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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.H., E.H., and R.H.

No. 21-0463 (Kanawha County 20-JA-305, 20-JA-306, and 20-JA-307)

MEMORANDUM DECISION

Petitioner Grandmother L.D., by counsel Scott E. Elswick, appeals the Circuit Court of 

Kanawha County’s May 7, 2021, order denying her permanent placement of C.H., E.H., and R.H.

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The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order and a 

supplemental appendix. The guardian ad litem, Elizabeth G. Kavitz, 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 finding that petitioner was not statutorily entitled to intervene in the matter, in not 

adding her as a party to the proceedings, and in making findings contrary to the grandparent 

preference statute.

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 July of 2020, the DHHR filed a child abuse and neglect petition against the parents based 

upon allegations of drug abuse. Specifically, the DHHR alleged that law enforcement officers were 

dispatched to a hotel room upon receiving reports of drug activity. The parents and the children 

were in the hotel room and, upon searching the room, police officers located a box containing 

scales, spoons, needles, and vials in the toilet tank. Child Protective Services (“CPS”) implemented 

a safety plan wherein the children’s maternal great-grandmother agreed to supervise the mother 

and the children in the great-grandmother’s home. However, approximately one week later, the 

mother was arrested after she attempted to sell heroin, and one of the children was found in the car 

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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

November 8, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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in the presence of drug paraphernalia at the time of the arrest. When CPS workers removed the 

children from the great-grandmother’s home, they observed the mother’s accomplice in the 

attempted heroin sale, a known drug addict, also in the home.

Ultimately, the circuit court adjudicated the parents as abusing and neglecting parents and 

eventually terminated their parental rights. The mother appealed the termination of her parental 

rights, and this Court affirmed the circuit court’s dispositional order by memorandum decision. 

See In re C.H., No. 20-0917, 2021 WL 1550242 (W. Va. Apr. 20, 2021) (memorandum decision).

Petitioner, the children’s maternal grandmother, allegedly filed a motion to intervene and 

sought placement of the children in November of 2020; however, the motion was not properly 

filed, noticed, or received by the circuit court or the parties. In April of 2021, the circuit court held 

a hearing on the permanent placement of the children, at which time petitioner was able to raise 

her motion. In support of her motion, petitioner testified that she had sought placement of the 

children since the initiation of the proceedings and called the guardian over twenty times without 

a response. Petitioner further stated that she went to the DHHR office in person to attempt to 

request placement of the children and called the caseworker multiple times without response. 

The CPS worker testified that petitioner was not considered to be an appropriate placement 

for the children because petitioner supported the mother throughout the proceedings, denied that 

the mother had done anything wrong, and repeatedly informed the DHHR workers that the children 

should be placed with the mother. As such, the DHHR determined that placement with petitioner 

was not in the children’s best interest. In rebuttal, petitioner denied that she ever indicated the 

children should be placed with the mother.

After hearing testimony, the circuit court denied petitioner permanent placement of the 

children. The circuit court found that petitioner was an inappropriate placement and that her 

testimony was not credible. The circuit court further found that petitioner essentially slept on her 

rights and was “way late to the dance.” Lastly, the circuit court noted that the children were 

flourishing in their respective foster placements. Petitioner appeals the circuit court’s May 7, 2021, 

order denying her permanent placement of the children.

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The Court has previously established the following standard of review in cases such as this:

“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 

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The parents’ parental rights were terminated below. The children were placed in a foster 

home, and the permanency plan for the children is adoption by the foster family.
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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 not naming her as a party and 

finding that she did not have a statutory right of intervention in the proceedings below. According 

to petitioner, she was a caregiver of the children and, as such, was entitled to notice of the 

proceedings and the right to be heard. She further argues that if she had been afforded party status, 

she would have been appointed an attorney that could have assisted her in the process, she would 

have discerned much earlier in the proceedings that she needed to obtain counsel at her own 

expense. Alternatively, petitioner argues that, had she been given notice and the opportunity to 

participate in the proceedings, she would have been able to more timely establish that she was an 

appropriate placement. Thus, the DHHR and guardian likely would not have opposed placement 

of the children in her home. 

