1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.N. and I.N. Jr.

No. 19-1112 (Randolph County 18-JA-110 and 18-JA-111)

MEMORANDUM DECISION

Petitioner R.N., the children’s paternal grandfather, by counsel David C. Fuellhart, appeals 

the Circuit Court of Randolph County’s October 30, 2019, order granting permanent placement of 

L.N. and I.N. Jr. with 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”), Heather M. Weese, 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 denying him placement of the children, failing to require the DHHR to conduct a 

home study of his residence, and denying him 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 September of 2018, the DHHR filed an abuse and neglect petition against the parents

after receiving a referral that the children’s father was selling controlled substances out of 

petitioner’s home, where the children were also residing. The petition alleged that I.N. Jr. saw his 

father sell drugs out of the home and said that petitioner was aware the father did “bad things at 

night to get money for the family.” Further, the petition alleged the DHHR found 

methamphetamine underneath a futon on which the children were sitting. The petition also alleged 

that petitioner provided care for the children and that they were exposed to abusive and neglectful 

situations in his home. Despite the father’s conduct in the home, petitioner denied knowledge of

the father’s drug activities. The children remained with petitioner for two weeks after the petition 

was filed, until the DHHR discovered that petitioner’s parental rights to his three children—

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).

FILED

June 25, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

including L.N. and I.N. Jr.’s father—had been terminated twenty years earlier. As a result of this

discovery, the children were taken out of petitioner’s home and placed into foster care. The parents 

were adjudicated as abusing parents in October of 2018 and were granted post-adjudicatory 

improvement periods.

In October of 2018, petitioner began requesting visitation with the children, to which the 

DHHR and guardian objected, due to petitioner’s prior termination of parental rights. Despite the 

concerns, the circuit court granted petitioner two supervised visits with the children around the 

Thanksgiving and Christmas holidays. In light of the visits, petitioner was drug screened and tested 

positive for marijuana. Additionally, the guardian alleged that petitioner had inappropriate 

conversations with the children about the case during the visits, including promises that the 

children would live with him.

Final dispositional hearings were held in April and August of 2019, wherein the circuit 

court terminated the father’s and mother’s parental rights, respectively. After the termination of 

the father’s parental rights, petitioner asked for placement of the children, or in the alternative, 

visitation. The DHHR and guardian continued to object to petitioner’s request due to the prior

termination of his parental rights. The circuit court appointed petitioner an attorney in June of 

2019.

The circuit court held a permanency hearing for the children in September of 2019 wherein 

petitioner requested placement, or in the alternative, visitation with the children. The DHHR 

recommended that placement of the children remain with the foster parents due to the strong bond

the children had with them, the fact that the children had been in their care for several months, 

petitioner’s prior termination of parental rights, and petitioner’s continued substance abuse. A 

DHHR caseworker testified that petitioner had stipulated to abusing and neglecting his own 

children in 1999, due to substance abuse that affected his ability to parent. The caseworker further 

testified that petitioner’s stipulation eventually led to the termination of his parental rights to his 

three children and that DHHR policy prohibited the placement of the children with petitioner. The 

DHHR also presented evidence that the children’s parents continued to visit petitioner’s home 

after their rights to the children had been terminated. Finally, a CPS worker testified that it had 

substantiated an allegation that petitioner prostituted his then fourteen-year-old daughter to a drug 

dealer to satisfy his drug debt in 1999. Petitioner denied the allegations and testified that he was 

never criminally charged. Petitioner’s daughter testified and denied the allegations, for the first 

time ever, at the hearing. Additionally, petitioner admitted that he had been using marijuana for 

the last forty-one years, including when visiting the children in December of 2018, and that he 

continued to use marijuana until the last month before the hearing. Nevertheless, petitioner testified 

that he promised to stop using if it meant that he would receive placement of the children. In 

addition to marijuana, the DHHR presented evidence that petitioner tested positive for Subutex in 

July of 2019. Petitioner denied using Subutex or having any knowledge of the controlled 

substance. 

