                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS                                   FILED
In re: G.B.-1, G.B.-2, and G.B.-3
                                                                                    June 6, 2016
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 16-0196 (Roane County 15-JA-14, 15-JA-15, & 15-JA-16)                            OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Paternal Grandmother A.B., by counsel Lee F. Benford, II, appeals the Circuit
Court of Roane County’s January 6, 2016, order denying her permanent placement of the
children.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Anita Harold Ashley, filed a response on behalf of the children in support of
the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court
erred in denying her permanent placement of the children.2

        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 2015, the DHHR filed an abuse and neglect petition against the children’s
parents alleging that they failed to provide the children with necessary food, clothing, shelter,
supervision, medical care, or education. The DHHR also alleged that the parents used illegal
drugs. In April of 2015, the circuit court held an adjudicatory hearing, during which the parents
stipulated that their substance abuse impaired their ability to care for the children. Accordingly,
the circuit court found that the children were abused and neglected. Subsequently, the guardian


       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). Because all of the children in this case have the same initials, we have
distinguished each of them using numbers 1, 2, and 3 after their initials in this Memorandum
Decision. The circuit court case numbers also serve to distinguish each child.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed at the time of the lower court proceedings.

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filed her report indicating that the parents had “taken some drug tests, all of which have been
positive for substances, and [had] missed multiple screens.”

        In July of 2015, the circuit court held a dispositional hearing. The DHHR presented
evidence of the parents’ drug abuse history, their excessive drug use, and failed drug screens. A
Child Protective Services (“CPS”) worker testified that the mother and father both tested positive
six times and failed to submit to six drug screens.

        Further, the CPS worker testified that the mother was arrested and incarcerated for
“disrupting a governmental process” during the underlying proceedings and failed to undergo a
psychological evaluation. Finally, the CPS worker testified that the father participated in a three-
day “methamphetamine binge,” failed to participate in any other services, and failed to visit the
children since the underlying petition was filed. The mother testified that she did not abuse and
neglect her children. She admitted that she was addicted to prescription drugs and would not
currently pass a drug screen. At the conclusion of the hearing, the circuit court found that there
was no reasonable likelihood that the conditions of abuse or neglect could be substantially
corrected in the near future and the children’s welfare required termination. By order entered on
July 28, 2015, the circuit court terminated the parents’ parental rights to the children.3

        Thereafter, petitioner filed a motion for placement and guardianship of the children
alleging that she was the children’s primary caretaker since birth. Petitioner also argued that she
was the children’s psychological parent. Beginning in October of 2015, the circuit court held
three evidentiary hearings on petitioner’s motion, during which it heard testimony from multiple
witness. Petitioner testified that she was the children’s primary caretaker until they were
removed from her care.4 According to petitioner, “a lot of the [allegations the biological parents]
were charged with [were] never checked out.” Furthermore, petitioner testified that her son was a
“functional addict” and should not have had his parental rights terminated because he should
have been allowed additional “opportunities.” Petitioner presented additional witnesses
corroborating her testimony that she took care of the children prior to their removal.

        Petitioner’s then sixteen-year-old daughter testified that she tried smoking marijuana
while living with petitioner and that petitioner was aware that she was a “cutter” yet failed to
seek appropriate treatment for her behavior. A CPS worker testified that petitioner requested the
DHHR to remove the two older children from her care due to a stressful situation in her
residence. Subsequently, the worker indicated that petitioner was initially granted visitation with
the children, but visitations were terminated because the children were “having temper-tantrums”
after visitation and after petitioner alleged that the foster parents were physically abusing the
children. The CPS worker also testified that petitioner continued to have a relationship with the
children’s parents after their parental rights were terminated and continued to contact the foster
parents after visitations were terminated in violation of the CPS worker’s directive. The foster
       3
        This Court affirmed the termination of the parents’ parental rights by Memorandum
Decisions entered February 16, 2016. See WVSCA No. 15-0829 and 15-0830.
       4
         G.B.-1 had heart surgery in January of 2015, after which he was placed in the foster
parents’ home. Pursuant to a custody arrangement between the foster parents and the biological
parents, the other children were placed with the foster parents in March of 2015.

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mother testified that the children were thriving in her custody, but that they reverted to their old
behaviors following visitations with petitioner. After visitations were cancelled, the foster
mother stated that petitioner and her immediate family began harassing and threatening her
family in an effort to see the children. At the close of evidence, the circuit court directed the
parties to submit proposed findings of fact and conclusions of law by January 4, 2016.

