                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In re: B.W. and R.B.
                                                                             September 25, 2017
                                                                                  RORY L. PERRY II, CLERK
No. 17-0303 (Braxton County 15-JA-49 & 15-JA-51)                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

                               MEMORANDUM DECISION
        Petitioners J.W. and D.W., paternal grandparents, by counsel Steven B. Nanners, appeal
the Circuit Court of Braxton County’s March 2, 2017, order placing children B.W. and R.B. in
the permanent custody of the foster parents.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit
court’s order. The guardian ad litem (“guardian”), David Karickhoff, filed a response on behalf
of the children in support of the circuit court’s order. On appeal, petitioners argue that the circuit
court erred in denying their motions for disqualification and in placing the children in the
permanent custody of the foster parents.

        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 June of 2015, the DHHR filed an abuse and neglect petition against the parents.
According to the petition, the parents took B.W., then two years old, to the emergency room for
what they described as a diaper rash. Upon examination, however, personnel observed that the
child had multiple bruises around the eyes, face, back, arms, legs, groin, and buttock.
Additionally, B.W.’s penis was discolored, swollen, and had a half-inch laceration. Personnel
also noted at least three other small injuries to the child. According to the petition, the parents’
only explanation for these injuries was that the child was clumsy and must have fallen.
Following the doctor’s examination, the parents were advised that the child required further
testing. The parents refused and took the child from the hospital against medical advice. Based
on these facts, a referral was made to Child Protective Services (“CPS”), who contacted law

       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). Additionally, this Court’s original scheduling order listed the
style of this matter as In re: B.W., R.W., and R.B. However, the parties agree that child R.W.,
who was placed in the custody of his non-abusing mother, is not at issue on appeal. As such, the
Court hereby amends the style of this case to reflect the fact that the arguments on appeal relate
only to children B.W. and R.B.


                                                  1

enforcement to have the child brought back to the hospital. When a caseworker arrived at the
hospital, it was discovered that B.W. tested positive for marijuana, and the parents could not
account for this fact. The CPS employee spoke with both parents individually, during which each
parent denied having caused the child’s injuries.

        During the initial stages of the proceedings the DHHR identified petitioners, the parental
grandparents of B.W., as a possible placement for the child. However, the DHHR declined such
placement over concerns that petitioners had knowledge of the child’s abuse but failed to protect
him. According to medical evidence, the child’s multiple injuries were at varying stages of
healing. Although petitioners had frequently and recently cared for the child, they failed to refer
the child’s injuries to the DHHR or any other authority. As such, the child was placed with a
foster family.

        In June of 2015, the circuit court held a preliminary hearing, which the parents waived. In
August of 2015, the mother gave birth to R.B. Thereafter, the DHHR amended the petition to
include this child in the proceedings, and R.B. was placed in the same foster home as B.W. In
September of 2015, the circuit court held two adjudicatory hearings. The circuit court heard
evidence from the emergency room physician who testified that B.W. was brought to the
emergency room with extensive injuries. The physician further testified that neither parent could
provide a plausible explanation for these injuries, as the bruises were of varying ages and were,
therefore, not consistent with a single injury. The physician also addressed the fact that the
laceration on the child’s penis was not consistent with diaper rash and that the bruises were not
the result of a fall. Ultimately, the physician testified that the injuries were the result of non-
accidental trauma. After taking evidence, the circuit court adjudicated both parents as abusing
parents

       In December of 2015, the circuit court held a dispositional hearing, after which it
terminated the parents’ parental and custodial rights to the children. Thereafter, petitioners and
the children’s foster parents intervened in the proceedings. Initially, the foster parents were
represented by William A. McCourt Jr.

         In January of 2016, the DHHR performed an assessment of petitioners’ home, which was
approved. The report noted no concerns about petitioners’ home or their abilities as caregivers.
However, despite DHHR representatives informing the home study evaluators of the prior
concerns that petitioners were aware of the abuse to B.W., the home study contained no
information regarding this issue. At this point, the circuit court granted petitioners weekend
visitation with the children.

        In June of 2016, Mr. McCourt withdrew from his representation of the foster parents after
accepting a position with the Braxton County Prosecutor’s Office. The following month,
petitioners filed a motion to disqualify the prosecuting attorney’s office from representing the
DHHR. The circuit court held a hearing on this motion, during which Mr. McCourt testified.
Ultimately, the circuit court ordered that Mr. McCourt refrain from participating in the matter in
any way, including communications of any kind with attorneys or staff in his office, and denied
the motion.



                                                2

        In October of 2016, Mr. McCourt inadvertently signed a certificate of service for
discovery documents mailed to petitioners. That same month, petitioners filed a renewed motion
for disqualification. The circuit court held a hearing on the renewed motion, during which Mr.
McCourt testified that he signed the certificate as one of several presented to him by a legal
assistant. He further confirmed that he had no communications with anyone in his office
regarding the case and did not review any of the discovery materials to which the certificate of
service related. The circuit court again denied the motion to disqualify the prosecutor’s office,
finding that the inadvertent signature did not necessitate disqualification.

        Later that month, the circuit court held two evidentiary hearings concerning the
children’s permanent placement. Prior to the hearing, all four prospective parents underwent
psychological and parental fitness evaluations. Following the evaluation of petitioner
grandfather, the evaluator identified issues with physical functioning due to a prior serious
accident; a history of drug abuse or dependence; prior thoughts of death or suicide; poor anger
control; and a history of antisocial behavior, among other issues. The evaluator also diagnosed
petitioner grandfather with child neglect, based on the fact that he cared for the child at times
when the child showed signs of his parents’ abuse and failed to report the same. The evaluator
determined that petitioner grandfather’s prognosis for improved parenting was “extremely poor.”
As to petitioner grandmother, her evaluation noted that, despite a degree in nursing and training
as a court-appointed special advocate for abused and neglected children, she failed to report a
cigarette burn on the child the week before the emergency room visit that gave rise to the
petition. The evaluation also determined that petitioner grandmother questioned the mother about
the child’s bruises yet took no action, despite her testimony that the mother was a “chronic liar.”
The evaluator also noted that petitioner became angry and aggressive when discussing the foster
parents and voiced an intention to deny them contact with the children. Further, the evaluation
found that petitioner grandmother showed little empathy for the children’s emotional wellbeing.
Ultimately, the evaluator found petitioner grandmother’s prognosis for improved parenting to be
“basically nonexistent.” The evaluations for the foster parents stated that “there [were] no current
concerns with [either foster parents’] ability to appropriately parent” and the prognosis for both
foster parents’ continued parenting was “fair.” Following these evaluations, petitioners retained
another psychologist to perform evaluations on them. However, this evaluator indicated that she
did not review any CPS records and was not aware that there were concerns over petitioners’
failure to report the abuse to B.W. The evaluator found no mental illnesses that would prevent
petitioners from parenting the children, but she also noted that she did not perform parental
fitness evaluations on petitioners and was, therefore, unable to render opinions in this regard.

       At the permanency hearings, petitioners presented evidence from several witnesses,
including their adult daughter, who testified that they supported her through treatment for drug
and alcohol addiction. The DHHR presented evidence from a caseworker who testified that the
children would cry and beg not to attend visits with petitioners. Moreover, a psychologist who
evaluated B.W. provided evidence that the child was “significantly attached” to the foster parents
and did not like visiting petitioners. Further testimony from a psychologist indicated that the
children had established a strong familial bond with their foster parents and that removing them
from the home would be detrimental to their wellbeing. Ultimately, the circuit placed the




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children in the permanent care of the foster parents.2 It is from the circuit court’s final placement
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 proceedings below.

        First, the Court finds no error in the circuit court’s denial of both of petitioners’ motions
to disqualify the prosecuting attorney’s office from representing the DHHR. On appeal,
petitioners argue that Mr. McCourt’s representation of the foster parents and subsequent hiring at
the Braxton County prosecuting attorney’s office required disqualification of the entire office
from representing the DHHR. We do not agree. In addressing conflicts of interest regarding prior
representation of a party and a prosecutor’s office, we have held as follows:

               “Pursuant to Rule 1.11 of the West Virginia Rules of Professional
       Conduct, the fact that an assistant prosecuting attorney previously represented a
       criminal defendant while in private practice does not preclude the prosecutor’s
       office as a whole from participation in further prosecution of criminal charges
       against the defendant, provided that the circuit court has held a hearing on any
       motion to disqualify filed on this basis and determined that the assistant
       prosecutor has effectively and completely been screened from involvement, active
       or indirect, in the case.” Syllabus Point 2, State ex rel. Tyler v. MacQueen, 191
       W.Va. 597, 447 S.E.2d 289 (1994).

Syl. Pt. 3, State v. Anderson, 228 W.Va. 58, 717 S.E.2d 245 (2011). Here, the circuit court held
hearings on both of petitioners’ motions and found that Mr. McCourt was effectively and
completely screened from any involvement in the matter. While it is true that Mr. McCourt later

       2
         According to the parties, the parents’ parental and custodial rights to all the children
were terminated during the proceedings below. The children have been permanently placed in a
foster home with a goal of adoption therein.
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signed a certificate of service, the circuit court found that this was entirely by mistake and did
not represent a violation of its prior order that Mr. McCourt have no communication with anyone
in the office regarding the case. Specifically, the circuit court found that Mr. McCourt
“mistakenly signed a certificate of service” and that “the firewall remained intact.” Ultimately,
the circuit court was of the opinion that this did “not create a conflict of interest which would
cause the [p]rosecuting attorney of Braxton County to be recused.” We agree. Petitioners argue
that Mr. McCourt’s execution of a certificate of service for discovery in their case was
conclusive of the issue of a conflict of interest without any evidence to show that Mr. McCourt
provided the prosecuting attorney with information that would have been prejudicial to them. On
the contrary, all of the evidence below established that Mr. McCourt refrained from discussing
the matter with anyone in the prosecuting attorney’s office. As such, we find no error in the
circuit court’s denial of petitioners’ motions for disqualification.

        Finally, the Court finds no error in the circuit court permanently placing the children with
the foster family. On appeal, petitioners argue that the DHHR was statutorily required to offer
them permanent placement of the children. According to West Virginia Code § 49-4-114(a)(3),

       [f]or purposes of any placement of a child for adoption by the [DHHR], the
       [DHHR] 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 [DHHR] shall conduct a
       home study evaluation, including home visits and individual interviews by a
       licensed social worker. If the [DHHR] 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.

It is true that the DHHR’s home study found petitioners to be suitable adoptive parents. In fact,
the parties even stipulated to this fact at the final evidentiary hearing on permanent placement.
However, petitioners’ argument on appeal ignores our prior holdings addressing this statute.

       We have previously explained that

               “West Virginia Code § 49-3-1(a)(3) [now West Virginia Code § 49-4­
       114(a)(3)] 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 interest 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.” Syl. pt. 4, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801
       (2005).




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Syl. Pt. 2, In re Aaron H., 229 W.Va 677, 735 S.E.2d 274 (2012). Here, the record on the whole
established that placement with petitioners was not in the children’s best interests, despite the
fact that they were found to be suitable for such placement. Specifically, the psychological and
parental fitness evaluations that petitioners underwent raised significant concerns regarding their
ability to properly parent the children. In fact, according to their first evaluations, petitioners’
prognoses for improved parenting were “extremely poor” and “non-existent,” respectively.
Based upon these evaluations, the evaluator recommended that “the children’s best interests will
be better met in an alternative placement.”

        On appeal, petitioners argue that these evaluations were improper, as the evaluators relied
heavily on information obtained from the DHHR. Petitioners similarly argue that the foster
parents’ evaluations indicated that they omitted relevant information and were being defensive.
Therefore, petitioners argue that the foster parents’ evaluations were unable to be accurately
assessed. Finally, petitioners argue that their later evaluations by different psychologists
indicated that they had no issues preventing them from properly parenting the children.
However, the record is clear that petitioners presented this evidence and these arguments to the
circuit court. Essentially, petitioners argue on appeal that the circuit court did not give
appropriate weight to this evidence in reaching its determination about permanent placement. We
do not agree.

        We have routinely held 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.” Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). The record is clear that the circuit
court considered the evidence upon which petitioners rely. Ultimately, however, the circuit court
was “troubled the most” by the conclusions of the psychologists that first evaluated petitioners.
In addressing this evidence, the circuit court found those evaluations to be “objective and
impartial” and that the evaluators “did an excellent job with specific opinions . . . .” Based upon
this evidence, the circuit court found that “it is in the best interests of the children to be placed
permanently in the legal and physical custody of the foster parents . . . .” Because the circuit
court appropriately considered placement with petitioners, as required by West Virginia Code §
49-4-114(a)(3), but ultimately found that placement with the foster parents was in the children’s
best interests, we find no error in this regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 2, 2017, order is hereby affirmed.
                                                                                    Affirmed.
ISSUED: September 25, 2017

CONCURRED IN BY:

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

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