STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: M.W. FILED 

May 24, 2013 

No. 13-0041 (Berkeley County 11-JA-103) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Grandmother, by counsel R. Steven Redding, appeals the Circuit Court of 

Berkeley County’s permanent placement order entered on December 11, 2012. The guardian ad 

litem, Stephanie Scales-Sherrin, filed her response on behalf of the child. The West Virginia 

Department of Health and Human Resources (“DHHR”), by Melinda Dugas, its attorney, has 

filed its response. Foster Parents K.J. and W.J., by counsel J. Mark Sutton, have also responded. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

A petition for immediate custody of minor children in imminent danger with aggravated 

circumstances was filed after the DHHR received a referral on August 8, 2011, alleging that the 

biological mother abandoned her child by leaving him with Petitioner Grandmother. On August 

9, 2011, Petitioner Grandmother left the child with the DHHR and indicated that she was unable 

to care for him, that the biological mother was on parole in Maryland, and that the biological 

father had his parental rights terminated to two other children on July 31, 2006. Biological 

mother voluntarily relinquished her parental rights on September 6, 2011. The DHHR filed an 

amended petition to add an unknown father, which was followed by a second amended petition 

to remove the unknown father after the child’s birth certificate was produced naming the 

biological father. 

Following a permanency hearing, the circuit court found that Petitioner Grandmother was 

aware that the biological mother used drugs during her pregnancy, suspected that the biological 

mother used drugs in the presence of the child, permitted the biological mother to live with her 

despite knowing she was not allowed to live outside of Maryland due to being on probation, 

failed to contact biological mother’s probation officer concerning her drug use, left the child with 

the biological mother knowing she was using drugs before taking the child to the DHHR, and 

may have difficulty protecting the child if the biological mother returned. Based on these 

findings, the circuit court ordered that placement of the child shall remain with the foster parents. 

On appeal, petitioner argues the circuit court erred in denying her custody of the child. In 

support of this allegation, petitioner argues that she successfully completed a home study, 

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placement with her was in the child’s best interest, she would protect the child from his 

biological mother, and the circuit court should have granted her custody pursuant to the 

grandparent preference found in West Virginia Code § 49-3-1(a)(3). In response, the guardian ad 

litem supports the placement of the child with the foster parents. The guardian ad litem argues 

the DHHR supported placement with Petitioner Grandmother based strictly on its own policies. 

The guardian ad litem argues placement with the foster parents is in the best interest of the child 

based on Petitioner Grandmother’s relationship with the biological mother, and the amount of 

time and strong bond the child has developed with his foster parents. 

After initially supporting placement with Petitioner Grandmother, the DHHR now fully 

supports the circuit court’s placement order after reviewing the testimony and facts of the case. 

The DHHR argues that West Virginia Code § 49-3-1(a)(3) creates a rebuttable presumption that 

it is in the best interest for children to be placed with their grandparents. The DHHR argues it is 

in the child’s best interest to remain with the foster parents because Petitioner Grandmother 

failed to visit or contact the child on a regular basis, declined invitations to become more integral 

in the child’s life, and there is an ongoing concern about her ability to adequately protect the 

child based on Petitioner Grandmother’s history of failing to intervene in the biological mother’s 

illegal activities. 

Lastly, the foster parents argue that the best interests of a child are paramount, and that 

the preference for placement with grandparents is not absolute. The foster parents argue that in 

reaching its decision, the circuit court relied on Petitioner Grandmother’s failure to protect, the 

strong bond they have with the child while he has been in their care for over twenty months, and 

the finding that they are the child’s psychological parents. 

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). 

While it is true that the West Virginia Code creates a preference for abused and neglected 

children to be placed with grandparents, this Court has clarified that the preference is not 

absolute and does not require lower courts to place children with their grandparents in all 

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circumstances. In re Elizabeth F., 225 W.Va. 780, 786-87, 696 S.E.2d 296, 302-03 (2010). 

Providing further explanation, we have held that “an integral part of the implementation of the 

grandparent preference, as with all decisions concerning minor children, is the best interests of 

the child.” Id. In fact, once a lower court has properly determined that a child has been abused or 

neglected and that the natural parents are unfit, “the welfare of the infant is the polar star by 

which the discretion of the court is to be guided in making its award of legal custody.” Syl. Pt. 8, 

in part, In Re: The Matter Of Ronald Lee Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). Based 

upon this guidance, “adoption by a child’s grandparents is permitted only if such adoptive 

placement serves the child’s best interests. If, upon a thorough review of the entire record, the 

circuit court believes that a grandparental adoption is not in the subject child’s best interests, it is 

not obligated to prefer the grandparents over another, alternative placement that does serve the 

child’s best interests.” In re Elizabeth F., 225 W.Va. at 787, 696 S.E.2d at 303 (2010). 

Upon our review, the Court finds no error in the circuit court’s order placing the child 

with the foster parents. The circuit court properly considered the totality of the circumstances 

that Petitioner Grandmother knew that the biological mother used drugs during her pregnancy, 

used drugs after the birth of the child, would disappear with the child, permitted the biological 

mother to care for the child while she was using drugs, allowed the biological mother to live with 

her in violation of her probation, failed to contact the biological mother’s probation officer when 

she was using drugs and caring for the child, and the potential ability to protect the child from 

the biological mother. For these reasons, placement with Petitioner Grandmother is not in the 

child’s best interests, and, as such, the circuit court was not required to grant her custodial 

preference. 

This Court reminds the circuit court of its duty to establish permanency for the child. 

Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires: 

At least once every three months until permanent placement is achieved as 

defined in Rule 6, the court shall conduct a permanent placement review 

conference, requiring the multidisciplinary treatment team to attend and report as 

to progress and development in the case, for the purpose of reviewing the progress 

in the permanent placement of the child. 

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child 

within twelve months of the date of the disposition order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of 

Procedures for Child Abuse and Neglect Proceedings for permanent placement of 

an abused and neglected child following the final dispositional order must be 

strictly followed except in the most extraordinary circumstances which are fully 

substantiated in the record. 

Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated 

that 

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[i]n determining the appropriate permanent out-of-home placement of a child 

under W.Va.Code § 49-6-5(a)(6) [1996], the circuit court shall give priority to 

securing a suitable adoptive home for the child and shall consider other placement 

alternatives, including permanent foster care, only where the court finds that 

adoption would not provide custody, care, commitment, nurturing and discipline 

consistent with the child's best interests or where a suitable adoptive home can not 

be found. 

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem's role in abuse and neglect proceedings does not actually cease until such time as the 

child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 

S.E.2d 400 (1991). 

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

circuit court’s order is hereby affirmed. 

Affirmed. 

ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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