In re J.B. and B.B.

FILED

September 20, 2022

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re J.B. and B.B.

No. 22-0216 (Lewis County 20-JA-49 and 20-JA-50)

MEMORANDUM DECISION

Self-represented grandparents and petitioners, H.G. and C.G., appeal the Circuit Court of

Lewis County’s February 22, 2022, order denying them permanent placement of J.B. and B.B. 1

The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick

Morrisey and Lee A. Niezgoda, and the guardian ad litem (“guardian”), Jamella L. Lockwood,

filed a joint response in support of the circuit court’s order. Petitioners filed a reply.

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.

Petitioners are the maternal grandparents of J.B. and B.B., who were the subjects of an

August of 2020 abuse and neglect petition involving their parents. In January of 2022, the circuit

court held a permanency hearing regarding petitioners’ motion for permanent placement of the

children. The court heard testimony from four DHHR workers and the children’s therapist.

Petitioners were permitted the opportunity to cross-examine those witnesses and present

evidence, including their own testimony. Based on that evidence, the court denied petitioners’

motion for placement of the children. It found that in August of 2020, then-five-year-old J.B.

and one-year-old B.B. were placed with petitioners pending a home study of their home. Shortly

after their placement in petitioners’ home, a DHHR worker discussed with petitioners the

potential issues with the condition of their home, such as excessive clutter and uncleanliness.

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).

1

In February of 2021, a representative from the DHHR’s home finding unit visited the

home and found issues that were previously addressed (clutter and uncleanliness) had not been

remedied. She advised petitioners that they needed to rectify these problems. When she returned

in April of 2021, she found only slight improvement with petitioners’ home. Further, the

representative observed multiple animals in the home, including skunks, chickens, rabbits, dogs,

and cats. During the April visit, photographs were taken of petitioners’ home, and based on those

photographs, the circuit court found that petitioners’ home was in deplorable condition and unfit

for minor children. As the circuit court further found, petitioners “officially failed their first

home study” in May of 2021.

Later in May of 2021, the children were returned to the parents’ care while they

completed the remainder of their improvement period. Unfortunately, the parents failed to fully

comply, so the children were removed from their parents’ care and placed in foster care in July

of 2021. Petitioners requested a second home study in September of 2021. On November 1,

2021, an addendum to petitioners’ original home study was entered, indicating that petitioners

had resolved the issues and that the home was suitable for the children. The DHHR continued the

children’s foster care placement. Later in November of 2021, the guardian made an unannounced

visit to petitioners’ home and obtained photographs of its state, which showed the home had

returned to an unsuitable state. Upon its review of the photographs, the court found that the home

was excessively cluttered, with “items stacked to the ceiling in several locations” and clutter

blocking doors and windows. The court also observed that the bathroom and kitchen of the home

were filthy. The court concluded that the home was not fit and suitable for children. Soon after,

in January of 2022, a second representative from the DHHR home finding unit made an

unannounced home visit to petitioners’ home and found that it remained in an unsuitable

condition. She prepared a “corrective action plan,” detailing eleven required changes in the

home. Notably, petitioner C.G. admitted during the permanency hearing in January of 2022 that

her home was not appropriate when the children were placed there.

In addition to the condition of the home, witnesses testified that it would not be in the

children’s best interests to live with petitioners. J.B.’s therapist testified that J.B. did not wish to

live with petitioners and that J.B. was having “repeated accidents” after visiting with them.

Ultimately, the circuit court found that petitioners continued to demonstrate that they

were unable to maintain a clean, sanitary, fit and proper residence for children. It further found

that it was not in the children’s best interests to be placed with petitioners. Accordingly, the court

denied their motion to intervene and for permanent placement of J.B. and B.B. by its February

22, 2022, order. Petitioners now appeals. 2

The Court has previously established the following standard of review:

2

The parents’ parental rights were terminated in October of 2021. According to the

parties, the permanency plan for the children is adoption in their current placement.

2

“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).

On appeal, petitioners argue that the circuit court erred in denying their motion for

permanent placement of the children. They dispute many, if not all, of the circuit court’s factual

findings as misleading or inconsistent with the testimony presented at the permanency hearing.

Petitioners take particular issue with the DHHR’s failure to place the children with them

following the children’s removal from the parents in July of 2021. Upon review of the record in

its entirety, we find petitioners are entitled to no relief on appeal.

West Virginia Code § 49-4-113(a)(3) (also known as “the grandparent preference”

statute) requires the DHHR to “first consider the suitability and willingness of any known

grandparent or grandparents” when seeking any placement of a child for adoption. The statute

requires the DHHR to conduct a home study evaluation of the grandparents and their home, and

if it 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.” Id. This Court has recognized

that “the Legislature has implicitly included [in West Virginia Code § 49-1-114(a)(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.” Syl. Pt. 3, in part, In re K.E., 240 W. Va. 220, 809 S.E.2d

531 (2018) (citation omitted). In other words, “[t]he [grandparent] preference is just that—a

preference. It is not absolute. As this Court has emphasized, the child’s best interest remains

paramount.” Id. at 225, 809 S.E.2d at 536.

Contrary to petitioners’ argument on appeal, the record provided supports the circuit

court’s findings of fact and conclusions of law. 3 The circuit court detailed petitioners’ failure to

maintain a suitable home for the children during their placement in the home and thereafter.

Despite multiple parties notifying petitioners that the condition of their home was a barrier to

3

Notably, the transcript of the circuit court’s permanency hearing was not included in the

record by any party.

3

permanent placement, they chose not to remedy those conditions. Even as recently as January of

2022, with petitioners’ motion for permanent placement of the children pending and clear

direction from the DHHR, the circuit court found that their home continued to be inappropriate

for the children. Further, the circuit court heard evidence that J.B. did not wish to live with

petitioners and had repeated toileting accidents following his visitation with them. Based on this

evidence, we find no error in the circuit court concluding that it was not in the children’s best

interest to be placed with petitioners and in denying their motion for permanent placement.

Moreover, the record confirms that petitioners failed their home study in May of 2021, which

was not amended as passing until November of 2021. As such, to the extent petitioners argue that

the DHHR failed to place the children with them when the children were removed a second time

from the parents in July of 2021, it is clear that the DHHR had recently determined that

petitioners’ home failed the home study, so they did not qualify for placement. Accordingly,

petitioners are entitled to no relief on appeal.

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

February 22, 2022, order is hereby affirmed.

Affirmed.

ISSUED: September 20, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

4