STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: A.H., H.H., & A.S. June 15, 2015 

RORY L. PERRY II, CLERK 

No. 15-0052 SUPREME COURT OF APPEALS (Nicholas County 14-JA-51 through 14-JA-53) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioners Maternal Grandparents C.S. and M.S., by counsel Amber Easter, appeal the 

Circuit Court of Nicholas County’s January 6, 2015, order denying them permanent placement of 

the children.1 The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad 

litem (“guardian”), Linda Garrett, filed a response on behalf of the children in support of the 

circuit court’s order. On appeal, petitioners argue that the circuit court erred in denying them 

permanent placement of the children.2 

The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of 

the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, 

and reversed, in part, and remanded to the circuit court with directions to address petitioners’ 

visitation rights pursuant to this Court’s holding in In re Hunter H., 231 W.Va. 118, 744 S.E.2d 

228 (2013). 

On April 11, 2014, the DHHR filed an abuse and neglect petition alleging that A.S.’s 

mother, M.S, allowed her boyfriend to sexually abuse his daughters, A.H. and H.H., and that she 

failed to protect the children from the sexual abuse.3 A.S. was initially placed in petitioners’ 

custody. The circuit court held an adjudicatory hearing in June of 2014, during which a Child 

Protective Services worker testified that M.S. witnessed her boyfriend sexually abuse his 

daughters and failed to prevent the abuse. Based on this evidence, the circuit court adjudicated 

M.S. as an “abusive and neglectful” parent. That same month, the circuit court held a hearing 

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Petitioners are the maternal grandparents of A.S. only. A.H. and H.H. are A.S.’s halfsiblings. All three children have the same biological father. 

2

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed at the time of the lower court proceedings. 

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A.H. and H.H.’s father voluntarily relinquished his parental rights. 

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during which the DHHR presented evidence that petitioners allowed M.S. to have contact with 

A.S. in violation of the circuit court’s order. Subsequently, A.S. was removed from petitioners’ 

house. After being removed from petitioners’ house, A.S. was placed in the same foster home as 

his half-siblings, A.H. and H.H. 

Thereafter, petitioners filed a motion to intervene in the underlying abuse and neglect 

proceeding seeking the permanent placement of only A.S. In September of 2014, the circuit court 

terminated M.S.’s parental rights to A.S. because she knowingly allowed her boyfriend to 

sexually abuse A.H. and H.H.4 

In November of 2014, the circuit court held a permanent placement hearing in the 

underlying proceedings. The circuit court heard testimony that separating the children “would be 

a horrible set-back” in their treatment. The circuit court also heard testimony that petitioners 

were only interested in adopting A.H. and H.H. as a means to adopt A.S., and that they may not 

provide a loving and nurturing home for A.H. and H.H. After considering the testimony and 

discussing the best interests of the children, the circuit court denied petitioners placement of the 

children, and allowed all three children to remain in the foster parent’s home.5 It is from this 

order that petitioners appeal 

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). Upon our review, the Court finds 

no error in the circuit court denying petitioners permanent placement of the children. 

On appeal, petitioners argue that the circuit court erred in failing to apply the grandparent 

preference and further in finding that placement with petitioners was not in the children’s best 

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M.S. appealed the termination of her parental rights to A.S. in October of 2014. This 

Court affirmed the circuit court’s termination. See In re: A.S., No. 14-0999 (W.Va. Supreme 

Court, February 9, 2015)(memorandum decision). 

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The circuit court also ordered that it was in A.S.’s best interest to have visitation with 

petitioners even after adoption was finalized. 

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interests. Petitioners claim the circuit court, pursuant to West Virginia Code § 49-3-1(a), should 

have placed the children with petitioners, as maternal grandparents, because they were granted 

temporary placement of A.S. at the outset of the underlying proceedings. Petitioners further 

argue that A.S. was removed from their custody based upon unsubstantiated allegations that they 

allowed M.S. to have contact with A.S. Petitioners also argue that the psychological evaluation 

recommendation that they were unwilling to accept all three children is false as the evaluation 

was performed before petitioners were advised that they were eligible to receive assistance from 

the State as foster care providers. 

This Court has been clear that the preference for placing children with grandparents is 

subordinate to the best interests analysis. We have held as follows: 

West Virginia Code § 49-3-1(a) provides for grandparent preference in 

determining adoptive placement for a child where parental rights have been 

terminated and also incorporates a best interests analysis within that determination 

by including the requirement that the DHHR find that the grandparents would be 

suitable adoptive parents prior to granting custody to the grandparents. The 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. 

By specifying in West Virginia Code § 49-3-1(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 

Department of Health and Human Resources and circuit courts of the best 

interests of the child, given all circumstances of the case. 

Syl. Pts. 4 & 5, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005); see also In re 

Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012) (affirming circuit court order that placed child 

with foster parent over grandparent based upon the child’s best interests.); In re Hunter, 227 

W.Va. 699, 715 S.E.2d 397 (2011) (the 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.” (internal citations omitted)); In 

re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010) (holding that the grandparent preference 

must be tempered by a court’s consideration of the child’s best interests.). 

Petitioners fail to address the statutory preference for placing siblings in the same home, 

which this Court has addressed as follows: 

W.Va.Code § 49–2–14(e) (1995) provides for a “sibling preference” 

wherein the West Virginia Department of Health and Human Resources is to 

place a child who is in the department’s custody with the foster or adoptive 

parent(s) of the child’s sibling or siblings, where the foster or adoptive parents 

seek the care and custody of the child, and the department determines (1) the 

fitness of the persons seeking to enter into a foster care or adoption arrangement 

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which would unite or reunite the siblings, and (2) placement of the child with his 

or her siblings is in the best interests of the children. In any proceeding brought by 

the department to maintain separation of siblings, such separation may be ordered 

only if the circuit court determines that clear and convincing evidence supports 

the department’s determination. Upon review by the circuit court of the 

department’s determination to unite a child with his or her siblings, such 

determination shall be disregarded only where the circuit court finds, by clear and 

convincing evidence, that the persons with whom the department seeks to place 

the child are unfit or that placement of the child with his or her siblings is not in 

the best interests of one or all of the children. 

Syl. Pt. 4, In re Carol B., 209 W.Va. 658, 550 S.E.2d 636 (2001). In this case, the record is 

devoid of any evidence that petitioners completed a home study or that they were suitable 

adoptive parents. The circuit court made its placement decision based upon the children’s best 

interests, as this Court has directed. We have held that “‘the best interests of the child is the polar 

star by which decisions must be made which affect children.’ Michael K.T. v. Tina L.T., 182 

W.Va. 399, 405, 387 S.E.2d 866, 872 (1989).” Kristopher O. v. Mazzone, 227 W.Va 184, 192, 

706 S.E.2d 381, 389 (2011). This Court recently held that, “[t]here 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. and L.S., -- W.Va. --, -- S.E.2d -- (May 13, 2015). 

In determining that placement of the children in petitioners’ home was not in the children’s best 

interests, the circuit court relied on petitioners psychological evaluations that found that 

petitioners should not be allowed to adopt the children. Specifically, the circuit court heard 

testimony that separating the children “would be a horrible set-back” in their treatment. The 

circuit court also heard testimony that petitioners were only interested in adopting A.H. and H.H. 

as a means to be able to adopt A.S. Further, at the time of the permanent placement hearing, the 

circuit court found that petitioners could not appropriately support A.H. and H.H. because 

petitioners do not believe that the children were sexually abused. For these reasons, we find that 

the circuit court did not err in denying placement of the children in petitioners’ home, as such 

placement was not in the children’s best interests. 

Finally, however, we recognize that the circuit court erred in granting petitioners 

visitation with A.S. “after the adoption is finalized.” We have held that “‘[this Court] may, sua 

sponte, in the interest of justice notice plain error.’ Syl. Pt. 1, in part, State v. Myers, 204 W.Va. 

449, 513 S.E.2d 676 (1998).” Syl. Pt. 2, In re K.L., 233 W.Va. 547, 759 S.E.2d 778 (2014). “To 

trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) 

that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation 

of the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). This 

Court finds that the circuit court’s order granting petitioners visitation after the adoption is 

finalized constitutes plain error, in that it is contrary to this Court’s rule of law. See Syl. Pt. 3, In 

re Hunter H., 231 W.Va. 118, 744 S.E.2d 228 (2013) (holding 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.”) (emphasis added.). Here, the record reveals that the permanent 

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placement plan for the children is adoption by a non-relative. Under the limited facts of this case, 

we find that petitioners are not entitled to grandparent visitation if the non-relative adoption is 

successful. However, this Court acknowledges that it is possible that this non-relative adoption 

might fail, and that the children are adopted by a relative, other than petitioners. For these 

reasons, we reverse and remand with directions for the circuit court to address petitioners’ 

visitation rights as they relate to A.S., in accordance with out holding set forth in In re Hunter 

H., Id. 

For the foregoing reasons, we affirm the circuit court’s January 6, 2015, order denying 

petitioner’s permanent placement of the children. However, this Court reverses the circuit court’s 

order, in part, with regard to petitioners’ post-adoption visitation of A.S. and remand the case 

with instructions to address petitioners’ visitation rights to A.S. pursuant to our holding in In re 

Hunter H., Id. 

Affirmed, in part, and reversed and remanded, in part, with directions. 

ISSUED: June 15, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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