1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

 

In re D.F. and J.F. 

No. 18-0454 (Gilmer County 16-JA-10 and 16-JA-11)

MEMORANDUM DECISION 

Petitioner C.J., the children’s maternal grandmother, by counsel Daniel R. Grindo, 

appeals the Circuit Court of Gilmer County’s April 13, 2018, order granting permanent 

placement of D.F. and J.F. to the foster parents.1 The West Virginia Department of Health and 

Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit 

court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a response on 

behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues that 

the circuit court erred in failing to properly consider the grandparent preference and the best 

interests of the children, and in terminating her visitation with the children. 

 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. 

 In June of 2016, Child Protective Services (“CPS”) opened a case with the mother and 

father of J.F. and D.F. to address concerns with the parents’ caregiving capabilities. CPS 

implemented a safety plan with services to address its concerns, and the children were placed in 

the care of their maternal aunt. At some point, the DHHR filed an abuse and neglect petition 

against the parents and alleged that they failed to comply with the safety plan.2

 The parents were 

                                                             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). 

2

Another child, A.G., was involved in the proceedings below. J.G. is the father of A.G. A 

child abuse and neglect petition was also filed against him during the proceedings below. J.G. 

was granted an improvement period, which he successfully completed, and the petition against 

him was dismissed. A.G. was placed in his care and the permanency plan for the child is to 

 (continued . . .) 

FILED 

November 19, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2 

adjudicated as abusing parents in August of 2016 and were granted post-adjudicatory 

improvement periods. 

In November of 2016, the children were removed from the care of their maternal aunt due 

to domestic violence in the home and were placed in a non-adoptive foster home. Around 

February of 2017, the children began respite visits with the current foster parents and were 

completely transitioned into the home by April of 2017. During the course of the proceedings, 

the children’s maternal great-grandmother, C.R., inquired into gaining placement of the children 

and a home study was initiated. The multi-disciplinary team discussed placement with the greatgrandmother, but expressed concerns due to her advanced age of seventy-five. 

A final dispositional hearing was held in August of 2017, wherein the circuit court 

terminated the parents’ parental rights.3

 Thereafter, the great-grandmother and petitioner, the 

maternal grandmother of the children, filed a joint motion to intervene, seeking placement of the 

children.4 The circuit court held a hearing on the matter in September of 2017, wherein it granted 

the motion to intervene, but denied placement of the children with petitioner and the greatgrandmother at that time. However, petitioner and the great-grandmother were granted 

supervised visitation. 

A home study of the great-grandmother’s home was completed later in August of 2017. 

The evaluator found that the great-grandmother’s home was appropriate, but expressed concerns 

regarding the great-grandmother’s ability to provide long-term care to the children due to her 

advanced age. The great-grandmother obtained a medical waiver from her physician stating that 

she was physically capable of caring for the children and her home study was eventually 

approved based on the waiver, with the understanding that petitioner would be available to assist 

the great-grandmother in taking care of the children. At that time, petitioner lived in Ohio and 

was a full-time student, but reported that she planned to move into the great-grandmother’s home 

in January of 2018. The foster parents filed a motion to intervene in December of 2017, which 

the circuit court granted. In January of 2018, petitioner moved into the great-grandmother’s 

home and another home study was performed and approved shortly thereafter. 

The circuit court held a permanency hearing for the children over the course of two days 

in February of 2018 and March of 2018. The DHHR recommended that placement of the 

children remain with the foster parents due to their strong bond, the fact that the children had 

been in their care for eleven months, the great-grandmother’s age and health, and petitioner’s 

                                                                                                                                                                                               

remain in his care. As such, petitioner states that she does not request placement of A.G. and she 

is not at issue on appeal. 

3

The mother appealed the termination of her parental rights to the children. This Court 

affirmed the circuit court’s termination by memorandum decision. See In re A.G., No. 17-0875, 

2018 WL 1256610, (W.Va. March 12, 2018)(memorandum decision). 

4

While the great-grandmother and petitioner filed a joint motion to intervene during the 

proceedings below, the great-grandmother did not appeal the circuit court’s final order. 
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alleged lack of interest in gaining placement of the children. Petitioner testified that she was 

never contacted regarding placement of the children. Nevertheless, petitioner participated in 

visits with the children until they were stopped by the DHHR due to not having a court order. 

Petitioner reported that she then moved the circuit court to grant her visitation, which was 

approved, and that she consistently participated in visitation since that time. Petitioner stated that 

she intervened in the case once she determined that the mother’s parental rights were going to be 

terminated and that, contrary to the DHHR’s assertions, she did express an interest in gaining 

placement of the children. Following testimony, the guardian proffered that the children should 

remain with the foster parents. The guardian stated that, contrary to petitioner’s testimony, she 

had been asked whether she was interested in placement of the children, but declined to 

participate in a home study because she was in school and unable to care for the children at that 

time. 

After hearing evidence, the circuit court found that the best interests of the children were 

to remain in their placement with the foster parents. The circuit court opined that petitioner only 

became interested in placement of the children when it became apparent that placement with the 

great-grandmother was problematic due to her age. The children had been placed with the foster 

parents for eleven months and demonstrated a significant bond with them. As such, the circuit 

court granted permanent placement of the children to the foster parents and terminated visitation 

with petitioner. It is from the April 13, 2018, order that petitioner appeals. 

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). 

 On appeal, petitioner argues that the circuit court erred in failing to consider the 

“grandparent preference” set forth in West Virginia Code § 49-4-114(a)(3). According to 

petitioner, the circuit court’s final order is devoid of any consideration of this statutory 

preference for permanent placement of children with grandparents. Petitioner argues that the 

circuit court failed to consider that the DHHR did not comply with the statute by failing to make 

inquiry into whether she desired placement of the children, failing to consider her approved 

home study, and recommending that placement of the children remain with the foster parents. 
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She further alleges that the circuit court failed to consider the best interests of the children. We 

disagree. 

West Virginia Code § 49-4-114(a)(3) states that 

[f]or 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. 

However, we have also noted that “[t]he preference is just that – a preference. It is not absolute.” 

See In re K.E., 240 W.Va. 220, --, 809 S.E.2d 531, 536 (2018). In fact, “[t]he grandparent 

preference must be considered in conjunction with [this Court’s] long standing jurisprudence that 

‘the primary goal in cases involving abuse and neglect . . . must be the health and welfare of the 

children.’” In re Hunter H., 227 W.Va. 699, 703, 715 S.E.2d 397, 401 (2011) (quoting Syl. Pt. 3, 

in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996)). Accordingly, 

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

49-4-114(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 [DHHR] and circuit courts of the best interests of the child, 

given all circumstances of the case. 

In re K.E., 240 W.Va. at --, 809 S.E.2d at 533, Syl. Pt. 3 (quoting Syl. Pt. 5, Napoleon S. v. 

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

Contrary to petitioner’s assertion, the circuit court did not fail to consider the grandparent 

preference set forth in West Virginia Code § 49-4-114(a)(3). While the order contains sparse 

findings, the transcript of the permanency hearing is replete with the circuit court’s consideration 

of placement of the children with petitioner and the foster parents. The circuit court found that 

petitioner only became interested in placement of the children once the DHHR raised concerns 

regarding the great-grandmother’s advanced age and ability to care for the children. The 

guardian proffered that petitioner was contacted regarding placement of the children but declined 

to participate in a home study at that time due to attending school. Petitioner did not take steps to 

gain placement of the children until it was clear the parents’ parental rights would be terminated 

in August of 2017, nearly a year after the children were removed from their parents’ care. Due to 

petitioner’s inaction, the children were moved to a foster home and remained there throughout 

the case, enabling them to develop a strong bond with the foster parents. 

Based on the record, we find that the DHHR complied with the process set forth in West 

Virginia Code § 49-4-114(a)(3) by identifying petitioner, who declined to participate in a home 
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study at that time. Once petitioner expressed an interest in placement, a home study was 

performed and she was approved for placement. The record demonstrated that, despite 

petitioner’s approved home study, the best interests of the children necessitated permanent 

placement with the foster parents. The home study evaluator testified that she approved 

petitioner’s home study by giving the great-grandmother an age waiver, simply because they 

were relatives. She testified that “we want more relatives now” and repeatedly confirmed that the 

approved home study was based upon petitioner’s status as a relative and the greatgrandmother’s medical waiver. Her testimony did not demonstrate clear consideration of the 

children’s best interests. In contrast, several other witnesses testified that the children 

demonstrated a strong bond with the foster parents and did not seem to have a strong bond with 

the grandparents. The children called their foster parents “mommy and daddy” and were 

reluctant to leave them for visits with petitioner. After visits with petitioner, they were always 

ready to return home to their foster parents. Due to this strong bond, the DHHR and the guardian 

recommended that placement of the children remain with the foster parents. 

Although petitioner was approved as an appropriate placement for the children, the 

evidence as a whole indicated that their best interests necessitated placement with the foster 

parents. We have previously held that “[t]he [grandparent preference] 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.” Napoleon S., 217 

W.Va. at 256, 617 S.E.2d at 803, Syl. Pt. 4, in part. After much consideration on the record, the 

circuit court properly found that the testimony at the permanency hearing demonstrated that 

placement with petitioner was not in the children’s best interest. Accordingly, we find that the 

circuit court did not err in denying the same. 

 Petitioner also argues that the circuit court erred in terminating her visitation with the 

children. According to petitioner, maintaining a relationship with her is in the children’s best 

interests. We find petitioner’s argument to be without merit. 

We have previously held that 

[t]he Grandparent Visitation Act, W.Va. Code § 48-10-101 et seq., is the 

exclusive means through which a grandparent may seek visitation with a 

grandchild. The best interests of the child are expressly incorporated into the 

Grandparent Visitation Act in W.Va. Code §§ 48-10-101, 48-10-501, and 48-10-

502. Pursuant to W.Va. Code § 48-10-902, the Grandparent Visitation Act 

automatically vacates a grandparent visitation order after a child is adopted by a 

non-relative. The Grandparent Visitation Act contains no provision allowing a 

grandparent to file a post-adoption visitation petition when the child is adopted by 

a non-relative. 

In re Hunter H., 231 W.Va. at 118, 744 S.E.2d at 229, Syl. Pts. 1-3. Because post-adoption 

visitation between a grandparent and a child is not contemplated by the Grandparent Visitation 

Act, the circuit court did not err in denying petitioner the same. In light of the anticipated 

adoption by a non-relative, we find that she is entitled to no relief in this regard. 
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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

April 13, 2018, order is hereby affirmed. 

Affirmed. 

ISSUED: November 19, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment