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In re J.C.

Supreme Court of West Virginia

June 12, 2019

In re J.C., C.P., and E.P.

          (Calhoun County 17-JA-28, 17-JA-29, and 17-JA-30)

          MEMORANDUM DECISION

         Petitioner maternal grandmother C.E., by counsel Joseph Munoz, appeals the Circuit Court of Calhoun County's October 26, 2018, order denying her motion to intervene and motion for custody of the children.[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"), Tony Morgan, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying her a meaningful opportunity to be heard and in failing to rule on her request for visitation with the children.

         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 July of 2017, the DHHR filed an abuse and neglect petition against the parents. The children were removed from the parents' home and placed in a foster home. The DHHR conducted a home study on petitioner's home and the home study was approved in February of 2018. However, following the conclusion of the initial home study, the DHHR learned that petitioner had prior substantiations of child neglect in Ohio. As a result, the DHHR rescinded its prior approval of petitioner's home study. In May of 2018, petitioner filed a motion to intervene in the abuse and neglect proceeding and a motion for custody of the children. On July 12, 2018, the circuit court held a hearing to address petitioner's motion and granted her the right to intervene on a preliminary basis. On July 24, 2018, the parents voluntarily relinquished their parental rights to the children and the circuit court heard further evidence regarding petitioner's motion. According to the record, petitioner presented evidence during the July 12, 2018, hearing and concluded her portion of the case. [2] At a July 24, 2018, evidentiary hearing, the following exchange occurred:

[Petitioner's counsel: Petitioner's] going to be testifying to all of my grounds for custody. She was cross-examined, at the first hearing, by the State. I can put her back up there to, essentially, say the same things, Judge. I mean I have put on evidence, I have carried my burden, and I think, initially, to show that my client was a custodian or guardian of these grandchildren for a large part of their life. I think I have carried the burden; we wouldn't be sitting in this room right now talking about moving forward after relinquishment. Do you see where I'm coming from? . . .
[Guardian]: Well, I guess then they're standing on the evidence, so they rested their case, and now the Department can put on theirs.
[Petitioner's counsel]: I think that's a fair assessment, yes.

         Also during that hearing, the DHHR presented the testimony of two DHHR employees regarding petitioner's home study and the reasons for its subsequent denial. The first DHHR employee, Sarah Bleigh, testified that petitioner had two prior child neglect substantiations in 1989 and 1990 in Ohio. Ms. Bleigh further testified that those substantiations were based upon "basic neglect of childcare needs, medical needs, and some alcohol use that resulted in improper care of the children." Ms. Bleigh explained that the DHHR was unable to approve petitioner's home study due to the substantiations. She also expressed concern that petitioner had physical custody of her grandchildren, the children at issue in the instant matter, for periods of time before the abuse and neglect petition was filed but failed to seek proper medical care for the children's various medical issues, including a bowel condition, dental problems, and a cleft palate. The DHHR's second witness corroborated Ms. Bleigh's testimony, and the hearing was continued due to time restrictions.

         On July 27, 2018, petitioner filed a grievance with the DHHR Board of Review regarding the denial of her home study. On September 27, 2018, the Board of Review held a hearing on petitioner's grievance. During the hearing, petitioner was represented by the same attorney who represented her in the abuse and neglect proceedings and was afforded the opportunity to present evidence and cross-examine the DHHR's witnesses. On October 10, 2018, the Board of Review upheld the DHHR's denial of petitioner's home study, finding that the DHHR was required to deny petitioner's home study upon learning of her substantiated child neglect history, despite the prior approval of her home study. On October 11, 2018, the circuit court reconvened its hearing regarding petitioner's motion to intervene and motion for custody of the children. The circuit court advised the parties that it received the Board of Review's administrative decision and order upholding the DHHR's denial of petitioner's home study. The circuit court declined to hear further evidence in the matter and denied petitioner's motion to intervene and motion for custody of the children finding that petitioner "does not meet the criteria to have the children placed with her." Petitioner appeals from the circuit court's October 26, 2018, order.[3]

         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, this Court finds no error in the proceedings below.

         First, petitioner argues that she was denied a meaningful opportunity to be heard on her motion to intervene and motion for custody of the children pursuant to West Virginia Code § 49-4-601(h), which provides that

[i]n any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. Foster parents, preadoptive parents, ...

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