In re A.B. and B.B.-1

FILED

June 22, 2021

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.B. and B.B.-1

No. 20-0647 (Kanawha County 19-JA-236 and 19-JA-237)

MEMORANDUM DECISION

Petitioner Grandmother B.B.-2, by counsel Brendan Wood, appeals the Circuit Court of

Kanawha County’s August 10, 2020, 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 Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The

guardian ad litem (“guardian”), J. Rudy Martin, filed a response on behalf of the children in support

of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit

court erred in (1) denying her motion to intervene, (2) denying her a meaningful opportunity to be

heard on that motion, (3) discriminating against her by refusing to consider her for placement of

the children based upon her legal use of a prescribed medication, and (4) failing to offer her

services that were provided to other parties.

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 April of 2019, the DHHR filed a child abuse and neglect petition involving seven

children and several sets of parents and guardians. Two of the children named in the petition were

A.B. and B.B.-1, as were their biological parents. Petitioner, the paternal grandmother of A.B. and

B.B.-1, was not a party to the case. At the preliminary hearing, a Child Protective Services (“CPS”)

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, because one of the children and petitioner share the

same initials, they will be referred to as B.B.-1 and B.B.-2, respectively, throughout the

memorandum decision.

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caseworker testified that the children’s various grandmothers cared for the children. Petitioner

moved to intervene and, based upon evidence presented at the preliminary hearing, the circuit court

ordered the DHHR to amend the petition and to add petitioner as a named party. Later that month,

the DHHR filed a second amended petition naming petitioner as a party and alleging that she was

using Subutex for her opiate addiction and was an alcoholic. The DHHR noted that petitioner did

not seek treatment in West Virginia but traveled to Washington, D.C., on a monthly basis to obtain

her Subutex prescription. The DHHR alleged that petitioner failed to participate in any therapy or

classes to combat her addiction.

In May of 2019, the circuit court held a preliminary hearing on the second amended petition

wherein counsel for petitioner advised the circuit court that petitioner never had custody of the

children and lacked standing in the matter. Upon further inquiry, the circuit court found no basis

to keep petitioner as a party in the matter and dismissed her from the proceedings. Following this

hearing, the circuit court terminated the mother’s parental rights in July of 2019 and later

terminated the father’s parental rights as well.

Petitioner filed a second motion to intervene and requested custody of the children in

February of 2020. In support of her motion, petitioner stated that she is the grandmother of the

children; that she was previously a party to the matter but was dismissed because she did not have

custody of the children at the time the petition was filed; that prior to filing her motion, she played

a significant role in the care, custody, and upbringing of the children and had a substantial history

of supporting the children by purchasing food, clothing, diapers and medications; she moved into

the children’s parents’ home in order to assist in raising the children; she had a close and loving

relationship with the children, especially the elder one, and the children were familiar and

comfortable with her; that the parental rights of the children’s parents had been terminated; that

she had repeatedly requested that the DHHR place the children with her and begin the process

through which she might adopt the children; that the DHHR refused to honor her requests and

failed to present evidence that she should be precluded as a custodial grandparent or adoptive

parent; that she was fully capable of caring for and supporting the children and had no prior history

that would preclude her from being considered as a proper and safe placement; and she sought to

establish a safe and normal environment for the children that was not disruptive to their lives and

that offered continuity and familiarity.

In April of 2020, the circuit court held a placement review hearing. At the hearing, the

circuit court considered petitioner’s request for visitation with, and custody of, the children. At the

hearing, a DHHR worker testified that A.B. and B.B.-1 were placed in a specialized foster home

in November of 2019, where they remained. The DHHR worker also testified that the adoption of

the children was placed on hold pending petitioner’s second motion to intervene. The DHHR

worker testified that the DHHR objected to petitioner’s motion to intervene because petitioner was

previously named as a party in the proceedings, had allegations of abuse and neglect against her,

and then moved to be removed from the proceedings before she could face adjudication. The

DHHR worker testified that petitioner was then not considered for placement of the children

because she relinquished her rights to the children when she was dismissed from the proceedings.

Finally, the DHHR worker testified that the children were placed with a foster family in another

county because various family members were showing up at the children’s school to visit with the

children, despite a no contact order. The guardian also joined the DHHR in objecting to petitioner’s

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motion to intervene. After the hearing, the circuit court ordered that the children remain in their

foster placement. The court further ordered that petitioner not be allowed any visitation with the

children until a hearing was held on her pending second motion to intervene.

The circuit court held a hearing on petitioner’s second motion to intervene in August of

2020. The DHHR and the guardian renewed their objection to petitioner’s motion to intervene. A

DHHR caseworker testified and recounted the allegations in the amended petition against

petitioner. Although petitioner was never adjudicated because she moved to withdraw from the

proceedings, the caseworker testified that petitioner was intoxicated when she was served with the

second amended petition, and that petitioner admitted to a DHHR investigator that she was using

Subutex and had an alcohol addiction. The caseworker also raised concerns that petitioner was a

close friend of the children’s other family members who were subject to a no contact order issued

by the circuit court. Specifically, the caseworker testified that petitioner allowed the children’s

father into her home. Additionally, the caseworker testified that the DHHR had been investigating

the family for various abuse and neglect allegations since 2008. The caseworker testified that

petitioner had previously attended other family members’ abuse and neglect hearings as well,

including family members who were now subject to a no contact order. As a result, the DHHR

noted its fears that petitioner would not honor the no contact order if she had custody of the

children. Finally, the DHHR argued that it would not be in the children’s best interest to place

them with petitioner, as they were experiencing stability in their current placement. Petitioner

testified to many of the allegations made in her written motion to intervene, including that she

cared for and raised the children prior to the proceedings and wished to adopt them. Petitioner also

presented her sponsor from her recovery program who testified on her behalf. However, the circuit

court determined that her sponsor was not a counselor, lacked first-hand knowledge of petitioner’s

circumstances, and that her testimony was “not useful or helpful.”

Ultimately, the circuit court denied petitioner’s motion to intervene based upon its finding

that petitioner’s testimony was inconsistent with her prior claim that she never had custody of the

children and lacked standing in the matter. The circuit court also found that she slept on her rights

following her dismissal from the proceedings, that it was not in the children’s best interests to

delay permanency, and that any such delay would not be reasonable, fair, or appropriate for the

children. The circuit court denied petitioner’s motion to intervene and her request for placement

of the children in her home in its August 10, 2020, order. 2 Petitioner appeals this order denying

her motion to intervene.

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

2

According to respondents, the permanency plan for the children is adoption in their foster

home.

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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 denying her motion to intervene.

In support, petitioner contends that she is the grandmother of the children and, as such, was entitled

to preferred placement of the children. Petitioner further argues that the DHHR failed to perform

its statutory duty to determine the appropriateness of placing the children with her. Specifically,

petitioner asserts that, pursuant to West Virginia Code § 49-4-114, the DHHR was required to

perform a home study. Based on these assertions, petitioner claims that she should have been

permitted to intervene. We do not find petitioner’s arguments to be persuasive.

On this issue, we have previously held that

[w]hile the grandparent preference statute 3 . . . places a mandatory duty on

the West Virginia Department of Health and Human Resources to complete a home

study before a child may be placed for adoption with an interested grandparent, “the

department shall first consider the [grandparent’s] suitability and willingness . . . to

adopt the child.” There is no statutory requirement that a home study be completed

in the event that the interested grandparent is found to be an unsuitable adoptive

placement and that placement with such grandparent is not in the best interests of

the child.

Syl. Pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015) (footnote added). In discussing the

grandparent preference, set forth above, this Court has noted that “[t]he preference is just that—a

preference. It is not absolute . . . the child’s best interest remains paramount.” In re K.E., 240 W.

Va. 220, 225, 809 S.E.2d 531, 536 (2018). Simply stated, “[t]he grandparent preference must be

considered in conjunction with our long standing jurisprudence that ‘the primary goal in cases

3

West Virginia Code § 49-4-114(a)(3), the grandparent preference statute, 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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involving abuse and neglect . . . must be the health and welfare of the children.’” In re Hunter H.,

227 W. Va. 699, 703, 715 S.E.2d 397, 401 (2011) (quoting syl. pt. 3, in part, In re Katie S., 198

W. Va. 79, 479 S.E.2d 589 (1996)).

Here, the record indicates that petitioner first moved to intervene in the proceedings in

April of 2019. As a result of testimony indicating that petitioner had custody of or cared for the

children, the DHHR filed an amended petition against petitioner, naming her as a party and lodging

allegations of abuse and neglect against her. Specifically, the DHHR alleged that petitioner was

abusing alcohol and was using Suboxone. However, the next month, petitioner moved to be

dismissed from the proceedings, saying she never had custody of the children and did not have

standing in the matter. As a result of her dismissal from the proceedings, petitioner was never

adjudicated on the allegations of abuse and neglect, including her alcohol abuse. However,

evidence was later introduced that indicated petitioner was intoxicated when she was served with

the amended abuse and neglect petition. Several more months passed before petitioner—after

asking to be removed from the proceedings on the ground that she never had custody of the

children—filed a second motion to intervene in the proceedings. By that time, both children had

been in foster care for nearly a year and had bonded with their foster parents. After petitioner filed

her second motion to intervene, the DHHR alleged at multiple hearings that petitioner often

allowed the children’s parents, drug abusers whose parental rights were terminated, to visit the

children in her home while the parents were intoxicated. The circuit court ultimately denied

petitioner’s second motion to intervene, finding that her statements in that motion were

inconsistent with her prior testimony that she never had custody of the children. On appeal, we

decline to disturb the court’s credibility determination with regard to this testimony. See Michael

D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). The circuit court also found that allowing petitioner to intervene could delay the

proceedings and that such a delay was not reasonable, fair, or appropriate for the children.

Further, petitioner’s argument regarding the DHHR’s failure to conduct a home study is

unavailing given that the DHHR considered placement of the children with petitioner but found

her home to be unsuitable. As noted above, the DHHR is absolved of its statutory duty to perform

a home study if it finds the grandparent is unfit and placement in the home is not in the child’s best

interests. In re L.M., 235 W. Va. at 438, 774 S.E.2d at 520, syl. pt. 10, in part. Here, the evidence

established both of these factors, making a home study unnecessary. Petitioner’s argument also

ignores the fact that the DHHR introduced evidence of her alcoholism, including her admission to

a DHHR investigator upon being served with the amended petition that she suffered from

alcoholism. Simply put, petitioner’s substance abuse rendered her unfit to parent the children. This

fact is apparent from the record despite petitioner having purposely avoided adjudication upon this

condition by obtaining dismissal from the proceedings before later attempting to intervene once

adjudication had closed. Further, given that several of the children’s family members who were

subject to no contact orders with the children attempted to visit them at school, coupled with the

evidence of petitioner’s continued exposure of the children to their father, it is clear that the

DHHR’s concerns that the children would continue to be exposed to these individuals while in

petitioner’s care were valid. Also, due to the conflicts within petitioner’s family and the domestic

violence between the children’s parents, the DHHR did not believe that petitioner would be able

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to protect the children. As such, it is clear that petitioner’s home clearly was not suitable for the

children, and, therefore, the circuit court did not abuse its discretion by not ordering the DHHR to

conduct a home study.

Contrary to her assertions on appeal, petitioner’s involvement in the proceedings was

governed by West Virginia Code § 49-4-601(h), which establishes a “two-tiered framework” of

the parties who enjoy the procedural due process right of a meaningful opportunity to be heard.

State ex rel. H.S. v. Beane, 240 W. Va. 643, 647, 814 S.E.2d 660, 664 (2018). Specifically, parties

having “custodial or other parental rights or responsibilities” are entitled to both “a meaningful

opportunity to be heard” and “the opportunity to testify and to present and cross-examine

witnesses.” W. Va. Code § 49-4-601(h). Further, we have explained that “[a] person ‘who obtains

physical custody after the initiation of abuse and neglect proceedings—such as a foster parent—

does not enjoy the same statutory right of participation as is extended to parents and pre-petition

custodians.’” Beane, 240 W. Va. at 648, 814 S.E.2d at 665 (quoting State ex rel. R.H. v. Bloom,

No. 17-0002, 2017 WL 1788946 at *3 (W. Va. May 5, 2017)(memorandum decision)) (emphasis

added). These individuals—foster parents, pre-adoptive parents, and relative caregivers—are

entitled to a meaningful opportunity to be heard only and are not entitled to an opportunity to

testify and to present and cross-examine witnesses. W. Va. Code § 49-4-601(h).

Notably, petitioner cannot be classified as any of those individuals listed above who are

entitled to participation rights in a child abuse and neglect case. Here, petitioner unequivocally

claimed that she never had custody of the children when she sought dismissal from the proceedings

in support of her first motion to intervene. Therefore, it is disingenuous on appeal, as it was below,

for petitioner to argue in support of her second motion to intervene that she did exercise custody

over the children. 4 More importantly, petitioner suffered no prejudice because the circuit court

carefully considered her motions to intervene in the proceedings and conducted multiple

evidentiary hearings regarding the children’s placement and permanency. Further, the circuit court

conducted a hearing on petitioner’s second motion to intervene, where she presented witnesses

and testimony. Petitioner does not contest the fact that she was given notice of the hearings and

the opportunity to be heard and to present testimony at these hearings. Further, by providing

petitioner with a meaningful opportunity to be heard, the circuit court complied with West Virginia

Code § 49-4-601(h) and our holding in Beane, despite the fact that petitioner did not qualify as

4

On appeal, petitioner makes a passing reference to being considered as a “relative

caregiver” entitling her to procedural due process under West Virginia Code § 49-4-601(h).

However, petitioner fails to cite to West Virginia Code § 49-1-204, the statute that defines this

term, or to otherwise apply that definition to the facts of her case. More importantly, petitioner did

not raise this issue below. To the contrary, in support of her request to be dismissed from the

proceedings, petitioner affirmatively declared that she lacked standing to be named in the petition,

thereby waiving this issue on appeal. Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818,

821, 679 S.E.2d 650, 653 (2009) (“‘Our general rule is that nonjurisdictional questions . . . raised

for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206

W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).”). Accordingly, because petitioner failed

to raise these arguments below, we will not consider her claim that she was a relative caregiver on

appeal.

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someone who had custodial or other parental rights to the children. Therefore, the circuit court did

not err in denying petitioner placement of the children on this ground.

Further, petitioner argues that the circuit court erred in discriminating against her by

refusing to consider her for placement of the children based upon her legal use of a prescribed

medication. Specifically, petitioner contends that the circuit court erroneously discriminated

against her in violation of West Virginia Code § 49-4-604(f), which provides that a circuit court

may not terminate the parental rights of a parent on the sole basis that the parent is

participating in a medication-assisted treatment program, as regulated in § 16-5Y-

1 et seq., for substance use disorder, as long as the parent is successfully fulfilling

his or her treatment obligations in the medication-assisted treatment program.

Petitioner argues that the circuit court erroneously relied upon her Subutex use as a reason to “find

her incapable of being an appropriate grandparent.” Having reviewed the record, we find that

petitioner is entitled to no relief.

At the outset, we note that the circuit court did not violate West Virginia Code § 49-4-

604(f) which, as noted above, provides that a circuit court may not terminate a parent’s parental

rights “on the sole basis that the parent is participating in a medication-assisted treatment

program.” Here, the circuit court did not deny petitioner’s motion to intervene or her request for

placement of the children in her home on the sole basis that she was participating in a Subutex

program. Rather, the court found that petitioner’s testimony in support of her second motion to

intervene was inconsistent with her previous testimony that she never exercised custody of the

children when she first moved the court to be dismissed from the matter. Further, the record shows

that several other issues, such as concerns over petitioner’s ongoing association with individuals

who committed domestic violence or whose parental rights were previously terminated, and

petitioner’s alcoholism jeopardized the children’s safety in her care and precluded her from being

awarded custody. As such, it is clear that the circuit court had an acceptable basis upon which to

find that placement of the children in petitioner’s care was contrary to their best interests. We

decline to disturb that finding on appeal. With that said, we remind the circuit courts of our

previous holdings that “[t]his Court expressly disapproves of any bias against medication-assisted

treatment for substance abuse.” In re: D.J. and L.J., No. 19-0388, 2020 WL 3259627 (June 16,

2020)(memorandum decision). Further, “the use of medication-assisted treatment is authorized by

the Medication-Assisted Treatment Program Licensing Act, West Virginia Code §§ 16-5Y-1 to

16-5Y-13, and the Act’s supporting regulations.” While, “[m]edication-assisted treatment will not

be appropriate or beneficial for all persons suffering from opioid use disorder, “when medication-

assisted treatment is appropriate and potentially beneficial, any bias against its use is contrary to

the public policy of this State as announced by the Legislature.” In re M.M., H.M., and W.M., --

W. Va. --, 853 S.E.2d 556 (2020).

Finally, petitioner argues that the circuit court erred in failing to provide her “the same

services it is legally obligated to provide to any grandparent who requests visitation, custody or

consideration for adoption.” Petitioner compares her provision of services with the children’s

maternal grandmother, who she argues was given months to “produce drug screens and comply

with court directives.” By contrast, petitioner argues that she was not offered any services and that

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the circuit court discriminated against her because she is in recovery for a substance abuse disorder.

Upon our review, we find no error.

At the outset, we note that petitioner cites to no authority to support her assertion that the

circuit court was obligated to provide her services of any kind. On the contrary, according to West

Virginia Code §§ 49-4-601(d) and 604(c)(6)(C)(iii) and (iv), the DHHR is required to make

reasonable efforts to prevent the child’s removal from the home, return the child to the home, or

otherwise remedy circumstances that are detrimental to the child. None of these situations are

applicable to petitioner. Further, if petitioner had remained in the proceedings as a named

respondent, West Virginia Code § 49-4-610(2)(B) would have allowed the circuit court to grant

services to her through various means, such as a post-adjudicatory improvement period, if she had

“demonstrate[d], by clear and convincing evidence, that [she was] likely to fully participate in the

improvement period.” However, petitioner foreclosed the possibility of an improvement period,

and the provision of services, through her affirmative decision to move for dismissal from the

proceedings on the ground that she never had custody of the children.

Although the circuit court ultimately found that petitioner was unlikely to fully participate

in the provision of services, the fact remains that this finding was unnecessary because neither the

DHHR nor the circuit court were under any obligation to provide services to petitioner. As such,

petitioner’s argument that the DHHR failed to offer to help her with her substance abuse problem

is without merit. Further, even if petitioner had been entitled to some services, the circuit court

found that petitioner was unlikely to fully participate, in large part, because she asked to be

dismissed from the proceedings. While petitioner later moved to intervene in the proceedings a

second time, the circuit court found her arguments to be inconsistent with those she proffered to

the court only months prior. As a result, we find that the circuit court did not err in failing to offer

petitioner services to remedy the conditions of abuse and neglect.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

August 10, 2020, order is hereby affirmed.

Affirmed.

ISSUED: June 22, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

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