1 

### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re J.B. and B.B.

No. 2 2

- 0 2 16 ( Lewis Count y 20

- JA

- 49 and 20

- JA

- 50 )



### MEMORANDUM DECISION

Self

- represented gr andparents and petitioners, H.G. and C.G.

, ap peal t he Circui t Co u rt o f
Lewis County’s February 22

, 20 2 2 , order denying them permanent placement of J.B. and B.B

. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by counsel Pat ri ck

Mo rrisey and Lee A. Niezgoda

, and the guardian ad lit em ( “ guardian ” )

, J am e lla L. Lockwood

, f iled a joint resp on s e in suppo rt o f t he c irc ui t co urt’s o rde r

. Petitioners filed a reply.

Thi s Co u r t has considered the parties’ bri efs and t he r ecor d on appeal. The fact s and lega l

a rgume nts are adeq uately pre s ent ed, and th e deci si on a l p roce s s would no t be si gni fican tly aid ed
b y oral arg u ment. Upon consideratio n of the standa rd of review, th e bri e fs, a nd the record present ed, the Cour t fi nds n o substa ntial question of law and no pr eju dicia l e rror

. For these

rea s ons , a memora nd um d ec is i on affi r m ing th e c ir cuit cou rt’s order i s ap propriate u nder Rule 21
of the Rul es of Appellate Procedure.

Petitio ners are the maternal grandparents of J.B. and B. B

. , who were the subject s of an August of 2020 abuse and negl ect petition in volving their pa rents

. In January of 2022 , the circuit

co urt held a perma nenc y hearing regarding peti tioners ’ mo tion for permanent placement of the
children. The cour t heard testimony from four DHHR workers and the children ’ s ther apist.

Pe titioners were permitted the o ppo rtunity to cross

- examine those w itnesses and present

e vid ence , including their own te stimony. Ba sed on that evidence, the court denied petitioner s ’
motio n for placement of the children. It found that i n August of 2020, t hen

- five

- year

- old J.B.
and one

- y ear

- old B.B. were placed with petitioners pending a home stu dy of their home. Shortly
after their p lacement in petitioner s ’ home, a DHHR worker discussed with petitioner s the potential issu es with the condition of their ho me , suc h as excessive clutter and unc leanliness.

1 Con sis t ent w i th our l o ng

- st a n d ing prac tice in cases wi th s en s i t iv e f act s , w e us e initials
wh e re neces sar y to prot ec t t he identi ti e s of those inv o l ved in this cas e

. See In re K. H

. , 2 3 5 W

. V a

. 2 5 4, 77 3 S .E

. 2d 2 0 (20 15); Mel ind a H. v

. W i ll ia m R. II , 230 W. Va . 7 31, 742 S

. E. 2d 419 (20 13 ) ; State v. Brando n B. , 2 18 W. Va

. 3 24

, 6 24 S .E

. 2 d 7 61 (2005); St a te v. Ed war d Charles

L

. , 183 W. Va

. 6 41 , 3 98 S.E .2d 1 23 (199 0). 

### FILED September 20, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 I n February of 2021, a rep resentative from the DHHR ’ s home finding unit visited the
home and found issues that were previously addressed (clutter and unclea n liness) had not been
remedied

. She advised petitioners that the y n eede d t o rectify th ese problems

. When s he re tur ned
in April of 2021

, she found only slight improvement with petitioners ’ home. Further, the

repres entative obs erved multiple animals in th e home, including skunks , chickens, rabbits, dogs

, and ca ts. During the Ap ril vi sit, p hot ographs were taken of peti tioners ’ home

, and based on those photographs, the circuit court found that petitioners ’ home was in depl orable c ondit ion and un fit
for minor children. As the circuit court further found

, p etitioner s “ officially failed their fi rst home study ” in May o f 2021

.

Later in May of 2021, the childr en were re turned to the parents ’ care while they completed t he remain der of their improvement period . Unfortunate ly, the parent s failed to fully comply

, so the children w ere removed from thei r p arents ’ care and plac ed in foster care in Jul y of 2021 . Petitioners requested a secon d home study in September of 2021

. On November 1, 2021, a n addendum to petitioners’ o riginal h ome study was entered, indicating that petitioners
had resolved the issues an d that the h ome was suita ble for the c hildren

. The DHHR continued the
children ’ s fo ster care p lacement. Later in November of 2021

, the g uardian made an unannounced visit to petitioners ’ home and obtained ph oto graphs of its state , which showed the home h ad
returned to an unsuitable state . Upon its review of the pho togra phs, the court found that the home

was excessively cluttered , with “ item s sta cked to the c eiling in several location s ” and cl utter blocking doors a nd windows

. The court also observed t hat t he bathroom and kitchen of the home
were filt hy. The court con cl uded that the home was no t fit and suitable for child ren

. Soon after,
i n January of 202 2, a se cond re presentative from the DHHR home finding unit made an
unannounced home visit to pet itioner s ’ ho me and found that it r emained in an un suita ble
condition. S he prepared a “ corrective action plan

, ” detailing eleven re qui red change s in the
ho me

. Notably, p etitio ner C.G. admitted during the permanency hearing in January of 202 2 that
her home was not ap pro priate w hen the children were placed there

.

In ad dition to the conditi on of the home, witnesses te stified that i t would not be in the
childr en ’ s best int erests to live with petitioner s. J. B. ’ s therap ist testified that J.B. did not wish to live with pet iti oners and that J.B. was having “ repeated accidents ” af ter v isit ing with them

.

Ultimately, the circuit court found that petitioner s continued to d emonstra te that they

were unable to ma intai n a clea n , san itary, fit and proper residence for children. It f urt her found
that it w as not in the children ’ s best interests to be p laced with petitioners. Accordingly, t he court
de nied their motion to inter ve ne and fo r permane nt placement of J.B. and B.B . by its F e bruary 22, 2022

, order. Pet itioner s now appeals. 2

T he Co urt ha s pre vi ou sl y esta bli shed the fo llowing standard of review :

2 The parents ’ pare n tal rights were terminated in O c tobe r of 2021. According to the

par ties, the permanency plan for the children is adoption in their curren t place ment.3 “Alt hough co nclusions of l aw re ac hed by a circ u i t cou rt ar e subjec t to de

novo rev ie w, wh en an ac tion

, su c h as an a buse a nd negle ct c ase , i s trie d upo n the
f ac ts w i th o ut a j ur y, th e c ircuit co urt s hall m a ke a determ i n a tion b a se d u pon th e evi de nc e an d shall mak e fin d in gs of fac t a nd conc lu sions of law a s t o w hethe r such c h ild is abused o r negle ct e d. Th ese fi nd i n g s shall not b e set as id e by a

r ev iewi ng co u rt un l es s cl e ar l y er r o ne ous

. A f inding is clea rly e r r on eo us when

,
a ltho ug h t her e is e viden ce t o su pp ort the f indin g , the revie win g court o n the entire

e v id enc e is left wit h the d e finite a nd firm c o nv i ct ion th at a mi stake has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t m ay not o v er tur n a f inding si mply
beca u s e i t would h a v e dec id e d the cas e diffe re nt ly

, an d it must affi r m a finding if

t he ci rc uit court’s a c c ou nt of th e eviden c e is p l ausible in ligh t o f t he rec or d

v i e we d in its en tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y M a rie S

. , 196 W .V a . 223,
47 0 S.E .2d 1 7 7 ( 19 96).

S y l . Pt

. 1

, In re C ec il T

. , 22 8 W. V a. 89, 71 7 S.E

. 2d 873 (201 1).

On ap peal, petitioner s ar gue that the circuit court erred in denyin g thei r mo tion for permanent placement of the children. They dispute man y , if not all , of the circuit court ’ s fac tual findings as mi sleadin g or inconsistent with the testimony presented at the permanenc y hearing.

P etitioners ta ke part icular issue with the DHHR ’ s fai lure to p lace the children with them
foll owing the children ’ s removal from the parents in July of 2021. Upon review of the rec ord in
its enti rety, we find petitioners are entitled to no relief on appeal.

West Virgin ia C ode § 49

- 4

- 113(a )(3) (also know n as “ the grandparent preference ” statute) requires the DHHR to “ f irst consider the suitability and willingness of any known

g rand parent or gr andparents ” when seeking any placement of a child for adoption. Th e statute

req uires t he DHHR to conduc t a home st udy evaluation of the grandparent s and their home

, and
i f it de ter mines “ based on the home study evaluation, that the grandpar ents would be suit able adoptive parents, it shall assure that the grand parents are offered the placeme nt of the child p rior
to the consideration of any other prospective adoptive parents. ” I d

. Thi s Court has recognized
that “ the Legislature has implicitly included [in West Virginia Code § 49

- 1

- 11 4(a)(3)] the requireme nt for an analysis by the [DHHR] and ci rcuit courts of the best int erests of the child, given all circumstances of the case. ” Syl. Pt . 3, in part, In re K.E.

, 240 W. Va. 220, 809 S.E.2d
531 (20 18) ( ci tation omitte d ). In other wor ds, “ [t] he [grandparent] preference is just th at

— a preferen ce. It is not absolute. As this Cou rt has emph asized, the child ’ s best interest remains paramount

. ” I d. at 2 2 5, 809 S.E.2d at 53 6

.

Contrary to petitioner s ’ ar gument on appeal, the record provided supports the circuit

court ’ s findings of fac t and conclus ions of law. 3 The circuit court det ailed petitioner s ’ failure to
maintain a suitable home for the chi ldren during their placement in the home and th er eafter.

Des p ite multiple p arties not ifying petitioner s that the condition of their home was a barrier to

3 No tably, the transcript of the circuit court ’ s permanenc y he aring was not include d in the record by any party.4 p ermanen t plac ement , they chose not to remedy those co nditions. Even as recently as January of
2022

, w ith petitioners ’ motion for permanent placement of the child ren pending and clear
direction from the DHHR , the circuit court found that th eir home contin ue d to be in appropriate
for the child ren

. Fu rther, the circuit court he ard evidence that J.B. did no t w ish to live with

pe titioners and had repeated toileting acci dents following his visitation with them

. Based on this evidence, we fin d no error in the c ircuit court conclud ing that it was not in the children ’ s best
interest to be placed with petitioners and in denying their motion for permanent pla cement

. Moreover, t he record confirms that petitioners failed their home study in May of 2021 , wh ich

was not am e nded as passi ng unti l November o f 2021

. As such, to the extent petitioners argue that
the DHHR fail ed to place the children wit h them when the children were remov ed a second time
fr om the parents in July of 2021, it is clear that the DHHR had recently determined t hat pet itioners ’ ho me failed the home study

, s o they did not qu alify for placement

. Accordi ngl y, petitioners are entit led t o no relie f on appeal

.

Fo r t he forego ing r eas on s , we f ind no erro r in t he de c i s i on o f t h e cir cu it c ourt

, and it s Febr u ary 22

, 2 0 2 2

, o r der is h e reby affirmed.

Affirm e d.

ISS UED : 

### September 20, 2022

CONCURRE D IN BY :

Chief Ju sti ce John A

. Hutch ison
Justi ce Eli zabeth D

. W al ker

Ju s tic e Tim Armst ead

Jus ti c e Willi am R. Wooton
Ju stice C. Haley Bunn