### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re L.L.-1, L.L.-2, and L.L.-3 

### April 9, 2018

EDYTHE NASH GAISER, CLERK No. 17-0917 (Kanawha County 17-JA-41, 42, and 43) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Grandmother, L.D., by counsel Steven M. Wright, appeals the Circuit Court of Kanawha County’s September 14, 2017, order denyi ng her placement of L.L.-1, L.L.-2, and

L.L.-3. 1 The West Virginia Department of Heal th and Human Resources (“DHHR”), by counsel

S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Christopher C. Mc Clung, filed a response on behalf of the children in support of the circuit court’s order and a supplemental a ppendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in failing to consider her for placement of the children and in ultimately denying her such placement. 2

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). Additionally, because the children share the same initials, we will refer to them as L.L.-1, L.L.-2, and L.L.-3 throughout this memorandum decision.

2 In her brief on appeal, petitioner sets forth he r first assignment of error as follows: “The Circuit Court Committed Reversible Error When it Denied [Petitioner’s] Motion to Intervene

And Denied Placement of Minor Children With Th eir Paternal Grandmother In Violation of West Virginia Code § 49-4-114(a)(3).” Howeve r, in the accompanying argument in support of this assignment of error, pe titioner provides no authority gove rning motions to intervene and otherwise fails to present any argument regarding the de nial of her motion to intervene, beyond a simple conclusion that denying the motion constitu ted error. Moreover, in support of her third assignment of error concerning the circuit court e rroneously imputing the fath er’s actions to her, petitioner cites to no law or ot her authority in support.

Rule 10(c)(7) of the West Virginia Rule s of Appellate Proced ure requires that

[t]he brief must contain an ar gument exhibiting clearly the points of fact and law presented

, the standard of review applicable, and citing the authorities relied on

. . . [and] must c ontain appropriate and specific citati ons to the record on appeal[.] The Court may disregard errors that ar e not adequately supported by specific references to the record on appeal.

(continued . . . )

1This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In January of 2017, the DHHR filed an abuse an d neglect petition against the parents that alleged the father was charged with fleeing from an officer and two counts of child neglect creating a risk of injury . These charges stemmed from the father fleeing from a police officer at a high rate of speed with two of the children in th e vehicle. According to the petition, the father attempted to strike an officer with the vehicle and the officer likely would have fired into the vehicle, had he not noticed the children. The pe tition further raised allegations of domestic violence and failure to provide the ch ildren with appropriate medical care.

In March of 2017, petitioner appeared at the ad judicatory hearing and sought to intervene in the proceedings. Petitioner sought placement of the children and informed the circuit court that she paid for the residence in which the parents lived with the children, in addition to having bought other supplies for the family. In support of her argument concerning placement, petitioner

indicated that she saw the childr en every day before they were removed. The circuit court then inquired why petitioner did not s eek to remedy the conditions of abuse and neglect in the home, to which she replied th at she did not know th eir extent. Although the circuit court denied petitioner’s motion to interven e at that time, it directed the DHHR to conduct a home study on petitioner’s residence. In regard to adjudication of the parents, the circuit court heard evidence that they failed to provide recommended medi cal attention for the infant, who they removed from the hospital against medical advice and was “severely dehydrat ed.” The circuit court heard further evidence that the parents slept in a car in the driveway with the baby and engaged in

extensive domestic violence.

(emphasis added). Additionally, in an Admini strative Order entere d December 10, 2012, Re: Filings That Do Not Comply With the Rules of A ppellate Procedure, then-Chief Justice Menis E. Ketchum specifically noted in paragraph two that “[b]riefs that lack citation of authority [or] fail to structure an argument applying applicable law” are not in compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the argument presented and do not ‘contain appropriate a nd specific citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in comp liance with this Court’s rules. Here, petitioner’s brief in regard to these assignments of error is inadequate as it fails to comply with West Virginia Rule of Appellate Procedure 10(c)(7) and our December 10, 2012, administrative order. Accordingly, on appeal, the Court will not addr ess the assignment of error alleging that the circuit court imputed the father’s actions to peti tioner or the allegation th at denying her motion to

intervene was error.

2At a dispositional hearing in May of 2017, the DHHR advised that neither the guardian nor the Court Appointed Special Advocates (“CASA”) representative recommended such placement due to concerns that petitioner would not keep the father away from the children. Specifically, the CASA report prepared for the dispositional hearing in dicated that placement with petitioner was inappropriate for several reas ons, including the fact that she “appear[ed] to be enmeshed and enabling” the “neglectful and vi olent father and failed to protect the children from neglect while they lived in a home sh e owned and visited daily . Moreover, the CASA report noted that “the children reportedly . . . di d not respond to [petitioner] when she visited them . . . .” Finally, the DHHR elicited evidence that the children were thriving in their current foster home. Ultimately, the circuit court te rminated the parents’ parental rights.

At a review hearing in August of 2017, the ci rcuit court again denied petitioner’s motion

to intervene. The circuit c ourt acknowledged that petitioner passed her home study but also found her testimony lacked credibil ity. The circuit court further found that petitioner “is not a suitable placement based upon what is in the best interest of the children . . . .” 3 As such, the circuit court denied petitioner placement of the children. It is from th e resulting order that petitioner appeals.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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). Upon our review, the Court finds no error in the proceedings below.

First, petitioner argues that the circuit court erred in failing to consider her for placement of the children. We find, however, that petition er’s argument lacks suppor t in the record or applicable authority. According to West Virginia Code § 49-4-114(a)(3),

3 The parents’ parental rights were terminated below. The children remain in a foster home with a permanency plan of adoption therein.

3[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 departme nt determines, based on the home study evaluation, that the grandpa rents 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 pr ospective adoptive parents.

(emphasis added). This statute, setting forth a preference for pl acement of children with their grandparents, imposes a duty on the DHHR to consider grandparents for placement. Petitioner admits that the DHHR complied with this requ irement. The statute does not, however, require the circuit court to agree with the DHHR’s reco mmendation outright. Indeed, we have held that West Virginia Code § 49-1-114(a)(3) “contempl ates 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).

Further, the record does not support petitioner’s assertion that the circuit court failed to consider her for placement of the children. Petitione r cites to a portion of the transcript for the August of 2017 hearing concerning permanency wher ein the circuit court st ated that petitioner “will not be considered for any t ype of placement with these child ren.” However, petitioner fails to acknowledge that this statemen t was made after the circuit cour t was presented with evidence at multiple hearings concerning whether placement in petitioner’s home was in the children’s

best interests. The circuit court further made th is statement after specifically finding that “based on the evidence presented in this case . . . [, pe titioner] does not appear . . . to be a suitable placement for the children.” Accordingly, it is clear that the circuit court did consider petitioner for placement of the children, as evidenced by its direction that the DHHR conduct a home study, and only excluded her from consideration once it determined that she was not a suitable caretaker. For these reasons, we find that petitio ner is entitled to no relief in this regard.

Finally, petitioner argues that the circuit co urt erred in denying her placement of the children. In support of this argumen t, petitioner argues that the ci rcuit court based its decision on the recommendation of the guardian ad litem, who she claims failed to make an independent investigation into the appropriateness of petitio ner’s home. According to petitioner, the guardian did not question her in an effort to ascertain if she would be an appropriate placement and otherwise failed to visit the home prior to rende ring his opinion on the final placement. As such, petitioner argues that denying her placement constituted error. We do not agree.

This Court has stated that, as a part of a “full and independent” invest igation of the facts involved in an abuse and neglec t case, guardians’ duties “include [] interviewing all prospective parents when a child’s placement is at issue.” In re Carol B. , 209 W.Va. 658, 667 n. 6, 550 S.E.2d 636, 645 n. 6 (2001). Under the limited facts of this case, however, we find that such an interview with petitioner was unnecessary, give n the evidence already in the record that

4established petitioner was, or s hould have been, aware of the c onditions of abuse and neglect in the home, but took no steps to protect the childre n. As noted above, petitioner initially indicated

to the circuit court that she sa w the children every day prior to their removal from the parents’

care. The record further shows th at the children exhibited severa l issues with medical neglect, including one child who was so severely dehydrated that hospitalization was necessary. Other evidence established that one child required co rrective lenses, the two oldest children were severely underweight a nd barely talking, and one child was still using a bottle at age three. Despite her daily presence in the home, petitioner took no action to ensure the children’s safety.

On appeal, petitioner argues th at she should not be held to a higher standard than the DHHR, who was providing services in the home pr ior to the children’s removal. According to petitioner, she had no duty to protect the chil dren because she believed that the DHHR “was managing the situation” and, as a result, did not take further action. We find this argument unpersuasive. The fact that the DHHR was providi ng the parents services in the home did not render any further abuse or neglect impossible, and petitioner, as an individual who supposedly saw the children on a daily basis, was in a position to identify any ongoing issues that presented a threat to the children’s welfare. While petitione r argues that she is not a medical professional or a social worker and, thus, should not have been re quired to identify issues of medical neglect, the fact remains that easily identifi able issues were occurring in the home. Specifically, the CASA report submitted to the circuit court indicated th at the children “had no clothing[.]” Clearly, this is an issue that should have caused petitioner some alarm, given her daily presence in the home.Instead, the CASA report asserted that petitioner “enable[ed the father’s] criminal and drugabusing lifestyle by providing hi m with a furnished home.”

Further, while it is true that peti tioner passed her home study with the DHHR and

achieved certification to foster ch ildren, these facts alone are not sufficient to establish that she be granted permanent placement of the children. Indeed, we have held that “‘[i]n a contest involving the custody of an infa nt the welfare of the child is the polar star by which the discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin , 131 W.Va. 302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W. , 233 W.Va. 91, 755 S.E.2d 8 (2014). Moreover, in regard to the grandparent preference, we have held that

[b]y specifying in West Virginia Code § 49-3-1(a)(3) [now West Virginia Code § 49-1-114(a)(3)] that the ho me study must show that the grandparents “would be suitable adoptive parents,” the Legislatur e 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 ch ild, given all circumstances of the case.

Napoleon S. , 217 W.Va. at 256, 617 S.E.2d at 803, Syl. Pt. 5. Here, the circui t court specifically found that petitioner “is not a suitable placement ba sed upon what is in the best interest of the children . . . .” This finding was based, in part, upon the fact that petitioner admitted to being in the home on a daily basis at such time as the chil dren were being abused and/or neglected by the parents. Accordingly, given all th e circumstances of the case, we find no error in the circuit court denying petitioner permanent placem ent of the children at issue.

5For the foregoing reasons, we find no error in the decision of the circuit court, and its September 14, 2017, order is hereby affirmed.

Affirmed.

ISSUED : April 9, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Allen H. Loughry II

Justice Elizabeth D. Walker

DISSENTING:

Justice Menis E. Ketchum

I would remand this case for further developm ent. The children’s grandmother sought to intervene and gain custody of her three grandchildren. Although the grandmother’s home passed a home study, the guardian ad litem did not in terview her and recommended she not be given custody. Our case law is clear that a guardian ad litem has a duty to interview prospective parents when a child’s placement is at issue. In re Carol B. , 209 W.Va. 658, 550 S.E.2d 636 (2001).

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