Grandmother D.B., pro se, appeals the Circuit Court of
Raleigh County's October 26, 2016, order denying her
custody of J.R. The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel S.L. Evans,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Matthew A.
Victor, filed a response on behalf of the child in support of
the circuit court's order. On appeal, petitioner argues
that the circuit court erred in denying her motion requesting
that the child be permanently placed in her
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.
of 2013, the DHHR filed an abuse and neglect petition
alleging that J.R. was abused by his father, T.R, because his
father left him in J.R.'s mother's care while T.R.
traveled to the State of Florida to attend an in-patient drug
rehabilitation treatment program. According to the petition,
the mother had a long history of drug abuse, did not possess
basic parenting skills, and left the child unattended for
long periods of time. The petition also alleged that T.R.
actively abused drugs, engaged in domestic violence with the
mother in the child's presence, had no contact with the
child for several months, and did not financially or
emotionally support the child. The petition further alleged
that T.R.'s alcohol abuse resulted in an injury to the
child. Following the preliminary hearing, the child was
removed from the home and placed in the care of his foster
mother on July 25, 2013. Subsequently, the child's
biological parents were both granted improvement periods.
August of 2013, petitioner, the child's maternal
grandmother, advised the DHHR that she wished to serve as a
family placement for the child. Ultimately, in April of 2015,
both parents failed to successfully complete their respective
improvement periods. As a result, the mother's parental
rights were terminated by order entered on April 13, 2015. In
May of 2015, petitioner filed a motion to intervene in the
underlying abuse and neglect proceedings. Following the
filing of petitioner's motion, T.R.'s parental rights
were terminated by order entered on July 14, 2015.
of 2015, the circuit court held a hearing and granted
petitioner's motion to intervene. In August of 2016, the
circuit court held a permanency review hearing. The
child's psychotherapist testified that she believed that
it would be harmful to remove the child from his foster
mother's home because he was "happy and
well-adjusted" there. She also testified that removing
the child from the foster mother's home would
"disrupt the attachment he has formed with her."
She further testified that disrupting the child's bond
with the foster mother would endanger his future mental and
emotional health and development. For her part, petitioner
testified that she was a "certified foster parent."
She admitted that she did not see the child for a period of
two years after he was removed from his mother's custody.
The supervised visitation provider testified that the child
enjoyed visits with petitioner, adjusted well to those
visits, and also that the petitioner's home study was
approved. She also testified that, based on her observations,
removing the child from his foster mother's care would
substantially harm his development due to the strong bond
between the child and his foster mother. At the close of the
evidence, the circuit court denied petitioner's motion
for the child's permanent placement in her home and found
that it was in the child's best interest to remain in his
foster mother's care. It is from that October 26, 2016,
order that petitioner appeals.
Court has previously established the following standard of
review: "[t]his Court reviews the circuit court's
final order and ultimate disposition under an abuse of
discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are
reviewed de novo." Syl. Pt. 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). Upon
our review, the Court finds no error in the circuit
court's denial of petitioner's motion that the child
be permanently placed with her.
appeal petitioner asserts that she is the child's
biological grandmother and, therefore, the child should be
placed in her custody and raised with "the rest of [his]
family." West Virginia Code § 49-3-1(3) provides
that, for the purposes of placement, the DHHR "shall
first consider the suitability and willingness of any known
grandparent . . . to adopt the child." We have
previously held that
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.
Syl. Pt. 4, Napolean S. v. Walker, 217 W.Va. 254,
617 S.E.2d 801 (2005). Further, we have also held that the
legislature implicitly included in West Virginia Code §
49-3-1(3) "the requirement for an analysis by the [DHHR]
and circuit courts of the best interests of the child, given
all circumstances of the case." Napolean S.,
217 W.Va. at 256, 617 S.E.2d at 803.
it is clear from the record below that the circuit court was
presented with evidence that the child had been in the foster
mother's custody for most of his life and had a
significant bond with her. Petitioner testified that she had
not visited the four-year-old child for two years before she
filed her motion to intervene in the abuse and neglect
proceedings. Further, the child's treating
psychotherapist testified that his mental and emotional
health would be substantially harmed if he was removed from
his foster mother's care. The supervised visitation
provider also testified that removing the child from his
foster mother's care would substantially harm his
development due to the strong bond between the foster mother
and the child. Given the circumstances of this case, the
circuit court determined that it was in the child's best
interest to remain with his foster mother and that it would
be "harmful now to remove the child from his home and
family [of] over three years." We have held that
"[a] fundamental mandate, recognized consistently by
this Court, is that the ultimate determination of child
placement must be premised upon an analysis of the best
interests of the child." Id. at 259, 617 S.E.2d
at 806. "[T]he best interests of the child is the polar
star by which decisions must be made which affect
children." Michael K.T. v. Tina L.T., 182 W.Va.
399, 405, 387 S.E.2d 866, 872 (1989) (citation omitted).
Accordingly, we find no error and affirm the circuit
foregoing reasons, we find no error in the decision of the
circuit court, and its October 26, 2016, order is hereby
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis