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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.S., K.S., and J.S.

No. 21-0995 (Kanawha County 21-JA-148, 21-JA-149, and 21-JA-150)

MEMORANDUM DECISION

Petitioner Grandmother T.S., by counsel Matthew A. Victor, appeals the Circuit Court of 

Kanawha County’s November 16, 2021, order denying her motion to intervene for permanent 

placement of D.S., K.S., and J.S.

1 The West Virginia Department of Health and Human Resources 

(“DHHR”), by counsel Patrick Morrisey and James Wegman, filed a response in support of the 

circuit court’s order. The guardian ad litem (“guardian”), Matthew Smith, 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 her motion to intervene in the abuse and neglect proceedings.

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. 

The proceedings below began upon the filing of a child abuse and neglect petition that is 

not included in the appendix record on appeal. According to the record, this petition named the 

parents of D.S., K.S., and J.S. as abusing and neglectful parents, and the children as abused and 

neglected children. Petitioner is the paternal grandmother of D.S. and K.S. and claimed status as a 

psychological grandparent of J.S. After the abuse case was initiated against the parents, the 

children were temporarily placed with petitioner. However, after petitioner allowed the mother to 

have unsupervised contact with the children and refused to allow court-ordered visitation between 

J.S. and his father, the DHHR removed the children from petitioner’s home.

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

May 12, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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In August of 2021, petitioner filed a motion to intervene in the proceedings. The circuit 

court held a hearing on petitioner’s motion the following month. At the hearing, petitioner 

explained that she was seeking party status based on her blood relation to D.S. and K.S. and 

emotional connection to all three children. Petitioner also requested an explanation as to the 

removal of the children from her custody. Petitioner’s counsel claimed during the hearing that 

petitioner had “for all practical purposes, raised these children, [and] had prolong[ed] physical 

custody” for “two, three days a week, [and] weekends.” Petitioner’s counsel went on to note that 

petitioner “was the only person who was considered a temporary and permanent placement” for 

the children once the abuse petition was filed against the parents. Petitioner’s counsel 

acknowledged that, even if the court denied petitioner’s motion to intervene, she “still reserve[d] 

the right to file a separate motion for custody and placement.” The court inquired why petitioner 

never sought guardianship of the children. Petitioner’s counsel replied that petitioner “never 

understood the process of the guardianship.” However, the court noted that “[a]ccording to the 

[child abuse] petition, she said that she didn’t want to interfere with the children’s relationship 

with their mother, who they love dearly, nothing about being [un]familiar with the appropriate 

procedures to follow as it relates to guardianship.” After this inquiry, petitioner’s counsel 

acknowledged that “any guardianship would [not] have been necessary, because the children were 

still in the parents’ custody.”

Next, the DHHR proffered that the children were removed from petitioner’s home because 

she allowed the mother to have unsupervised visitation with the children. The DHHR explained 

that this was in violation of a prior circuit court order that prohibited the mother from having 

unsupervised visitation. The DHHR noted that the mother had screened positive for 

methamphetamine shortly after at least one unsupervised visit with the children. The DHHR 

explained to the court that it was concerned that petitioner placed the mother’s needs over the 

needs of the children and that it should deny petitioner’s motion to intervene as premature and 

because she “already had custody and she squandered that opportunity because she could [not] 

follow the rules.”

Finally, the guardian also reported that J.S. was previously removed from petitioner’s home 

because petitioner refused to allow a court ordered visitation with the father. The guardian noted 

that a Child Protective Services (“CPS”) worker came to petitioner’s home on an unscheduled 

workday to remove the child from petitioner’s home as a result. After hearing this evidence, the 

court determined that petitioner’s motion to intervene was premature because the case was still in 

the adjudicatory phase. Nevertheless, the circuit court decided the motion “on its substance, 

because I have concerns that [petitioner] has not been respectful of court orders as it relates to the 

visitation in these proceedings.” The court further found that petitioner’s actions were an 

“impediment to this process and certainly not in the best interests of her grandchildren.”

Petitioner filed a renewed motion to intervene in October of 2021, arguing that she had a 

role in raising the children and claiming the court’s decision to remove the children from her 

custody damaged the children. The court issued an order denying petitioner’s renewed motion to 
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intervene in November of 2021. Petitioner appeals the circuit court’s November 16, 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 

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 denying her motion to intervene

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 “[e]ven 

if [she] unintentionally failed to comply” with the court’s orders regarding no contact with the 

mother or allowing J.S. to participate in visitation with the father, “her perceived transgression 

could not have been of such magnitude as to deprive her of any contact with her grandchildren.”

We find no merit to petitioner’s argument.

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).

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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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Further, West Virginia Code § 49-4-114(a)(3), “[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.” Syl. Pt. 2, in 

part, In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 (2010) (citation omitted). 

On appeal, petitioner argues that she spent years “acting as a foster parent, physical 

custodian, biological grandparent, and psychological grandparent [of J.S.]” and she should have 

been provided notice of the proceedings and an opportunity to be heard from the outset of the case. 

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

to participation rights in a child abuse and neglect case. While petitioner contends, in part, that her 

status as a grandparent entitled her to placement of the children, this Court has 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) (citation 

omitted).

The record is clear that the children were removed from their parents’ care and placed with 

the petitioner temporarily. Aside from her own self-serving statements, petitioner failed to present 

any evidence that she was a pre-petition custodian. Indeed, during a hearing on petitioner’s motion 

to intervene, the circuit court questioned petitioner’s counsel as to why petitioner did not file for 

guardianship proceedings at any point during the many years she claims to have primarily cared 

for the children. Petitioner’s counsel stated that petitioner was unfamiliar with the legal process. 

However, the court noted that petitioner had previously stated that she did not wish to interfere 

with the children’s relationship with the mother. This evidence belies petitioner’s claims that she 

was simply unfamiliar with the guardianship process.

Further, petitioner allowed the mother, who was subject to a no contact order, to visit the

children. From this, coupled with the evidence of petitioner’s lack of cooperation with the DHHR 

in facilitating visitation with J.S.’s father, it is clear that the DHHR’s concerns that petitioner would 

not comply with court orders while the children were in her care were valid. Also, due to the 

mother’s ongoing substance abuse, the DHHR did not believe that petitioner would be able to 

protect the children if she allowed visitation in violation of the court’s orders. Indeed, the mother 

tested positive for methamphetamine shortly after petitioner allowed her to have contact with the 

children. Additionally, petitioner suffered no prejudice because the court carefully considered her 

motions to intervene in the proceedings and conducted multiple evidentiary hearings regarding the 

children’s placement and permanency. Given the foregoing, we find that the circuit court did not 

err in denying petitioner’s motion to intervene. 

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

November 16, 2021, order is hereby affirmed.

Affirmed.
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ISSUED: May 12, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn