                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In re: L.L.                                                                    October 11, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 16-0316 (Clay County 14-JA-68)                                                  OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner, the paternal grandmother of one-year-old L.L., by counsel Anita Harold
Ashley, appeals the Circuit Court of Clay County’s February 26, 2016, order granting permanent
placement of L.L. to his foster parents.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”), Kevin W. Hughart, filed a response on behalf
of the child in support of petitioner receiving permanent placement of now two-year-old L.L. On
appeal, petitioner argues that the circuit court erred in placing the child with the foster parents in
violation of West Virginia Code § 49-4-114(a)(3), which provides a preference to grandparents
for child placement in abuse and neglect cases.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 November of 2014, L.L. was born and tested positive for marijuana and morphine.
Later in November of 2014, the DHHR filed an abuse and neglect petition that alleged the
child’s mother abused controlled substances during her pregnancy with L.L. The initial petition
listed the child’s father as “unknown.” Petitioner’s son submitted to genetic testing and the

       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
         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 on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below.
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results confirmed that he was the child’s biological father. As such, the DHHR filed an amended
petition in March of 2015 that named petitioner’s son as L.L.’s biological father and alleged that
he abused controlled substances and, as a result, was unable to parent the child. Subsequently,
the DHHR placed the four-month-old child with a foster family.3 Before the DHHR even filed its
amended petitioner, petitioner filed, in February of 2015, a motion to intervene in the abuse and
neglect proceedings. She sought the child’s placement at her home in the State of Florida, and
requested visitation with L.L.

       In March of 2015, following an adjudicatory hearing wherein the circuit court found that
L.L.’s parents abused him, petitioner’s counsel asked the circuit court to rule on her motion to
intervene and on her request for visitation but the circuit court deferred its ruling and stated that
it would rule on her motion at the dispositional hearing.

        The circuit court held a dispositional hearing in April of 2015. The parental rights of
L.L.’s biological parents were terminated by order entered on June 17, 2016. Petitioner’s counsel
failed to appear at the hearing but the guardian asked that the circuit court rule on petitioner’s
motion to intervene and her request for visitation.4 The circuit court again deferred ruling on
petitioner’s motion and stated that it would rule at the next review hearing. In July of 2015, for
the purposes of determining whether petitioner could adequately care for the child, the circuit
court ordered the DHHR to complete a study of petitioner’s home in Florida. The home study
was completed in September of 2015 and the DHHR found the home to be suitable.

        In December of 2015, the circuit court held an evidentiary hearing wherein the child’s
foster parents expressed their desire to adopt the child. According to the foster parents, the child
lived in their home since his release from the hospital and they provided him with special needs
care.5 Petitioner also expressed her desire to adopt the child and testified that she had the ability
to properly care for his special needs. The DHHR recommended that the child remain with his
foster parents because of the bond between the child and the foster parents and their attention to
his special needs care. However, the DHHR stated that they received petitioner’s approved home
study and agreed that petitioner’s home was an appropriate placement for the child. The then
newly-appointed guardian made no recommendations regarding the child’s placement. At the
       3
        The child has been in the care of this foster family since the initial DHHR placement.
The record indicates that the child was approximately four months old at the time of placement
although the circuit court’s order indicates that the child was placed at approximately nine
months old after his release from the hospital.
       4
        Kevin W. Hughart is the third guardian ad litem appointed in this case. Originally,
Jerome Novobilski was appointed to represent L.L. An order relieving Mr. Novobilski and
appointing Daniel Armstrong was entered in March of 2015. Mr. Armstrong subsequently took
employment outside of the judicial circuit and the current guardian, Mr. Hughart, was appointed
by an order entered on December 1, 2015.
       5
         As a result of his mother’s drug use, the child has high blood pressure and hepatitis C.
He continues to be monitored for congenital heart conditions that were not corrected by an
earlier surgery.


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close of the evidence, petitioner again moved for a ruling on her request for visitation with the
child and the circuit court denied her request for visitation.

        In January of 2016, the circuit court held a permanent placement review hearing. At the
hearing, the guardian recommended placement of the child with petitioner on the ground that he
did not believe that the evidence presented at the evidentiary hearing rebutted the grandparent
preference, as set forth in West Virginia Code § 49-4-114(a)(3).6 On February 26, 2016, the
circuit court entered an order granting permanent placement of the child with the foster parents.
In that order, the circuit court noted that petitioner had a “fit, apt, and suitable home,” but
ultimately found that a bond existed between the child and his foster parents and concluded that
the child’s best interests were served by his permanent placement with the foster parents. It is
from this order that petitioner now 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 placing the child with the foster
parents in violation of the statutory preference afforded to grandparents in abuse and neglect
       6
           West Virginia Code § 49-4-114(a)(3) provides 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 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.



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cases. In analyzing the grandparent preference, this Court has explained that it remains
subordinate to the child’s best interests. We have held as follows:

                       4.      West Virginia Code § 49-3-1(a) [now 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.

                      5.      By specifying in W[est] V[irginia] Code § 49-3-1(a)(3)
               [now 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.

Syl. Pts. 4 and 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 H., 227
W.Va. 699, 715 S.E.2d 397 (2011) (stating that 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 grandparent preference
must be tempered by court’s consideration of the child’s best interests.); Kristopher O. v.
Mazzone, 227 W.Va. 184, 193, 706 S.E.2d 381, 390 (2011) (stating that “compliance with
federal law does not require that a child be placed with a blood relative, it only requires that such
placement is considered.”).

       Moreover, we have previously held that

               “[o]nce a court exercising proper jurisdiction has made a determination
       upon sufficient proof that a child has been neglected and his natural parents were
       so derelict in their duties as to be unfit, the welfare of the infant is the polar star
       by which the discretion of the court is to be guided in making its award of legal
       custody.” Syllabus point 8, in part, In re Willis, 157 W.Va. 225, 207 S.E.2d 129
       (1973).

Syl. Pt. 4, In re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010).

       In the case at hand, the circuit court correctly considered the evidence in its entirety and
determined the proper placement for L.L. The evidence established that the child developed a

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bond with his foster parents because they have cared for him since his discharge from the
hospital. The circuit court further noted that the foster parents addressed the child’s ongoing
medical needs for approximately twenty continuous months before the permanent placement
hearing and were accustomed to caring for those special medical needs at that time. While the
child could have possibly developed a bond with his grandmother over time, he would have to be
taken from the only parents he has known in order to do so. We do not second guess the circuit
court’s determination that removing the child from his only known home was not in his best
interests. Given the circumstances of this case, we find no error in the circuit court’s order
placing the child for adoption in the foster home.

       For the foregoing reasons, we affirm the circuit court’s February 26, 2016, order.


                                                                                        Affirmed.

ISSUED: October 11, 2016


CONCURRED IN BY:

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




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