Based upon the evidence, the circuit court found that it was in the best interests of the 

children to remain in their placement with the foster parents. The circuit court found that drug use 

was the basis for petitioner’s previous termination of parental rights and that petitioner continued 

his drug addiction “for the next [twenty] years thereafter.” The circuit court also found that the 
3

DHHR’s policy prohibited placement of any child in petitioner’s care and that the policy was 

“well-founded and consistent with the best interest of the children.” In short, the circuit court found 

that petitioner’s home was “not appropriate for placement of the children.” Additionally, the circuit 

court found that the children’s pre-adoptive family was best suited to make decisions as to future 

visitation and left any decision of visitation at their sole discretion. As such, the circuit court 

granted permanent placement of the children to the foster parents and left visitation in their 

discretion. It is from the October 30, 2019, 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 by denying him placement of the 

children and by failing to require the DHHR to conduct a home study of his residence. According 

to petitioner, the record is insufficient to overcome the statutory presumption that placement of the 

children with him was in the children’s best interests. Petitioner argues that the children lived with 

him for two years, he visited the children “every day of their lives,” and the children were only 

removed “because of old allegations against the [p]etitioner—the same allegations that were 

denied by the alleged victim at the hearing.” Additionally, petitioner argues the circuit court should 

have required the DHHR to conduct a home study of his residence when he requested placement 

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.
4

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

In re K.E., 240 W. Va. 220, 225, 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) (citation omitted). Accordingly, 

[b]y specifying in 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 220, 809 S.E.2d at 533, syl. pt. 3 (citation omitted).

Contrary to petitioner’s assertion, the circuit court did not err in finding that the DHHR

overcame the statutory presumption of placing the children with him. Notably, petitioner contends 

that the only reason the children were removed from his home was because he was “accused of 

allowing his minor daughter to have sex with a man in exchange for controlled substances,” an 

accusation that he denies. Petitioner’s contention that this was the sole reason that he was denied 

placement of the children both minimizes the severity of the substantiated abuse and neglect of 

other children and ignores several other findings that the circuit court articulated in its order. In

the order, the circuit court found that petitioner was “adjudicated twenty years ago upon his 

admission to drug use affecting his ability to parent,” his “parental rights were terminated,” and 

his “drug addiction continued for the next [twenty] years thereafter.” Petitioner does not dispute 

any of these findings. In fact, petitioner readily admitted at the hearing that he had used marijuana 

for the last forty-one years, tested positive when he visited the children, and only stopped using a 

month prior to the permanency hearing. Additionally, the circuit court found that petitioner had a 

“prior substantiation, adjudication, and termination of parental rights” and that the DHHR has a 

policy which “prohibit[ed] placement of any child in [petitioner]’s care.” The circuit court found 

that policy to be “well-founded and consistent with the best interest of the children.” Further, the

circuit court found that two of petitioner’s children were in and out of his home, despite the fact 

that both had their own parental rights terminated. As such, the circuit court had ample evidence 

to support its findings and conclusion that petitioner’s home was “not appropriate for placement 

of the children.”

Next, petitioner argues the circuit court erred in not ordering the DHHR to perform a home 

study of his residence. On this issue, we have previously held that 

[w]hile the grandparent preference statute . . . places a mandatory duty on 

the West Virginia Department of Health and Human Resources to complete a home 

study before a child may be placed for adoption with an interested grandparent, “the 

department shall first consider the [grandparent’s] suitability and willingness . . . to 

adopt the child.” There is no statutory requirement that a home study be completed 

in the event that the interested grandparent is found to be an unsuitable adoptive 

placement and that placement with such grandparent is not in the best interests of 

the child.
5

Syl. Pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015). Here, the DHHR found that 

petitioner was an unsuitable placement for the children due to his prior termination of parental 

rights and continued substance abuse. Therefore, the DHHR was not required to conduct a home 

study as placement of the children with petitioner was not in the children’s best interests. 

Although petitioner was initially given temporary placement for the children, the evidence 

as a whole indicated that the best interests of the children necessitated permanent 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 evidence 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. 

Finally, petitioner argues that the circuit court erred by denying him visitation with the 

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

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

We have previously held that

[p]ursuant to W.Va. Code § 48-10-902 [2001], 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.

Syl. Pt. 3, In re Hunter H., 231 W. Va. at 118, 744 S.E.2d at 229. 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 leaving visitation at the sole discretion of the children’s foster parents. 

In light of the anticipated adoption by a non-relative, we find that he is entitled to no relief in this 

regard.

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

October 30, 2019, order is hereby affirmed.

Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison