                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                FILED
In re K.C.                                                                 February 7, 2019
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
No. 18-0242 (Raleigh County 16-JA-117)                                      SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                             MEMORANDUM DECISION

        The petitioners, S.C. and E.C. (hereinafter “grandparents”), by counsel Daniel J.
Burns, appeal the February 5, 2018, order of the Circuit Court of Raleigh County placing
their grandchild, K.C., with the respondents, K.G. and J.G. (hereinafter “foster parents”),
for adoption in this abuse and neglect case.1 The foster parents, by counsel Jennifer
Dempsey Meeteer, filed a response asking this Court to affirm the circuit court’s decision.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, and the guardian ad litem, Stanley I. Selden, also filed
responses in support of the circuit court’s order. In this appeal, the grandparents argue that
the circuit court erred by failing to apply the statutory preferences for grandparent adoption
and keeping siblings together. They also contend that the circuit court erred by relying
upon the opinion of the guardian ad litem with regard to K.C.’s permanent placement.

       Upon consideration of the parties’ briefs, oral arguments, the record on appeal, and
the pertinent authorities, this 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.




       1
         Consistent with our long-standing practice in cases with sensitive facts, we use
initials to identify the parties. See, e.g., State v. Edward Charles L., 183 W.Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990); see also W.Va. R. App. P. 40(e). In this case, some
of the parties share the same initials. In particular, the child’s mother and maternal
grandfather are both identified as S.C. To avoid confusion, we will refer to these parties
simply as mother and grandfather. In addition, K.C., the child who is the subject of this
appeal, has an older brother with the same initials. When discussing K.C.’s older brother
with the same initials, we will refer to him as the “older K.C.”

                                              1
                             I. Facts and Procedural History

        K.C. is the third child of S.C., his mother, and M.W., his father. When he was born
in August 2016, K.C. tested positive for drugs.2 At that time, K.C.’s parents were already
subject to an abuse and neglect proceeding, which had begun soon after the birth of their
first child, B.W. in 2012.3 The initial abuse and neglect petition, which was filed on
October 12, 2012, alleged that the mother was abusing drugs intravenously and her drug
use prevented her from being able to care for her child. The petition further alleged that
the father was also abusing drugs and his parental rights to another child from a previous
relationship had been terminated because of severe domestic violence. Upon the filing of
the petition, B.W. was removed from the parental home and placed with his maternal
grandparents, the petitioners herein. Thereafter, the parents stipulated to the allegations in
the petition and were granted post-adjudicatory improvement periods. In January 2014,
the father’s parental rights to B.W. were involuntarily terminated because he failed to
comply with the terms of his improvement period. The mother was afforded an additional
improvement period which continued through the birth of her second child, the older K.C.,4
in June 2014. Upon the birth of the second child, the abuse and neglect petition was
amended to include him; the father was also made a party to the proceeding again.

       In August 2014, the circuit court was informed that the grandparents, who then had
physical custody of both children, were allowing the father to visit B.W. even though his
parental rights had been terminated. The circuit court also learned that the grandparents
had allowed the mother to reside in their home throughout the entire case, even when she
was abusing drugs. Consequently, the children were removed from the home of the
grandparents but were soon returned after a multi-disciplinary team meeting, during which
the grandparents agreed to a “safety plan” whereby they would contact Child Protective
Services (“CPS”) and have the mother leave the home if she appeared to be under the
influence of drugs or was allowing the children to have contact with their father. The case
continued with both mother and father agreeing to seek substance abuse treatment.

       In August 2015, the mother was arrested for trespassing, shoplifting, and possession
of a controlled substance. A couple of months later, she attempted to falsify a drug screen.
Subsequently, the mother entered substance abuse treatment again. The mother’s
improvement period continued, as did the improvement period of the father, who had also
entered another drug addiction treatment program.



       2
        The record indicates that K.C. had also been exposed to Hepatitis C.
       3
        B.W. was born in January 2012.
       4
        See note 1, supra.
                                              2
       At the time of K.C.’s birth in August 2016, the home study of the grandparents had
not yet been completed. According to the DHHR, K.C. was placed with the respondent
foster parents because the grandmother told a CPS worker that she could not care for all
three children without their mother’s help and that she did not believe her daughter would
change her behavior if she took custody of the baby. There was also concern on the part
of DHHR that the maternal grandmother’s disabled brother, who also lived in her home,
was a convicted felon.5 A third amended abuse and neglect petition was filed by the DHHR
to include K.C. in the proceeding. K.C. remained in the hospital for three weeks after his
birth to wean him from the drugs in his system. Upon being designated as his foster
parents, K.G. and J.G. immediately began to visit K.C. in the hospital and help feed him.

        On March 24, 2017, a disposition hearing was held with respect to both parents. At
that time, both parents voluntarily relinquished their parental rights to the children. The
court ruled that the mother could have post-termination visitation with the children at the
discretion of the adoptive parents. The court was informed that the grandparents were now
seeking custody of K.C. in addition to the other two older children. At the same time, the
foster parents were also seeking to adopt K.C. Consequently, the grandparents and foster
parents were granted intervenor status. On October 23, 2017, the court held the first
evidentiary hearing concerning K.C.’s permanent placement and heard testimony from
several caseworkers who had been involved in the proceeding.6

        At the first permanency hearing, Traci Hairston, the original CPS worker assigned
to the case, testified that she was involved with the parties through May 2017, when she
left her employment. She stated that shortly after K.C. was born, the grandmother told her
that she was unable to take custody of him because it would be too difficult for her to care
for another child. According to Ms. Hairston, the grandmother further stated that she
thought her daughter, the children’s mother, “might improve” if K.C. was separated from
the family and placed in foster care. Ms. Hairston also testified that the grandparents had
yet to pass a home study when K.C. was born, and DHHR was, therefore, uncomfortable
with placing a third child in their care. Ms. Hairston further stated that it was only when it
became apparent that the mother was not going to succeed in regaining custody of her
children, that the grandmother began sending her text messages to let her know that she
and her husband were also seeking to adopt K.C. Ms. Hairston opined that while there was
a bond between all three children, K.C.’s bond with his foster parents was stronger. Ms.

       5
        Because he lived in the grandparents’ home, the DHHR was required to do a
background check on the grandmother’s brother as part of the home study. It was
ultimately determined that he had been arrested once but was never convicted of any
offense.
       6
       The parties agree that the two older children were properly placed with the
grandparents for adoption. Therefore, the permanency plan with respect to B.W. and the
older K.C. is not at issue in this appeal.
                                              3
Hairston stated that the DHHR’s plan was to allow the grandparents to adopt the two older
children, which they had essentially raised from birth, and to allow the foster parents to
adopt K.C.

       Kelly Cook Stevens, who provided contract services for DHHR, testified that she
was involved with the mother’s parenting and visitation. She stated that the grandmother
told her before K.C was born that she did not want custody of him and desired to have him
placed in a foster home, explaining that she was tired from taking care of the other two
children and her disabled brother. According to Ms. Stevens, the grandmother also said
that she did not believe the children’s mother would ever change if she took custody of the
baby. However, Ms. Stevens later received text messages from the grandmother indicating
that she desired custody of K.C. Another CPS worker provided similar testimony.

        During the permanency hearings, the circuit court also heard considerable evidence
regarding the home studies of the grandparents. Debbie Totten, a home finding service
supervisor, explained the reasons for the failed home studies, which included the
grandparents’ failure to provide character references; failure to undergo physical
examinations to show that they were in good health and able to care for the children; failure
to undergo the required training for foster and adoptive parents; failure to provide proof of
pet vaccinations; failure to remove clutter from the home; failure to purchase an additional
toddler bed or crib; failure to provide vehicle registrations; and failure to provide sufficient
fingerprints for background checks on other adults living in the home. There was also
concern about whether there were enough bedrooms in the home should K.C. be placed
with his grandparents. However, another home finding specialist, Garrett Lester, testified
at a subsequent hearing that there was room in the grandparents’ bedroom for K.C. to sleep.
He explained that DHHR policy permits a child to sleep in a room with adults until the
child is two and a half years old.

       The court also heard testimony from Leah Williams, the adoption worker for the
foster parents. She testified that the foster parents’ home study was completed in October
2014, at which time they were approved as a certified foster home. She described the foster
parents as “proactive parents” going beyond what is asked of them. She noted that their
house is always clean, and there have never been any concerns about their foster
placements. She further testified that the foster parents have two older boys they previously
adopted, and they consider K.C. to be their brother. Ms. Williams stated that there is a
strong bond between K.C. and his foster family.

        During the placement hearing held in December 2017, the maternal grandmother
testified. She admitted that she purposely did not pass the home study by withholding
information and not completing the requirements. She did this to delay the process in an
effort to allow her daughter, the children’s mother, to have more time to complete drug
rehabilitation and be in a position to have the children returned to her. Both foster parents
testified at the subsequent hearing. They explained that K.C. required a lot of care initially

                                               4
because he was born addicted to drugs and was not eating or gaining weight. The foster
father testified that he is a home health nurse and that his experience helped him in taking
care of K.C. He further testified that K.C. suffers from emotional anxiety and is very
attached to his wife, who is a stay at home mom. The foster parents stated that K.C. calls
them “mom” and “dad,” and they believe it would be difficult for him to leave their care
because he has separation anxiety. The foster parents indicated they had no difficulty in
allowing K.C. to visit his maternal grandparents’ home to spend time with his brothers.

       At the final permanency hearing on January 8, 2018, the guardian ad litem gave an
oral report to the court regarding his visits to both prospective placement homes. With
respect to K.C., the guardian ad litem stated that he believed it would be detrimental to
K.C.’s emotional and mental health to be removed from the foster parents’ custody because
he has lived with them his entire life and has strongly bonded with them. Accordingly, the
guardian ad litem recommended that the foster parents be permitted to adopt K.C. and that
the older two children be adopted by the grandparents.

       Thereafter, the court entered its final order placing K.C. with the foster parents for
adoption. The court concluded in its February 5, 2018, order that

                      [t]he grandparent preference provided by law is hereby
              overcome where the record here, reviewed in its entirety,
              establishes that such placement is not in the best interests of
              the child, [K.C.]. Intervenors [grandparents] have failed to
              pass three home studies. They have purposely attempted to
              manipulate the process by skewing matters in favor of their
              daughter. The court is fearful that the [grandparents] will allow
              their daughter, [S.C.], back in the home to help take care of the
              infant, [K.C.], out of necessity, placing the child at high risk of
              harm. The court must act to ensure this child’s safety. There
              are too many dependents in the [grandparents’] household,
              straining the caregiving limits of [grandmother]. [K.C.] is a
              special needs child, who was born drug-addicted. Intervenors
              [foster parents] are particularly well-suited to care for this
              child. A strong bond has developed between [K.C.] and the
              [foster parents], whom he calls “mom” and “dad.” While
              [K.C.] would likely develop a bond with his grandparents over
              time, he would have to suffer the traumatic experience of being
              taken away from the only home he has known in order to be in
              a position to do so. The [foster parents] are quite familiar with
              [K.C.’s] needs, and are in a position to address them if the child
              suffers from “drug baby” issues in adolescence. Furthermore,
              there is evidence that [K.C.] has bonded with two other
              children in the [foster parent] home, who treat [K.C.] like a

                                              5
              little brother. In sum, based upon the entirety of the evidence,
              the court determines that Intervenors [grandparents] have
              simply not been straightforward in their actions and have not
              taken the required steps to be deemed to be proper adoptive
              parents of [K.C.].

Following entry of this order, the grandparents filed this appeal.

                                  II. Standard of Review

       Our standard of review for abuse and neglect cases is well established. In syllabus
point one of In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996),
this Court held:

                      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.

With this standard in mind, we consider the parties’ arguments.

                                      III. Discussion

       The grandparents first contend that the circuit court erred by not granting them
custody of K.C. pursuant to the statutory preference for grandparent adoption. West
Virginia Code § 49-4-114(a)(3) (2015) provides:

                     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

                                              6
              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 grandparents assert that the circuit court erroneously concluded that they did
not want K.C. in their home. The grandmother maintains that she initially spoke to Ms.
Hairston about K.C. living with his mother at a drug rehabilitation facility, and that she
told her that if that was not an option, she wanted custody of K.C. Likewise, the
grandfather contends that he always told Ms. Hairston that he wanted K.C. in his home.
To support their argument, the grandparents point to the fact that another home study was
ordered four months after K.C.’s birth.7 With regard to the suitability of their residence
and the failed home studies, the grandparents note that the problems were never sufficient
to cause the older children to be removed from their home. They argue that the circuit
court erroneously concluded that their home is “too crowded” for the placement of another
child. To support this argument, they point to Mr. Lester’s report and testimony that their
home is sufficient. They also emphasize that evidence was provided that the grandmother’s
brother does not have a criminal conviction, and that they finally passed the home study
whereby they were certified as a kinship placement for the older children without objection
by any party to this matter.8 Finally, with regard to their ability to care for K.C., the
grandparents state that they are clearly able to do so as they testified at the placement
hearing that they are both involved in the care of the children and that the grandmother’s
brother only requires some help during the day. As for K.C.’s special needs, the
grandparents note that the foster parents testified that he is no longer showing any signs of
drug withdrawal and does not require specialized medical care.

       In response, the foster parents argue that the circuit court properly applied the
grandparent preference and determined that it is in K.C’s best interests to be placed with
them. They note that the grandparent preference statute requires both suitability and
willingness of the grandparents as well as a favorable home study. They assert that the
grandparents were unable to satisfy this criteria with respect to K.C., pointing to the
testimony of the DHHR employees regarding the grandmother’s statements both before
and after K.C.’s birth indicating she did not want custody of him. They submit that the
only evidence that the grandparents requested custody of K.C. prior to January 2017 is the

       7
        As noted above, the grandparents had yet to pass a home study at the time of K.C.’s
birth even though the two older children had been placed with them.
       8
      The home study was completed after the circuit court entered its February 5, 2018,
placement order.
                                             7
grandparents’ self-serving statements. The foster parents further argue that the
grandparents are not a suitable placement for K.C. because they have indicated that they
would like the mother, whose rights have been terminated, to live in the home to help take
care of the children. Moreover, the grandmother has admitted that she would experience
difficulty in taking care of K.C. in addition to the other members of her family residing in
the home, who include her disabled brother confined to a wheel chair, her husband with a
disabling back condition and other health issues, her eighteen-year-old grandson, and
K.C.’s siblings, now six and four years old. Finally, the foster parents point to the failed
home studies and the purposeful actions of the grandparents in that regard as evidence
supporting the circuit court’s decision.

       With respect to the statutory grandparent preference provision, this Court held in
syllabus points four and five, respectively, of Napoleon S. v. Walker, 217 W.Va. 254, 617
S.E.2d 801 (2005), as follows:

                     West Virginia Code § 49-3-1(a) [now West Virginia
              Code § 49-4-114(a)] provides for grandparent preference in
              determining adoptive placement for a child where parental
              rights have been terminated and also incorporates a best
              interests analysis within that determination by including the
              requirement that the DHHR find that the grandparents would
              be suitable adoptive parents prior to granting custody to the
              grandparents. The 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.

                      By specifying in West Virginia Code § 49–3–1(a)(3)
              [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 Department of Health and
              Human Resources and circuit courts of the best interests of the
              child, given all circumstances of the case.

This Court observed in In re Elizabeth F., 225 W.Va. 780, 786, 696 S.E2d 296, 302 (2010),
that

              [o]ur prior holdings in Napoleon are critically important
              insofar as we explicitly recognized that a crucial component of
              the grandparent preference is that the adoptive placement of

                                             8
              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 other words, “[t]he preference is just that—a preference. It is not absolute . . . the child’s
best interests remain paramount[.]” In re K.E. & 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)).

         In accordance with the foregoing, and following multiple placement hearings during
which several witnesses provided extensive testimony, the circuit court made an explicit
finding in this case that adoptive placement with the grandparents would not serve K.C.’s
best interests. The circuit court’s decision was based upon multiple factors including the
grandparents’ efforts to manipulate matters in favor of their daughter by purposefully not
completing the home study requirements for more than five years and the grandmother’s
initial refusal to take custody of K.C. out of genuine concern that she would not be able to
adequately care for another child and as an attempt to force her daughter to seek treatment
for her drug addiction. The court also considered the numerous people living in the
grandparents’ home whom depend on care from the grandmother and the strong possibility
that the mother would be allowed by the grandparents to move back into the home to help
care for K.C., putting his safety at risk. Critically, the circuit court considered the strong
bond that has developed between K.C. and his foster parents, who are the only parents he
has ever known, and K.C.’s special needs, which the foster parents have the ability to
address. The circuit court clearly considered the statutory preference for grandparent
adoption but found compelling evidence that it is in K.C.’s best interests to be adopted by
his foster parents. Because the evidence in the record supports the circuit court’s decision,
we find no error.