Petitioner’s involvement in the proceedings is governed by West Virginia Code § 49-4-

601(h), which establishes a “two-tiered framework” of the parties who enjoy the procedural due 

process right of a meaningful opportunity to be heard. State ex rel. H.S. v. Beane, 240 W. Va. 643, 

647, 814 S.E.2d 660, 664 (2018). Specifically, parties having “custodial or other parental rights or 

responsibilities” are entitled to both “a meaningful opportunity to be heard” and “the opportunity 

to testify and to present and cross-examine witnesses.” W. Va. Code § 49-4-601(h). Further, we 

have explained that “[a] person ‘who obtains physical custody after the initiation of abuse and 

neglect proceedings—such as a foster parent—does not enjoy the same statutory right of 

participation as is extended to parents and pre-petition custodians.’” Beane, 240 W. Va. at 648, 

814 S.E.2d at 665 (quoting State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL 1788946 at *3 (W. 

Va. May 5, 2017) (memorandum decision)) (emphasis added). These individuals—foster parents, 

pre-adoptive parents, and relative caregivers—are entitled to a meaningful opportunity to be heard 

only and are not entitled to an opportunity to testify and present and cross-examine witnesses. W. 

Va. Code § 49-4-601(h).

Notably, petitioner cannot be classified as any of those individuals listed above who are 

entitled to participation rights in a child abuse and neglect case. The record is clear that the children 

were removed from their parents’ care and placed with the maternal great-grandmother under a 

temporary protection plan. Aside from her own self-serving statements, petitioner failed to present 

any evidence that she was a pre-petition custodian or a relative caregiver as defined by West 

Virginia Code § 49-4-601(h), especially considering that she lived in another state at the time of 

the petition’s filing. To the extent petitioner argues that the circuit court erred in denying her 

motion to intervene, we find no error. The record is clear that petitioner failed to properly file and 

notice her motion to intervene, leaving the parties below and the circuit court unaware of her 

motion until several months after the termination of the parents’ parental rights. Although 

petitioner failed to notice her motion, the circuit court nonetheless considered her motion and 

allowed petitioner to present evidence and testimony in support of that motion. Given the 

foregoing, we find that the circuit court did not err in declining to add petitioner as a party to the 

proceeding or in denying her motion to intervene.
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Petitioner next argues that the circuit court made findings “contrary to the grandparent 

preference” during the proceedings below. According to petitioner, the circuit court made 

numerous findings regarding the DHHR’s investigation, efforts to prevent removal, and placement 

“without any meaningful participation or even monitoring of the proceedings by . . . [p]etitioner.” 

Petitioner claims that she informed the DHHR of her desire to adopt the children and that a home 

study of her home should have been ordered by the circuit court. Petitioner argues that she was 

“assisting significantly” with the children’s caretaking and that she should not have been denied 

placement of the children based on the CPS worker’s testimony that she initially supported the 

mother, which she denies. She asserts that, by not adding her as a party to the matter, coupled with 

the DHHR’s refusal to return her phone calls or investigate her home, “any findings made by [the 

circuit court] upon the record established to date have been contrary to the applicable statutes, rules 

and standards.”

On this issue, we have previously held that 

[w]hile the grandparent preference statute3 . . . 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.

Syl. Pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015) (footnote added). In discussing the 

grandparent preference, this Court noted that “[t]he preference is just that—a preference. It is not 

absolute . . . the child’s best interest remains paramount.” In re K.E., 240 W. Va. 220, 225, 809 

S.E.2d 531, 536 (2018). Simply stated, “[t]he grandparent preference must be considered in 

conjunction with our 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)).

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West Virginia Code § 49-4-114(a)(3), the grandparent preference statute, provides as 

follows:

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.
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At the outset, we reiterate that petitioner failed to demonstrate that she was entitled to be 

added as a party to the proceedings below. Moreover, petitioner’s argument regarding the DHHR’s 

failure to conduct a home study is unavailing given that the DHHR considered placement of the 

children with petitioner but found her to be an unsuitable placement. As noted above, the DHHR 

is absolved of its statutory duty to perform a home study if it finds the grandparent is unfit and 

placement in the home is not in the children’s best interests. In re L.M., 235 W. Va. at 438, 774 

S.E.2d at 520, Syl. Pt. 10, in part. Here, the evidence established that petitioner unfoundedly 

supported the mother throughout the proceedings, denied that the mother had done anything 

wrong, and repeatedly informed the DHHR workers that the children should be placed with the 

mother despite her rampant drug abuse. While petitioner denies that she supported the mother, the 

circuit court found her testimony in that regard to be incredible, a determination we decline to 

disturb on appeal. Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) 

(“A reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely 

situated to make such determinations and this Court is not in a position to, and will not, second 

guess such determinations.”). As such, petitioner’s home clearly was not suitable for the children

and, therefore, the circuit court did not abuse its discretion by not ordering the DHHR to conduct 

a home study. Moreover, we find no error in the circuit court’s determination that placement of 

the children in the foster family’s home was in their best interests given that petitioner was an 

unsuitable placement, as well as the children’s bond with the foster family, the length of time they 

had lived in that home, and their substantial progress while in their care.

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

7, 2021, order is hereby affirmed.

Affirmed.

ISSUED: November 8, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton