petitioner W.B. 1 appeals the Circuit Court of Kanawha County’s February 7, 2019
disposition order granting permanent guardianship of the child, M.L., to the child’s
maternal great aunt. 2 The West Virginia Department of Health and Human Resources
(DHHR) 3 and the guardian ad litem (guardian) 4 filed responses in support of the circuit
court’s order. W.B.’s contention on appeal is that the DHHR unjustly removed M.L. from
her placement with W.B. based on insufficient evidence of child abuse and neglect and
without a meaningful improvement period.

       Upon consideration of the standard of review, the briefs, the record presented, and
oral argument, the Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the order of the circuit court is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

                           I.     Factual and Procedural Background

      On July 9, 2012, when M.L. was nearly six months old, her mother, G.L., signed
and notarized a document giving temporary custody of M.L. to W.B. 5 W.B. is not a blood

       1
           Petitioner is represented by counsel Matthew A. Victor, Esq.
       2
          Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. 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).
       3
           The DHHR is represented by counsel S.L. Evans, Esq.
       4
           Bryan B. Escue, Esq. serves as guardian ad litem.
       5
          According to testimony and evidence presented below, G.L. executed similar
documents with other individuals with respect to her other children. G.L.’s other children
are not the subject of this appeal.

                                              1
relative, but according to the mother, W.B. had “always been there ever since [M.L.] was
born.” There is conflicting testimony as to whether M.L. remained in W.B.’s sole custody
from that point forward, but W.B. was M.L.’s primary custodian. In 2016, the mother
became the subject of an abuse and neglect petition in relation to her criminal charges for
purchase of controlled substances that she conducted while her children were in the car. 6
In addition to alleging that drug use substantially impaired the mother’s ability to parent,
the Petition alleged that the children had been dropped off with various custodians
throughout their lives without any permissions, orders, or other information that would
permit those custodians to obtain medical care or benefits. Based on the allegations in the
Petition, the DHHR was granted temporary legal and physical custody of the children, but
the court ordered that the children remain in placement with their respective custodians. 7
Because M.L. was residing with W.B. at the time the Petition was filed, W.B. was named
in the Petition and appointed counsel.

       The original Petition contained no allegations of abuse and neglect against W.B.
However, at the preliminary hearing, the circuit court ordered all parties to undergo a drug
screening during which W.B. tested positive for alcohol, marijuana and cocaine. The
DHHR filed an Amended Petition to that effect, and the child was removed from W.B.’s
home. 8 W.B. was required to undergo frequent drug screenings, but M.L. was placed back
into W.B.’s home. 9

       On Saturday, July 15, 2017, the DHHR went to W.B.’s home, removed M.L. from
her custody, and placed her with L.M., a great aunt who was already the custodian for

       6
          Six children are the subject of the underlying petition, and those children have
different or unknown fathers and different custodians. Problematically, despite the fact
that the six children listed in the Petition are in the custody of various different individuals
as opposed to their mother, the Petition does not parse out which allegations refer to which
child or which custodian-respondent. However, there is no evidence in the record to
indicate that M.L. was one of the children in the vehicle, nor does the DHHR appear to
have alleged as much.
       7
         Although the Petition alleges that W.B. is the legal guardian of M.L., W.B. stated
to the circuit court that she did not have a legal guardianship in place. Rather, M.L. was
residing with her at the time the proceedings against the mother were instituted.
       8
         While the Amended Petition does contain an allegation against W.B. and one other
custodian who also failed the drug screening, the record before this Court indicates that the
State did not pursue those allegations in the form of adjudication or otherwise.
       9
         Later in the proceedings, the State ultimately requested that the court discontinue
the drug screenings since W.B. had not failed any screening after the one administered at
the preliminary hearing.

                                               2
M.L.’s half-sibling, M.F. 10 W.B. filed a motion with the circuit court to challenge that
removal as soon as was practicable. The circuit court held a hearing on the motion on
August 2, 2017. During the hearing, W.B.’s counsel elicited testimony regarding the
removal from Crystal Pauley, an employee of Children First. Ms. Pauley had performed a
home study on W.B.’s home and recommended that W.B.’s home study not be approved
because W.B.’s magistrate court check came back with a felony possession charge from
2005, and three misdemeanor charges for possession, trespassing, and public intoxication
from 2005. W.B., when initially provided placement of M.L. at the beginning of the case,
had marked in her paperwork that she had not been convicted of any crime, pled guilty, or
pled nolo contendere to any crime. Additionally, it appeared that W.B. had not yet
completed her physical examination with a physician.

        As to the criminal charges, Ms. Pauley admitted that she did not follow up with the
circuit court to determine what had been the disposition of the felony charge, and W.B.’s
counsel represented to the court that it had been pleaded down to a misdemeanor. Ms.
Pauley also confirmed that while it appeared that the misdemeanor charges had not been
dismissed, she did not know the ultimate disposition of those charges either.

       With respect to W.B.’s home, Ms. Pauley testified that while she was concerned
with W.B.’s debt-to-income ratio, M.L. was well cared for, had proper food, shelter,
clothing, toys, and “everything that every other child would desire.” Ms. Pauley testified
that M.L. called W.B. “mom,” had an attachment to her, and was happy in the home. Yet,
due to the criminal charges, debt-to-income ratio concerns, and lack of a physical exam,
Ms. Pauley recommended that the home study be denied. Although Ms. Pauley made
recommendations as to home studies, she did not have the authority to approve or deny
them. That authority lies with the DHHR.

        W.B. then elicited testimony from DHHR worker Jessica Stewart. Ms. Stewart
testified that she confirmed there was no felony record, but there were two misdemeanors
reported. Likewise, at the beginning of July 2017, Ms. Stewart was directed to municipal
court where she was informed that W.B. had two outstanding warrants for open container
charges from 2011 and 2013. Ms. Stewart testified that it was DHHR policy that a
prospective foster or kinship placement cannot have any active warrants or be on parole,
and when a home study is denied, it is recommended to remove the child. Ms. Stewart
stated that her supervisors could suggest she get a waiver, and that she supposed the judge
“in one sentence [could] waive all this nonsense.” However, those warrants were never

       10
          L.M. admitted to asking the DHHR to place M.L. with her because the family did
not want her placed with W.B. L.M. also wrote ex parte communications to the circuit
court expressing disagreement with the court’s decision to place M.L. with W.B. Further,
there is evidence in the record to suggest that L.M. coached M.L. to say things she would
not be able to articulate at age five, including remarks that W.B. had no “style” or “class,”
which, as pointed out by the guardian, are atypical remarks of a five-year-old.

                                             3
investigated further, and W.B. presented a pretrial diversion agreement to demonstrate that
those warrants had been resolved. According to Ms. Stewart, the home study was denied
on July 27, 2017, when the recommendation was presented to her supervisors – twelve
days after the child had already been removed from W.B.’s home.

       L.M. then testified that she was informed on Friday, July 14, 2017, that she would
be receiving placement of M.L. the following day and to take steps to obtain a medical card
for her. Neither the guardian, W.B., nor the court were informed that the child was going
to be removed from W.B.’s home. L.M. enrolled M.L. in kindergarten the following
Tuesday, so by the time of the hearing on her removal, M.L. had been in school for
approximately two weeks.

        The circuit court and the guardian agreed that the removal of M.L. from W.B.’s
home was a “tremendous” error. The circuit court found that the DHHR had improperly
removed M.L. where there was no danger, no review by the guardian or the attorneys
representing the DHHR, and no court approval. And, the circuit court expressed its belief
the situation had been manipulated to remove custody from W.B. Despite the error in
removal, the guardian believed that it might be damaging to M.L. to tear her from the
school she had just begun and place her back with W.B. where she would begin a new
school shortly after. Likewise, L.M. maintained custody of M.L.’s sister, M.F., and M.L.
had formed an attachment to her sister despite being apart for five years. For those reasons,
the guardian recommended that the court not punish a child for the wrongdoings of the
DHHR and to maintain placement with L.M. so as not to cause another upheaval in M.L.’s
life. The circuit court took the guardian’s recommendation, and changed placement of M.L.
to L.M. and ordered that W.B. receive unsupervised weekend visitation.

        L.M. maintained custody of M.L. throughout the remainder of the proceedings, and
W.B.’s visitation was abbreviated from every weekend to once or twice per month in order
to accommodate visitation with the mother, who was granted an improvement period. At
the disposition hearing, the mother agreed to relinquish her custodial rights in the form of
permanent legal guardianships with their current placements. As to M.L., the mother
testified that she felt it was in M.L.’s best interest to stay with L.M. and M.L.’s sister, but
that “[W.B.] should be in [M.L.’s] life. She’s always been in her life.” The guardian also
attested that M.L. had a significant attachment to her sister, who was placed with L.M. The
circuit court concluded that a permanent legal guardianship with L.M. was in M.L.’s best
interests, with visitation between M.L. and W.B. to be addressed at future multi-
disciplinary team meetings. Petitioner appeals that final disposition order.

                                    II.    Standard of Review

      We evaluate the circuit court’s disposition order in this case from a deferential
viewpoint:



                                              4
                       In reviewing challenges to the findings and conclusions
                of the circuit court, we apply a two-prong deferential standard
                of review. We review the final order and the ultimate
                disposition under an abuse of discretion standard, and we
                review the circuit court’s underlying factual findings under a
                clearly erroneous standard. Questions of law are subject to a
                de novo review. [11]

Specific to the abuse and neglect context, we have also established a deferential 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.[12]

                                           III.       Discussion

      On appeal, W.B.’s only contention is that M.L. was unjustly removed from her
custody and permanently placed with L.M. without providing W.B. a meaningful
improvement period. At the heart of W.B.’s claim, however, is the misconception that
M.L. was removed from her custody for abusing and/or neglecting M.L. Rather, M.L. was
removed from her custody for failing a home study that, based upon the investigation
completed by the DHHR, would have precluded M.L.’s permanent placement with W.B.
Notwithstanding that W.B. has provided no authority to support her assertion that her rights



       11
            Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167
(1997).
       12
            Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

                                                  5
as a pre-petition custodian are tantamount to those of a natural parent, under these facts,
that argument is irrelevant. 13

       It is undisputed and we recognize that the DHHR’s removal of this child from
W.B.’s custody was done improperly. Not only were the grounds for removal factually
precarious and the investigation into those facts cursory, but the DHHR also appears to
have given no thought to the impact on this child of tearing her from the only home she
had ever known. We are appalled at the idea that the DHHR would have intentionally
removed a child on a Saturday in order to preclude court intervention when that removal
was not an emergency removal under West Virginia Code § 49-4-602(c). This removal
was reportedly made pursuant to DHHR policy. The DHHR ignores that M.L. was placed
with W.B. by court order. In the absence of emergency circumstances, which were clearly
not present here, the DHHR had no unilateral authority to change the custody of a child
from that determined by court order without court approval. That the DHHR removed this
child under these circumstances without court approval and without even notifying the
guardian is inexcusable.

        However, this Court is not tasked with reviewing alleged error by the DHHR, but
by the circuit court. Here, the circuit court held a placement review hearing after the
removal. W.B. was provided meaningful opportunity to be heard and presented and cross-
examined witnesses. The circuit court indicated that the placement issues W.B.’s criminal
history presented could have, and should have been addressed and ruled on by the court
prior to removal, but nonetheless recognized its inability to rewind the clock and made a
decision that it believed to be in the child’s best interests going forward. The record is
plain that the circuit court agonized over the practical realities that would result from the
DHHR’s hasty actions, but found that the child’s best interests dictated placement with
L.M., and to provide W.B. with a liberal visitation schedule. That decision is supported
both by the guardian’s recommendation that further disruption might be harmful to M.L.,
particularly as she had just started kindergarten at a new school, and the guardian’s
observation that M.L. was forming a bond with her sister who resided with L.M. Given
that there is sufficient evidence in the record to support the placement decision rendered
by the circuit court, it is not the province of this Court to substitute our own judgment, and
we cannot conclude that the circuit court erred in maintaining M.L.’s placement with L.M.

       For similar reasons, we do not find that the circuit court erred in permanently placing
M.L. with L.M. As attested to by the guardian, M.L.’s bond with her sister became stronger
over the course of the proceedings. Both children reportedly benefitted from being in the
same home. M.L. was in an environment “conducive to her education,” was provided

       13
          In addition to this material distinction that the basis of removal was not an
allegation of abuse or neglect, the record does not indicate that W.B. even requested an
improvement period in compliance with West Virginia Code § 49-4-610 and, therefore, we
do not find error in the circuit court’s failure to provide W.B. an improvement period.

                                              6
stability, and by all accounts was doing well in L.M.’s care. While W.B.’s argument that
the DHHR’s actions set this case on a different course for disposition is well-taken, the
circuit court nonetheless made the initial decision to change the placement of M.L. based
on the best interests of the child, and made the ultimate decision to place M.L. in a
permanent guardianship with L.M. based on the best interests of the child. It is that
standard that reigns supreme in abuse and neglect proceedings:

                Indeed, if one thing is firmly fixed in our jurisprudence
                involving abused and neglected children, it is that the “polar
                star test [is] looking to the best interests of our children and
                their right to healthy, happy productive lives[.]” In re Edward
                B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001). This
                Court has repeatedly stated that a child’s welfare acts as “the
                polar star by which the discretion of the court will be guided.”
                In Re: Clifford K., 217 W. Va. 625, 634, 619 S.E.2d 138, 147
                (2005)[.][14]

Because the circuit court had ample evidence before it that a permanent guardianship with
L.M. was in the best interests of M.L., we find no error in the exercise of that discretion.

                                         IV.       Conclusion

     For the reasons stated above, the February 7, 2019 order of the Circuit Court of
Kanawha County is affirmed.




                                                                                   Affirmed.

ISSUED: May 8, 2020

CONCURRED IN BY:

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



       14
            In re Timber M., 231 W. Va. 44, 59, 743 S.E.2d 352, 367 (2013).

                                               7