       The grandparents also argue that the circuit court erred by failing to place K.C. with
them for adoption in accordance with the statutory preference for keeping siblings together.
They contend that the circuit court determined that sibling separation was proper without
providing any reasoning whatsoever. This Court has held:

                     W.Va. Code § 49-2-14(e) [now W.Va. Code § 49-4-
              111(e) (2015)]9 provides for a “sibling preference” wherein the

       9
        West Virginia Code § 49-4-111(e) provides, in pertinent part:

                     (1) When a child is in a foster care arrangement and is
              residing separately from a sibling or siblings who are in
                                               9
West Virginia Department of Health and Human Resources is
to place a child who is in the department’s custody with the
foster or adoptive parent(s) of the child’s sibling or siblings,
where the foster or adoptive parents seek the care and custody
of the child, and the department determines (1) the fitness of
the persons seeking to enter into a foster care or adoption
arrangement which would unite or reunite the siblings, and (2)
placement of the child with his or her siblings is in the best
interests of the children. In any proceeding brought by the
department to maintain separation of siblings, such separation
may be ordered only if the circuit court determines that clear
and convincing evidence supports the department’s
determination. Upon review by the circuit court of the
department’s determination to unite a child with his or her
siblings, such determination shall be disregarded only where
the circuit court finds, by clear and convincing evidence, that
the persons with whom the department seeks to place the child



another foster home or who have been adopted by another
family and the parents with whom the placed or adopted sibling
or siblings reside have made application to the department to
establish an intent to adopt or to enter into a foster care
arrangement regarding a child so that the child may be united
or reunited with a sibling or siblings, the department shall,
upon a determination of the fitness of the persons and
household seeking to enter into a foster care arrangement or
seek an adoption which would unite or reunite siblings, and if
termination and new placement are in the best interests of the
children, terminate the foster care arrangement and place the
child in the household with the sibling or siblings.

        (2) If the department is of the opinion based upon
available evidence that residing in the same home would have
a harmful physical, mental or psychological effect on one or
more of the sibling children or if the child has a physical or
mental disability which the existing foster home can better
accommodate, or if the department can document that the
reunification of the siblings would not be in the best interest of
one or all of the children, the department may petition the
circuit court for an order allowing the separation of the siblings
to continue.

                               10
              are unfit or that placement of the child with his or her siblings
              is not in the best interests of one or all of the children.

Syl. Pt. 4, In re Carol B., 209 W.Va. 658, 550 S.E.2d 636 (2001) (footnote added).

       Contrary to the grandparents’ assertions, the circuit court clearly considered the
statutory preference for keeping siblings together, but found, for the reasons discussed
above, that it is in K.C.’s best interests to reside with his foster parents, separate from his
brothers. The circuit court did not ignore the bond between K.C. and his brothers as it
ordered visitation between them to continue to preserve their right to continued association.
See Syl. Pt. 11, in part, In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996) (“A child
has a right to continued association with individuals with whom he has formed a close
emotional bond . . . provided that a determination is made that such continued contact is in
the best interests of the child.”). Accordingly, we find no error.

        Finally, the grandparents argue that the circuit court erred by relying upon the
guardian ad litem’s recommendation with respect to K.C.’s permanent placement.
According to the grandparents, the guardian ad litem had little contact with them and only
visited their home on one occasion. They assert that “the record clearly demonstrates a
total lack of meaningful interaction between the Guardian ad Litem and subject children to
afford the Guardian ad Litem an[y] real opportunity to determine what the best interests of
any child in the case truly is.” Upon review, the record shows that the guardian ad litem
was present at and participated in all of the evidentiary hearings regarding K.C.’s
permanent placement. In addition, he submitted an eight-page report to the circuit court
detailing his visits to the homes of the grandparents and foster parents. We find no support
in the record for the grandparents’ claim that the guardian ad litem failed to fulfill his
duties, nor do we find that the circuit court abused its discretion by permanently placing
K.C. with his foster parents in accordance with the guardian ad litem’s recommendation.

      Accordingly, for the reasons forth above, the final order of the Circuit Court of
Raleigh County entered on February 5, 2018, is affirmed.

                                                                                Affirmed.
ISSUED: February 7, 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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