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In re L.L.-1

Supreme Court of West Virginia

April 9, 2018

In re L.L.-1, L.L.-2, and L.L.-3

          Kanawha County 17-JA-41, 42, and 43

          MEMORANDUM DECISION

         Petitioner Grandmother, L.D., by counsel Steven M. Wright, appeals the Circuit Court of Kanawha County's September 14, 2017, order denying her placement of L.L.-1, L.L.-2, and L.L.-3.[1] 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"), Christopher C. McClung, filed a response on behalf of the children in support of the circuit court's order and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in failing to consider her for placement of the children and in ultimately denying her such placement.[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 January of 2017, the DHHR filed an abuse and neglect petition against the parents that alleged the father was charged with fleeing from an officer and two counts of child neglect creating a risk of injury. These charges stemmed from the father fleeing from a police officer at a high rate of speed with two of the children in the vehicle. According to the petition, the father attempted to strike an officer with the vehicle and the officer likely would have fired into the vehicle, had he not noticed the children. The petition further raised allegations of domestic violence and failure to provide the children with appropriate medical care.

         In March of 2017, petitioner appeared at the adjudicatory hearing and sought to intervene in the proceedings. Petitioner sought placement of the children and informed the circuit court that she paid for the residence in which the parents lived with the children, in addition to having bought other supplies for the family. In support of her argument concerning placement, petitioner indicated that she saw the children every day before they were removed. The circuit court then inquired why petitioner did not seek to remedy the conditions of abuse and neglect in the home, to which she replied that she did not know their extent. Although the circuit court denied petitioner's motion to intervene at that time, it directed the DHHR to conduct a home study on petitioner's residence. In regard to adjudication of the parents, the circuit court heard evidence that they failed to provide recommended medical attention for the infant, who they removed from the hospital against medical advice and was "severely dehydrated." The circuit court heard further evidence that the parents slept in a car in the driveway with the baby and engaged in extensive domestic violence.

         At a dispositional hearing in May of 2017, the DHHR advised that neither the guardian nor the Court Appointed Special Advocates ("CASA") representative recommended such placement due to concerns that petitioner would not keep the father away from the children. Specifically, the CASA report prepared for the dispositional hearing indicated that placement with petitioner was inappropriate for several reasons, including the fact that she "appear[ed] to be enmeshed and enabling" the "neglectful and violent father and failed to protect the children from neglect while they lived in a home she owned and visited daily. Moreover, the CASA report noted that "the children reportedly . . . did not respond to [petitioner] when she visited them . . . ." Finally, the DHHR elicited evidence that the children were thriving in their current foster home. Ultimately, the circuit court terminated the parents' parental rights.

         At a review hearing in August of 2017, the circuit court again denied petitioner's motion to intervene. The circuit court acknowledged that petitioner passed her home study but also found her testimony lacked credibility. The circuit court further found that petitioner "is not a suitable placement based upon what is in the best interest of the children . . . ."[3] As such, the circuit court denied petitioner placement of the children. It is from the resulting 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, the Court finds no error in the proceedings below.

         First, petitioner argues that the circuit court erred in failing to consider her for placement of the children. We find, however, that petitioner's argument lacks support in the record or applicable authority. According to West Virginia Code § 49-4-114(a)(3),

[f]or 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.

(emphasis added). This statute, setting forth a preference for placement of children with their grandparents, imposes a duty on the DHHR to consider grandparents for placement. Petitioner admits that the DHHR complied with this requirement. The statute does not, however, require the circuit court to agree with the DHHR's recommendation outright. Indeed, we have held that West Virginia Code § 49-1-114(a)(3) "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, in part, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005).

         Further, the record does not support petitioner's assertion that the circuit court failed to consider her for placement of the children. Petitioner cites to a portion of the transcript for the August of 2017 hearing concerning permanency wherein the circuit court stated that petitioner "will not be considered for any type of placement with these children." However, petitioner fails to acknowledge that this statement was made after the circuit court was presented with evidence at multiple hearings concerning whether placement in petitioner's home was in the children's best interests. The circuit court further made this statement after specifically finding that "based on the evidence presented in this case . . . [, petitioner] does not appear . . . to be a suitable placement for the children." Accordingly, it is clear that the circuit court did consider petitioner for placement of the children, as evidenced by its ...


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