STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

February 11, 2013 In Re: S.H., E.H., and C.H. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

No. 12-1054 OF WEST VIRGINIA
 (Mineral County 12-JA-13, 14, and 15) 

MEMORANDUM DECISION 

Petitioner Aunt’s appeal, by counsel Agnieszka Collins, arises from the Circuit Court of 

Mineral County, wherein she was dismissed as intervenor by order entered on July 25, 2012. The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel William L. 

Bands, has filed its response. The guardian ad litem, Kelley A. Kuhn, has filed a response on 

behalf of the children. 

This Court has considered the parties’ briefs and the appendix 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. 

The parental rights of the biological father of S.H., E.H., and C.H. were relinquished 

voluntarily. The biological father is the brother of both Petitioner Aunt and the adoptive mother. 

In August of 2008, the adoptive mother had a stroke and was unable to care for the children. On 

March 17, 2012, the adoptive father, J.H., attempted to discipline C.H. in a way that caused 

bruises. J.H. became distraught after the children ran from his home to Petitioner Aunt’s home a 

few doors down, and reported that he attempted suicide. The police, emergency personnel, and 

DHHR staff came to both homes and told Petitioner Aunt to care for the children that night. 

However, Petitioner Aunt permitted the children to stay with J.H. that night, despite directions 

from the DHHR that J.H. had, that same day, beaten C.H. and reportedly attempted suicide. 

The DHHR filed a petition for abuse and neglect against the adoptive parents. The 

children were placed into foster care. On May 7, 2012, Petitioner Aunt petitioned the court below 

to join the action as an intervenor and to be the temporary placement for the children. Petitioner 

Aunt was permitted to intervene but was denied temporary placement upon the objections of the 

guardian ad litem and a status hearing was held in which the DHHR reported that Petitioner Aunt 

stated that she did not believe that the children’s biological father was dangerous, despite the fact 

that he was ordered by the Circuit Court of Taylor County to have no contact with these children. 

Petitioner Aunt also failed a home study ordered by the DHHR. Upon evaluating the DHHR 

report, as well as having evaluated petitioner’s attitude and credibility in person, the circuit court 

found that she was no longer a placement option and dismissed her from the case. 

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On appeal, petitioner argues she was entitled to a hearing by West Virginia Code section 

49-6-2(c), which guarantees a hearing for “parties having custodial or other parental rights or 

responsibilities to the child . . ., including the right to testify and to present and cross-examine 

witnesses.” The guardian responds that West Virginia Code § 49-6-2(c) does not apply to 

petitioner because she is not a party with custodial or other parental rights or responsibilities to 

the children. The guardian states that the circuit court was not clearly wrong to based its decision 

on testimony by petitioner that she does not believe that the children should be kept from the 

children’s father. The guardian stated that the circuit court was “unimpressed” with petitioner’s 

testimony regarding allegations that she failed to keep the children safe. 

Upon a review of the record, this Court finds no merit in petitioner’s argument. Petitioner 

has presented no evidence that she has any custodial or parental rights or responsibilities. Thus, 

petitioner is not entitled to a hearing pursuant to West Virginia Code § 49-6-2(c). 

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

dismissal of petitioner as intervener is hereby affirmed. 

Affirmed. 

ISSUED: February 11, 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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