STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: S.D., R.D., & L.D. FILED 

January 17, 2014 

RORY L. PERRY II, CLERK No. 13-0646 (Raleigh County 10-JA-14-K, 16-K, & 17-K) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioners, the grandparents of S.D., R.D., and L.D., by counsel Carl W. Roop, appeal 

the Circuit Court of Raleigh County’s order entered on May 29, 2013, denying placement of 

their grandchildren, S.D., R.D., and L.D., into their home in Kentucky. The West Virginia 

Department of Health and Human Resources (“DHHR”), by Angela Alexander Walters, its 

attorney, filed its response. The guardian ad litem, Anthony Sparacino Jr., filed a response on 

behalf of the children in support of the circuit court’s order. On appeal, petitioners argue that the 

circuit court erred in refusing to place the children in their home. 

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. 

The DHHR filed the underlying abuse and neglect petition in March of 2010 based upon 

allegations of drug addiction, domestic violence, unsanitary living conditions, and medical 

neglect of the children by their parents. Around the time the petition was filed, child L.D. was 

placed into petitioners’ custody. In June of 2010, both parents stipulated to being addicted to 

controlled substances, resulting in the neglect of the infant children, and received a postadjudicatory improvement period that began immediately. The parents relocated to Parkersburg, 

West Virginia, in order to attend a long-term in-patient drug rehabilitation program. Based on the 

DHHR’s finding, by March of 2011, all three of the children were living with their mother in 

Parkersburg. 

On April 28, 2011, however, the children’s parents violated the rules of their treatment 

facility and were removed from the program. Two days later, employees of the treatment 

program went to the parents’ home and found the children’s mother apparently under the 

influence of drugs; the children were naked and stated they were cold. On May 1, 2011, Child 

Protective Services (“CPS”) received a call alleging the mother was under the influence of drugs 

and had been arrested for being on the street nearly naked, yelling that her baby was the devil 

and threatening to kill her husband and children. All three of the children were present during the 

incident and were observed by CPS workers to be unclean. According to testimony by a DHHR 

worker, petitioners refused to pick up the children when they were asked to care for the children 

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in their home. In May of 2011, the DHHR filed an amended petition for abuse and neglect, 

including the aforementioned occurrences from April and May of 2011. L.D. was reinstated in 

the proceedings in May of 2011, due to petitioners’ refusal to care for him on May 1, 2011, when 

they were called. In July of 2011, pursuant to an Interstate Compact Placement Request made by 

the DHHR, the Cabinet for Health and Family Services of the Commonwealth of Kentucky 

(“CHFS”) performed a home study at petitioners’ home. Based upon the study, the CHFS found 

that petitioners failed the home study due to documented health concerns. 

In September of 2011, the circuit court refused to extend the parents’ improvement 

periods, but the case was continued several times between September of 2011 and October of 

2012, while considering whether petitioners were a placement possibility. In November of 2011, 

a DHHR employee testified that L.D. was in the home of the parents earlier in the year because, 

according to the children’s mother, petitioners were unable to care for L.D. At a placement 

hearing in April of 2012, petitioners argued for the placement of all three children at their home, 

which the DHHR stated could occur if the proper Kentucky agency found their home to be 

appropriate. The circuit court told petitioners that if they had a second home study done, it would 

be considered. Petitioners hired a private agency who found the home to be acceptable after 

conducting a second home study. 

On May 29, 2013, the circuit court entered an order terminating the children’s parents’ 

parental rights.1 Additionally, the circuit court found that placing the children with petitioners 

was not in the best interest of the children. In support of this finding, the circuit court found that 

Petitioner Grandmother called R.D. an inappropriate name during a supervised visit for throwing 

away a snack she had given R.D., which led the DHHR to forbid petitioners to visit the 

grandchildren; that petitioners were not in good health, which led to their inability to care for the 

L.D. in the past; and that placing the children with petitioners would be akin to placing them 

with the children’s parents who were living near petitioners at that time. It is from this order that 

petitioners appeal. 

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 

1 The children’s mother appealed the termination of her parental rights in Case No. 13-0665 and 

their father appealed the termination of his parental rights in Case No. 13-0606. Each termination 

was affirmed. 

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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). 

Petitioners argue that the circuit court erred in denying placement of the subject children 

in their home. Petitioners contend that there is a preference for placement of children in abuse 

and neglect cases with family members and that it would be better for the children to be placed 

together instead of in separate foster homes, as they were at the time of disposition. In the 

alternative, petitioners argue that they are entitled to guardianship due to an order entered in 

Kentucky, which petitioners argue is still enforceable. Finally, petitioners argue that the circuit 

court erred by failing to appoint a guardian ad litem for an emergency hearing and that it did not 

follow deadlines described in the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings. 

Upon our review of the record, we find no error by the circuit court with regard to 

denying petitioners’ request for child placement. 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 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 Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).” Syl. 

Pt. 4, In re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296. The record contains ample 

documentation to show that the circuit court correctly found that placing the children with 

petitioners was not in the best interest of the children. Specifically, petitioners failed a home 

study, Petitioner Grandmother acted inappropriately toward one of the children during 

supervised visitation, and petitioners have a history of health issues interfering with their ability 

to provide care for the children. 

As to the prior guardianship order relating to L.D., petitioners provide no evidence that 

the same is still valid and enforceable. This Court also finds that a guardian was appointed for 

L.D. in May of 2011. From our review of the record, the guardian adequately performed his 

duties and L.D. is flourishing in a foster home with a permanency plan of adoption. As to the 

alleged violations of the West Virginia Rules of Child Abuse and Neglect Proceedings, we find 

that any failure to strictly comply with the deadlines laid out therein does not warrant reversal. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: January 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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