        In December of 2015, the DHHR filed a motion to reopen the evidence following an
incident at petitioner’s residence in which the police were called. On December 26, 2015,
petitioner invited the children’s parents to her home to celebrate Christmas. During the evening,
the children’s mother became intoxicated, destroyed several items in petitioner’s house, and
“body slammed” petitioner’s then twelve-year-old granddaughter. Thereafter, the children’s
mother was arrested for destruction of property, public intoxication, and obstructing an officer.
On January 8, 2016, the circuit court held an evidentiary hearing on the DHHR’s motion. Despite
previously testifying that “[the children’s mother] would never be around in [sic] my home or on
our property” petitioner acknowledged that she willingly invited the children’s mother into her
home and provided her with alcohol. Further, petitioner minimized the incident stating that her
granddaughter simply fell and was not “body slammed.” Finally, a CPS worker testified that
there is a current CPS investigation against petitioner based upon this incident. Ultimately, the
circuit court denied petitioner permanent placement of the children upon a finding that petitioner
was “not a suitable placement” and that it was not in the children’s best interests. It is from this
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). Upon our review, we find no
error in the circuit court denying petitioner permanent placement of the children.

        On appeal, petitioner argues that the circuit court erred in finding that her home was not a
suitable placement for the children. We disagree. This Court has held that “in the context of
abuse and neglect proceedings, the circuit court is the entity charged with weighing the
credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540
S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d


                                                 3
669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538
(1997) (stating that “[a] reviewing court cannot assess witness credibility through a record. The
trier of fact is uniquely situated to make such determinations and this Court is not in a position
to, and will not, second guess such determinations.”). In the case sub judice, we find that the
circuit court was presented with sufficient evidence upon which to determine that petitioner’s
residence was not a suitable placement alternative. While petitioner argues that she presented
unrebutted testimony that she was the children’s primary caretaker, the testimony establishes that
G.B.-1 has been in foster placement for the majority of his life and that petitioner requested the
DHHR to remove G.B.-2 and G.B.-3 from her care due to issues within her own home. Evidence
further established that petitioner minimized the biological parents’ conduct during the
underlying abuse and neglect proceedings, continued to have contact with the children’s
biological mother after testifying that petitioner would not be allowed on her property, and
subjected her own family to the biological mother’s violent behavior which resulted in
petitioner’s granddaughter being “body slammed.” As such, we find no merit to this assignment
of error.

        Related to this assignment of error, petitioner also argues that the circuit court erred in
failing to apply the grandparent preference and further finding that placement with her was not in
the children’s best interests. Petitioner claims the circuit court, pursuant to West Virginia Code §
49-4-114(a)(3), should have placed the children with her, as their paternal grandmother, because
she was the children’s primary caretaker since birth.5

       While it appears that petitioner’s home study was approved in April of 2015, petitioner’s
argument ignores the law in this State. This Court has been clear that the preference for placing
children with grandparents is subordinate to the best interests analysis. We have held as follows:

               West Virginia Code § 49-3-1(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) 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.



       5
        Because the permanency hearing in this matter took place after May 20, 2015, the day
the new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into effect, the Court
will apply the revised versions of those statutes on appeal.

                                                 4
Syl. Pts. 4 & 5, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005); see also In re
Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012) (affirming circuit court order that placed child
with foster parent over grandparent based upon the child’s best interests.); In re Hunter, 227
W.Va. 699, 715 S.E.2d 397 (2011) (the 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.” (internal citations omitted)); In
re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010) (holding that the grandparent preference
must be tempered by a court’s consideration of the child’s best interests.).

       Moreover, petitioner’s argument ignores this Court’s recent holding that

                [w]hile the grandparent preference statute, at W.Va. Code § 49–3–1(a)(3)
       (2001) (Repl. Vol. 2014), places a mandatory duty on the West Virginia
       Department of Health and Human Resources to complete a home study before a
       child may be placed for adoption with an interested grandparent, “the department
       shall first consider the [grandparent's] suitability and willingness . . . to adopt the
       child.” There is no statutory requirement that a home study be completed in the
       event that the interested grandparent is found to be an unsuitable adoptive
       placement and that placement with such grandparent is not in the best interests of
       the child.

Syl. Pt. 10, In re L.M., 235 W.Va. 436, 774 S.E.2d 517 (2015). In determining that placement in
petitioner’s home was not in the children’s best interests, the circuit court relied on the
substantial testimony from the three evidentiary hearings and the hearing on the DHHR’s motion
to reopen the evidence based upon the events in petitioner’s home in December of 2015. As
discussed above, the circuit court heard testimony that petitioner failed to seek appropriate
treatment for her own child, minimized the parents’ behavior that led to the filing of the abuse
and neglect proceedings, and harassed the children’s foster parents after visitations were
terminated. Importantly, the circuit court heard evidence that petitioner continued to associate
with the biological parents after their parental rights were terminated, which resulted in the
biological mother “body slamming” petitioner’s minor granddaughter during the altercation in
December. After hearing the evidence at the four evidentiary hearings, the circuit court found
that “the presumption in favor of placement of the children with the grandparent has been
rebutted.” For these reasons, this Court affirms the circuit court’s determination that petitioner
was not an appropriate permanent placement for the minor children.

        For the foregoing reasons, we affirm the circuit court’s January 6, 2016, order denying
petitioner’s permanent placement of the children.

                                                                                           Affirmed.

ISSUED: June 6, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum


                                                 5
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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