IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

No. 19-1089

IN RE: J.P.

_________________________________________________________

Appeal from the Circuit Court of Berkeley County

The Honorable Bridget M. Cohee, Judge

Civil Action No. 18-JA-89

REVERSED AND REMANDED 

_________________________________________________________

Submitted: May 20, 2020

Filed: June 15, 2020

Christian Riddell

Riddell Law Group

Martinsburg, West Virginia

Attorney for the Petitioners, Paternal 

Grandfather, C.P. and Maternal 

Grandmother, S.D.

Patrick Morrisey 

Attorney General

Lee Niezgoda 

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Respondent, 

West Virginia Department of Health 

and Human Resources

Elizabeth Layne Diehl 

Diehl Law PLLC

Martinsburg, West Virginia

Guardian Ad Litem for the 

Minor Child, J.P.

Stephanie E. Scales-Sherrin

Scales Law Office

Martinsburg, West Virginia

Attorney for the Respondents, 

Foster Parents, R.M. & A.M.

JUSTICE JENKINS delivered the Opinion of the Court.

FILED

June 15, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE HUTCHISON dissents and reserves the right to file a separate opinion. 

JUSTICE WORKMAN not participating. 
i

SYLLABUS BY THE COURT

1. “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.” Syllabus point 1, In Interest of Tiffany Marie S., 196 W. Va. 

223, 470 S.E.2d 177 (1996).

2. “West Virginia Code § 49-3-1(a) provides for grandparent preference 

in determining adoptive placement for a child where parental rights have been terminated 

and also incorporates a best interests analysis within that determination by including the 

requirement that the DHHR find that the grandparents would be suitable adoptive parents 

prior to granting custody to the grandparents. The statute contemplates that placement 

with grandparents is presumptively in the best interests of the child, and the preference for 

grandparent placement may be overcome only where the record reviewed in its entirety 
ii

establishes that such placement is not in the best interests of the child.” Syllabus point 4, 

Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).

3. “By specifying in West Virginia Code § 49-3-1(a)(3) that the home 

study must show that the grandparents ‘would be suitable adoptive parents,’ the

Legislature has implicitly included the requirement for an analysis by the Department of 

Health and Human Resources and circuit courts of the best interests of the child, given all

circumstances of the case.” Syllabus point 5, Napoleon S. v. Walker, 217 W. Va. 254, 617 

S.E.2d 801 (2005).
1

Jenkins, Justice:

This is an appeal by Petitioners1 C.P. (“Paternal Grandfather”), the minor 

child J.P.’s2 paternal grandfather, and S.D. (“Maternal Grandmother”), J.P.’s maternal 

grandmother, from a final order entered October 28, 2019, by the Circuit Court of Berkeley 

County. By that order, the circuit court permanently placed the minor child3 with R.M. 

and A.M. (“Foster Parents”) instead of with an appropriate grandparent. On appeal, 

Petitioners claim that the circuit court disregarded the statutory grandparent preference 

under West Virginia Code § 49-4-114(a)(3) (LexisNexis 2015) by placing the child with 

the Foster Parents because (1) Paternal Grandfather was a fit caretaker; (2) bureaucratic 

failures of the state agencies of West Virginia and Pennsylvania led to the child staying 

with the Foster Parents for an extended period of time while waiting for Paternal 

Grandfather’s home study to be completed; and (3) placement with Paternal Grandfather

is in the child’s best interest. Accordingly, we find that the circuit court erred by not 

adhering to the grandparent preference in this case where bureaucratic delays caused the 

child to remain in the home of the foster family for an extended period of time, and where 

there has been no showing that Paternal Grandfather is unfit or that such placement is not 

1 Where necessary, the grandparents also will be referred to collectively as 

“the Petitioners.”

2 In cases involving sensitive facts, we refer to the parties by their initials 

rather than their full names. See, e.g., In re I.M.K., 240 W. Va. 679, 682 n.1, 815 S.E.2d 

490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016). 

See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving 

children). 

3 The minor child, J.P., is currently four years old.
2

in the child’s best interest. Having considered the briefs submitted on appeal, the appendix 

record, the parties’ oral arguments, and the applicable legal authority, we reverse the final 

order of the Circuit Court of Berkeley County, and remand this matter for further 

proceedings consistent with this opinion. 

I.

FACTUAL AND PROCEDURAL HISTORY

In June of 2017, Respondent West Virginia Department of Health and 

Human Resources (“DHHR”) filed a child abuse and neglect petition against the biological 

parents of J.P. claiming that their alleged drug abuse impacted their ability to care for J.P.

4

The child was removed from the home of his biological parents on or about June 26, 2017. 

The mother completed an improvement period, and the child was returned to her custody 

in September of 2017. In April of 2018, the father’s parental rights were involuntarily 

terminated. Two months later, in June of 2018, the DHHR filed a second abuse and neglect 

petition against mother after she was arrested for selling drugs to an undercover officer. 

The DHHR immediately placed J.P. with the Foster Parents. 

One day after being placed with the Foster Family, on June 29, 2018, the 

Petitioners moved to intervene to have the child placed with their families in Philadelphia, 

4 J.P.’s paternal half-brother was also a party in this proceeding, but he was 

ultimately reunified with his biological mother and now lives with her in Philadelphia, 

Pennsylvania. 
3

Pennsylvania. Paternal Grandfather lives with his adult daughter in Philadelphia, 

Pennsylvania, and Maternal Grandmother lives in her own residence, also in Philadelphia. 

At a multidisciplinary team (“MDT”) meeting on July 26, 2018, Maternal Grandmother 

requested that the child live with her or her adult daughter. She also indicated that she was 

willing to move to West Virginia in order to have immediate placement of the child, and 

to avoid waiting for a home study to be completed pursuant to the Interstate Compact on 

the Placement of Children (“ICPC”). However, after the MDT meeting, it was determined

that Maternal Grandmother was not a suitable placement for the child. Therefore, at the 

September 21, 2018 MDT meeting, Paternal Grandfather requested placement of J.P. with 

him, and began completing paperwork for the ICPC process in Pennsylvania. 

Two months later, on November 20, 2018, mother’s parental rights were 

involuntarily terminated, and the circuit court granted the Petitioners’ motion to intervene. 

At the hearing, Paternal Grandfather clarified that he was requesting placement of J.P., and 

that he lived in the same home as his adult daughter, J.P.’s paternal aunt. Afterwards, the 

circuit court entered an order pursuant to the ICPC directing the DHHR to complete an 

ICPC home study of Paternal Grandfather’s home. From here, setbacks in submitting

information to the proper authorities caused delays in completing the home study; it is 

undisputed that these delays were not attributable to the Petitioners or the appropriateness 

of the Paternal Grandfather’s home. 
4

In January of 2019, the circuit court held a status hearing and learned from 

the guardian ad litem that the ICPC request had to be resubmitted by the DHHR. 

Thereafter, the DHHR did not resubmit the requested documents until April. Once the

home study process was properly initiated, there were additional unspecified delays 

attributable to Pennsylvania’s child welfare agency, which was assigned to conduct the 

home study. On May 14, 2019, the Foster Parents moved to intervene and requested 

permanent placement of the child. The circuit court granted them intervenor status on May 

16, 2019. 

In July of 2019, the circuit court held a series of hearings to determine J.P.’s 

placement. The Foster Parents presented the testimony of Dr. James Piper “Toby” 

Behrmann, a licensed clinical psychologist, who testified as an expert regarding child 

development and psychology.5 In this case, Dr. Behrmann spent a significant amount of 

time examining signs of “Reactive Attachment Disorder.” According to Dr. Behrmann, 

his main concern was that J.P. was at risk for “not attaching well . . . [t]he research shows 

that at [age] two if you are struggling with attachment, your risk for not attaching goes 

high.” 

5 The Foster Parents retained the services of Dr. Behrmann. Meanwhile, 

Paternal Grandfather was unable to afford to retain his own rebuttal expert. He asked the 

court for state funding, but the court denied this request and stated that the Petitioners were 

not entitled to state funding for placement decisions. As such, the only expert to testify on 

the issue of placement in this matter was an expert retained by the Foster Parents.
5

During his testimony, Dr. Behrmann presented the findings of the bonding 

assessment he performed on the child and the adult parties, i.e., the Foster Parents and the 

Petitioners. He first testified that the child acted appropriately with the Foster Parents and 

the other children in their home. Specifically, Dr. Behrmann commented on the foster 

father and how well he was “attuned” to the child’s frustrations and moods. However, 

while the child appeared to be on the verge of forming an attachment with the Foster 

Parents—in particularly, the foster father—the attachment had not yet formed, but was 

“decent and growing.” Finally, Dr. Behrmann opined that the child was delayed in his 

ability to form deep close interpersonal bonds and was at an increased risk of developing 

Reactive Attachment Disorder if removed from the Foster Parents’ home. 

Next, Dr. Behrmann offered testimony on the interactions between the 

Petitioners and the child. He noted that Paternal Grandfather “did a good job. He was able 

to pick up on [J.P.].” Dr. Behrmann acknowledged that the child had spent more of his life 

with the Foster Parents than with Paternal Grandfather, and therefore, he observed that 

“attachment was less [with Paternal Grandfather] than with [Foster Parents].” However, 

he did note that Paternal Grandfather “was a comfort” and the child “was able to feel met 

by what [Paternal Grandfather] did for him.” Regarding the child’s ability to bond with 

Paternal Grandfather through placement, Dr. Behrmann stated: “The sad thing for me was 

I think Pennsylvania wouldn’t accelerate whatever you need to do to look at the transfer so 

that cost another year. That was a critical time period in terms of attachment disorder 

risks.” 
6

However, despite his concerns regarding the risk of J.P.’s inability to form 

deep attachments, Dr. Behrmann testified that both the Foster Parents and the Paternal 

Grandfather were appropriate placements for the child and reported no concerns with the 

child’s interactions with either party. When asked if he had any opinion about whether it 

would be detrimental to remove the child from the Foster Parents, Dr. Behrmann 

unequivocally stated: “I want to be clear I am not making a custody recommendation. I 

don’t have the data. I haven’t examined the homes. I haven’t seen them enough. I don’t 

know enough of the case.”6

 

The circuit court also heard testimony from a DHHR worker, a social worker 

from the Children’s Home Society, the Paternal Grandfather, and the Foster Parents. When 

questioned about the status of the home study, the DHHR worker testified that the ICPC 

request for the home study—first requested in November of 2018—was resubmitted in 

April of 2019, after a series of delays. She also testified that the DHHR had no 

6 Dr. Behrmann commented repeatedly on the fact that “[t]here are a lot of

good people involved here. All the above parenting figures, at this point in time, deeply 

care about [J.P.].” After spending time with all of the parties involved, Dr. Behrmann 

commented once again on the difficulty of this case and his inability to make a final 

placement determination. In his report filed with the circuit court, Dr. Behrmann described 

some “regressive behavior” that J.P. experienced at his foster home after spending a 

weekend with the Petitioners: 

Was it because of extended time away from the [Foster 

Parents] and thus inherently too stressful on [J.P], being away 

from his now emotionally attached anchor point in life – [foster 

father]? Or was [J.P.] fitting to/bonding to paternal grandfather 

and maternal grandmother and found leaving them difficult, 

taking a while to re-attach to [foster father]? I can’t know.
7

recommendation regarding the permanent placement of the child because Paternal 

Grandfather’s home study had not been completed. However, she indicated that the DHHR 

would be more likely to recommend placement with the Foster Parents because the child 

had been in their care for over thirteen months. The circuit court stated that it would 

withhold its ruling until the completion of a home study of Paternal Grandfather’s home.

The circuit court held a final placement hearing on September 9, 2019. At 

the hearing, a letter dated September 6, 2019, was presented indicating that a third-party 

company had completed a home study of Paternal Grandfather’s home in Philadelphia. 

However, the DHHR argued that the letter was not an official document of the State of 

Pennsylvania and stated that it had not received any official documentation regarding the 

home study required by the ICPC. 

After hearing final arguments from counsel, the circuit court went on to hand 

down its ruling by making additional findings of fact. In rendering its ruling, the court

stressed that it had relied heavily on the testimony of Dr. Behrmann to determine which

placement was in J.P.’s best interest. The court further noted that it also considered the 

mental and physical health of the parties and voiced its concerns about Paternal 

Grandfather’s long term ability to parent a young child.

7

 Ultimately, the circuit court found 

7 The circuit court noted in its order that it had 

concerns about the [P]aternal [G]randfather’s ability, due to his 

age, to parent a very young child long-term, specifically as the 
8

that it was in the child’s best interest to remain with the Foster Parents, and further found 

that the best interests of the child outweighed the statutory preference for grandparent 

adoption set forth in West Virginia Code § § 49-4-114(a)(3). The circuit court entered an 

order reflecting its decision on October 28, 2019. It is from this order that Petitioners 

appeal. 

II. 

STANDARD OF REVIEW

The instant proceeding is before this Court on appeal from the circuit court’s 

final order in an abuse and neglect proceeding. In this context, we previously have held 

that, 

[a]lthough 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 

child approaches adolescence and later teenage years. The 

[c]ourt is concerned that the challenges of parenting an older 

adolescent could be too much for the [P]aternal [G]randfather 

at that time in his life.

Paternal Grandfather was fifty-two years old at the time of the September 2019 final 

placement hearing. Without any additional findings regarding Paternal Grandfather’s 

health, we are not persuaded by the argument that Paternal Grandfather’s age of fifty-two 

years would hinder his ability to parent J.P.
9

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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Moreover, 

because we will be examining the statutory grandparent preference,

8 we also must be 

mindful of 

the propriety of the meaning ascribed to the pertinent statutes 

by the circuit court. With respect to such matters, we 

previously have held that “[w]here the issue on an appeal from 

the circuit court is clearly a question of law or involving an 

interpretation of a statute, we apply a de novo standard of 

review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 

138, 459 S.E.2d 415 (1995).

In re K.L. and R.L., 241 W. Va. 546, 552, 826 S.E.2d 671, 677 (2019). With these

standards in mind, we now address the issue presented: whether the circuit court correctly 

applied the grandparent preference found in West Virginia Code § 49-4-114(a)(3) under 

the facts of this case.

III.

DISCUSSION

In the case sub judice, this Court is faced with a situation where multiple 

families are fighting for the opportunity to provide J.P. with a safe, secure, and loving

home. Both the Foster Parents and the Petitioners have expressed interest in adopting the 

8 See Section III, infra, for the text of West Virginia Code § 49-4-114(a)(3).
10

child, yet only one family can prevail under the law. In short, we are once again faced 

with a situation in which we are litigating a child’s placement “only because too many 

people love this little boy.” In re Clifford K., 217 W. Va. 625, 646, 619 S.E.2d 138, 159 

(2005). Here, the circuit court examined two suitable placements for J.P.—one placement 

with his Paternal Grandfather in Philadelphia, Pennsylvania, in close proximity to his 

Maternal Grandmother and biological half-brother, and the other placement with the

Foster Parents, with whom he has lived for the duration of these proceedings—and,

ultimately placed J.P. with the Foster Parents. In making its placement decision, the 

circuit court gave great weight to the fact that the child had spent a large portion of his life 

in foster care and was, therefore, on the cusp of building an attachment with the Foster 

Parents. However, on appeal to this Court, the Petitioners contend that the circuit court 

erred in failing to apply a statutory policy preference for grandparent adoption, and

emphasized that the child’s extended foster care stay was due to bureaucratic failures in 

both the West Virginia and Pennsylvania child welfare systems, and thus, the circuit court 

failed to give them an adequate opportunity to receive placement of their grandchild under 

the grandparent preference established by the West Virginia legislature. 

In support of their position, the Petitioners argue that the circuit court erred 

in refusing to place J.P. with Paternal Grandfather after he had a favorable home study and 

a satisfactory evaluation from Dr. Behrmann. They further contend that procedural delays 

and breakdowns in the ICPC process magnified the extent to which the child was injured 
11

because the ICPC process, as employed in this matter, failed to adequately and timely allow 

for consistent and familiar kinship interactions with the child when he needed it most. 

Conversely, the Foster Parents and the DHHR argue that placement with the 

Foster Parents did not occur only because the DHHR and the ICPC failed to procure a 

timely home study of the Paternal Grandfather’s home. Rather, they contend that in 

deciding to place the child with the Foster Parents, the circuit court found that while “both 

parties would be able to provide a loving, secure home for the child, the [c]ourt believe[d] 

that allowing the child to remain in the home of the foster family, with an adoption by 

same, [was] in the child’s best interest.” Additionally, in furtherance of its goal to meet 

the best interests of the child, the court found that the Foster Parents have shown “that they 

will seek out the appropriate services that the child needs, and engage in said services, in 

order to attempt to help the child heal from the damage he has suffered and will continue 

to do so in the future.”

To resolve the matter presently before us, we need look no further than the 

law of this State. The West Virginia Legislature recognized the importance of grandparentgrandchild relationships when it adopted the grandparent preference to govern the adoption 

of children whose parents’ parental rights have been terminated in the context of abuse and 

neglect proceedings. Under West Virginia Code § 49-4-114(a)(3), the DHHR is expressly 

required to determine whether grandparent placement would be appropriate before 

considering placing a child with other potential adoptive parents:
12

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.

The grandparent preference also has been set forth in the DHHR’s internal 

regulations, which state, in part: “The statute contemplates that placement with 

grandparents is presumptively in the best interests of the child, and the preference for 

grandparent placement may be overcome only where the record reviewed in its entirety 

establishes that such placement is not in the best interests of the child.” See West Virginia 

Department of Health and Human Resources, Adoption Policy § 7.3 (revised March 17,

2020). 

Further, we have specifically recognized that “[t]he grandparent preference 

articulated in West Virginia Code § 49-3-1(a) must be recognized as essential guidance in 

the determination of child placement.” Napoleon S. v. Walker, 217 W. Va. 254, 261, 617 

S.E.2d 801, 808. Nonetheless, while we emphasize the importance of the grandparent 

preference, we also note that this Court has found that the preference is not absolute. In 

the case of In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 (2010) (per curiam), this 
13

Court reversed the circuit court’s placement of a child with her grandparents, and reiterated

that the best interests of the child must always be considered in the first instance. 

Specifically, the Court stated:

Our prior holdings in Napoleon are critically important insofar

as we explicitly recognized that a crucial component of the

grandparent preference is that the adoptive placement of the

subject child with his/her grandparents must serve the child’s

best interests. Absent such a finding, adoptive placement with

the child’s grandparents is not proper.

In re Elizabeth F. at 786, 696 S.E.2d at 302. Thus, while this preference must be balanced 

with the best interests of the child, it is the child’s best interest that serves as the ultimate 

determinable factor. See, e.g., Syl. pt. 5, in part, Carter v. Carter, 196 W. Va. 239, 470 

S.E.2d 193 (1996) (“In . . . custody matters, we have traditionally held paramount the best 

interests of the child.”).

In this regard, we have examined the interplay of the grandparent preference

statute and the child’s best interest, and explained that 

West Virginia Code § 49-3-1(a)[3] provides for 

grandparent preference in determining adoptive placement for 

a child where parental rights have been terminated and also 

incorporates a best interests analysis within that determination 

by including the requirement that the DHHR find that the 

grandparents would be suitable adoptive parents prior to 

granting custody to the grandparents. The statute contemplates

that placement with grandparents is presumptively in the best

interests of the child, and the preference for grandparent

placement may be overcome only where the record reviewed

in its entirety establishes that such placement is not in the best

interests of the child.

Syl. pt. 4, Napoleon S., 217 W. Va. 254, 617 S.E.2d 801 (emphasis added). Moreover,
14

[b]y specifying in West Virginia Code § 49-3-1(a)(3) 

that the home study must show that the grandparents “would 

be suitable adoptive parents,” the Legislature has implicitly

included the requirement for an analysis by the Department of 

Health and Human Resources and circuit courts of the best

interests of the child, given all circumstances of the case.

Syl. pt. 5, Napoleon S., 217 W. Va. 254, 614 S.E.2d 801.

As noted above, the sole issue before this Court is whether, with respect to 

the permanent placement of J.P., the circuit court erred in placing him with the Foster 

Parents for adoption rather than with Paternal Grandfather in view of the statutory 

preference for grandparent placement. Based upon our review of the foregoing authorities 

relied upon, we find that the circuit court erred in placing J.P. with the Foster Parents. 

Unlike this Court’s previous cases9 dealing with the grandparent preference, 

the current case largely turns on the delays and shortcomings of the West Virginia DHHR 

9 This Court has a long history of analyzing the statutory grandparent 

preference located at West Virginia Code § 49-4-114(a)(3). However, in the majority of 

these cases, the best interests of the child trumped the grandparent preference because the 

grandparent was found to be unfit. See, e.g., In re K.E., 240 W. Va. 220, 809 S.E.2d 531 

(2018) (awarding placement of the child to the foster family because grandparents took 

minimal steps to obtain custody at the beginning of the proceedings and concerns arose 

over the fact that the grandparents’ children, i.e., the parents whose rights had been 

terminated, lived down the street in a house owned by the grandparents); In re L.M., 235 

W. Va. 436, 774 S.E.2d 517 (2015) (ruling that custody of the child should be given to 

foster family after learning that maternal grandparents had exposed grandchildren to items 

from biological mother’s meth-contaminated home); In re Aaron H., 229 W. Va. 677, 735 

S.E.2d 274 (2012) (ruling that adoptive placement of child with foster parents was proper

because grandfather could not comply with submitting paperwork; he did not request 

additional time to complete the required paperwork, and he was found to be “transient”); 
15

and its counterpart agencies in Pennsylvania. As this Court has emphasized, abuse and 

neglect proceedings constitute a large part of our docket, and “[m]any of these cases are 

replete with failures of the DHHR to live up to their responsibilities, not only to protect 

children who are abused and/or neglected, but to address these children’s individualized 

special needs which are often related to or the result of the abuse and/or neglect.” State ex

rel. W. Va. Dep’t of Health & Human Res. v. Dyer, 242 W. Va. 505, ___, 836 S.E.2d 472, 

482 (2019). Consequentially, as a result of these unfortunate delays, we find that the circuit 

court in the present case failed to apply the grandparent preference in an appropriate 

manner. While we recognize that this case presented a difficult decision for the circuit

court—where two families were vying to provide the child with a safe, secure, and loving

home—it must be noted that being presented with a difficult decision does not excuse a 

circuit court from examining all of the evidence required to be considered by the governing 

statutory law and the applicable decisions of this Court. 

In re Hunter H., 227 W. Va. 699, 715 S.E.2d 397 (2011) (placing child with foster family 

because grandmother had occasional drug use in the home, and she resorted to yelling and 

smacking as a form of discipline); In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 

(2010) (per curiam) (finding that best interests of the child were met by placement with the 

foster family due to grandparent’s willingness to allow child multiple interactions with 

grandparent’s adult children who abused drugs and whose rights to the child had been 

terminated). 

Unlike the grandparents in the above-referenced cases, in the case sub judice, 

Paternal Grandfather was found to be a fit, suitable placement for the child. 
16

Here, the circuit court focused almost exclusively on Dr. Behrmann’s expert 

testimony regarding the child being on “the cusp” of forming a strong attachment bond 

with the Foster Parents, the length of time the child had spent with the Foster Parents over 

the course of his short life, and the importance of the child remaining “in a consistent 

placement.” We acknowledge that each of these concerns is valid and important to the 

circuit court’s decision. Nevertheless, in making these findings, the court ignored that the 

length of said placement was almost entirely the fault of the delays caused and perpetuated 

by the West Virginia and Pennsylvania state agencies involved, and utterly failed to give 

any credence to the statutory law applicable to the unique facts of this case. 

Petitioners have been involved in the underlying abuse and neglect 

proceedings, and have expressed their interest in adopting J.P. since the very beginning of 

this case—specifically, Petitioners came to West Virginia, retained an attorney, and 

requested placement of the child just one day after he wasremoved from his mother’s home 

and placed with the Foster Parents in June of 2018. In November of 2018, once it was 

decided that Paternal Grandfather would be the grandparent seeking J.P.’s placement, the 

circuit court entered an order pursuant to the ICPC, directing the DHHR to facilitate the 

completion of an ICPC home study of Paternal Grandfather’s home. However, once the 

paperwork was submitted, a series of bureaucratic delays ensued. 

In January of 2019, the DHHR was informed that it had requested the wrong

home study under the ICPC, and that it needed to resubmit the paperwork. At the 
17

placement hearing in July of 2019, the DHHR employee testified that the documentation 

was not resubmitted to the State of Pennsylvania until late March or early April—some 

three to four months after the DHHR had learned of its mistake. When asked why the 

resubmission was delayed for so long, the DHHR employee testified: “Because I was not 

aware how to do an ICPC.” At the final placement hearing in September of 2019, the 

circuit court acknowledged that a letter from Pennsylvania New Foundations, Inc., was 

filed with the court. The letter—addressed to Paternal Grandfather—informed him that he 

was approved as an ICPC Resource Parent. Counsel for the DHHR stated that it had been 

unable to get a “clear answer” from anyone in Pennsylvania as to whether Paternal 

Grandfather had been officially approved by that State. The circuit court suggested that 

the DHHR should be able to verify the letter through an ICPC worker in Charleston; 

however, the DHHR never produced anyone to testify in this regard. Despite the existence 

of the letter, however, the circuit court noted in its final order that the letter “was not an 

official document indicating the status of whether or not the [Paternal Grandfather’s] home 

study had actually been passed by the State of Pennsylvania or West Virginia.” Although 

these delays are not attributable to any one agency, and no one person can be fairly accused 

of causing them, such lengthy delays and missteps are unacceptable particularly when a 

young child is awaiting permanency. See Syl. pt. 1, in part, In Interest of Carlita B., 185 

W. Va. 613, 408 S.E.2d 365 (1991) (“Child abuse and neglect cases must be recognized as 

being among the highest priority for the courts’ attention. Unjustified procedural delays 

wreak havoc on a child’s development, stability and security.”).
18

We find that the evidence provided to us in the record illustrates that 

Paternal Grandfather is fit to care for his grandson, J.P., and that placing the child with

Paternal Grandfather is in J.P.’s best interest. As this Court held in Napoleon S.: “The 

statute contemplates that placement with grandparents is presumptively in the best 

interests of the child, and the preference for grandparent placement may be overcome only

where the record reviewed in its entirety establishes that such placement is not in the best 

interests of the child.” Syl. pt. 4, in part, Napoleon S. v. Walker, 217 W. Va. 254, 617 

S.E.2d 801 (2005) (emphasis added); see also West Virginia Code § 49-4-114(a)(3). 

While this Court appreciates the thorough testimony and observations of Dr. Behrmann 

and the circuit court’s attempt to act in the best interests of the child in this case, we find 

that the evidence put forth shows that Paternal Grandfather should have been granted 

placement of the child in accordance with the statutory grandparent preference.10 Here, 

10 This Court has emphasized the importance of grandparent-grandchild 

relationships in prior cases. As we stated in Petition of Nearhoof, 178 W. Va. 359, 359 

S.E.2d 587 (1987): 

It is biological fact that grandparents are bound to their 

grandchildren by the unbreakable links of heredity. It is 

common human experience that the concern and interest 

grandparents take in the welfare of their grandchildren far 

exceeds anything explicable in purely biological terms. A very 

special relationship often arises and continues between 

grandparents and grandchildren. The tensions and conflicts 

which commonly mar relations between parents and children 

are often absent between those very same parents and their 

grandchildren. Visits with a grandparent are often a precious 

part of a child’s experience and there are benefits which 

devolve upon the grandchild from the relationship with his 

grandparents which he cannot derive from any other

relationship. Neither the Legislature nor this Court is blind to 
19

there was no evidence presented to the circuit court that showed unfitness on behalf of the 

Paternal Grandfather. Rather, in rendering its ruling, the circuit court explicitly stated that 

Paternal Grandfather was able to provide a safe, secure, and loving environment for the 

child: “I do not think either party would not be able to provide a stable and loving 

environment. I believe that both of the homes could provide that.”

Furthermore, it was the Guardian ad Litem’s opinion that grandparent 

placement was in J.P.’s best interest. At the final placement hearing, the Guardian told 

the court:

All I can do as the Guardian Ad Litem is see how [J.P.] 

interacts with his foster parents, see how [J.P.] interacts with 

his grandparents, and review the court reports, review the 

records from the social workers and professionals who have 

been trained at being able to identify any concerns, review the 

recommendations of Dr. Behrmann, and then make a 

recommendation to the Court[.] . . . I believe in doing so that is 

why my position has been and continues to be under the current 

situation to allow for [J.P.] to be placed permanently with his 

paternal grandfather.

The Guardian further emphasized her position in the brief she submitted to this Court. She 

strongly noted that it was her recommendation “that placement with the foster family would 

in her opinion provide short term relief to immediate risks of developing attachment 

human truths which grandparents and grandchildren have 

always known.

Id. at 364, 359 S.E.2d at 592 (quoting Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199, 

204-05 (1975)).
20

disorders[,] but run contrary to the [child’s] long-term cultural, biological, familial, and 

ethnic interests.” Further, the GAL feared 

that as the [child] reaches an age of greater understanding and 

begins to learn of these proceedings and the measures taken by 

his biological family to keep him within the family unit[, it] 

will cause the [child] longterm sorrow and resentment in 

adolescence and adulthood which may likely destroy any bond 

the [child] would have formed with his foster parents and 

deprive him of the long-term attachments he would need in 

adulthood. 11

Accordingly, we find that the best interests of J.P. would best be promoted 

by placing him with Paternal Grandfather. Although this is a difficult decision based on 

the adequacy of both homes, we cannot ignore this State’s statutory preference carved out 

for grandparents who are found to be a fit and appropriate placement for their grandchild. 

Therefore, we reverse the circuit court’s final order placing the child with the Foster Parents 

and remand this case for entry of an order permanently placing the child with Paternal 

Grandfather.12 Upon remand, the circuit court is further instructed to ensure that the 

11 We would be remiss if we did not acknowledge the Guardian ad Litem’s 

diligent representation of J.P. in this case. In spite of countless delays by the DHHR in 

requesting Paternal Grandfather’s home study and the additional delays propounded by the 

agencies in Pennsylvania, the Guardian, when faced with this lack of information, took it 

upon herself to travel to Philadelphia to visit Paternal Grandfather’s home to determine its 

suitability for J.P.’s placement. We greatly appreciate the Guardian’s advocacy for her 

minor client’s best interests, and her willingness to conduct such an investigation in this 

case when information was lacking. 

12 In light of our conclusion that the circuit court erred when it disregarded 

the statutory grandparent preference, we need not address Petitioners’ alternative 

contention that the circuit court also erred by failing to apply the statutory sibling 

preference to the facts of this case. See West Virginia Code § 49-4-111(d)-(f) (LexisNexis 

2015). 
21

appropriate measures are implemented in facilitating this custodial transfer to minimize 

any harm to the child. See Syl. pt. 3, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d

400 (1991) (“It is a traumatic experience for children to undergo sudden and dramatic 

changes in their permanent custodians. Lower courts in cases such as these should provide, 

whenever possible, for a gradual transition period, especially where young children are 

involved. Further, such gradual transition periods should be developed in a manner 

intended to foster the emotional adjustment of the children to this change and to maintain 

as much stability as possible in their lives.”). 

IV.

CONCLUSION

For the reasons set forth above, the October 28, 2019 order of the Circuit 

Court of Berkeley County is hereby reversed, and this case is remanded for further 

proceedings consistent with this Opinion.

Reversed and Remanded.