1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re H.C. and G.C.

No. 18-0620 (Jackson County 17-JA-129 and 17-JA-130)



### MEMORANDUM DECISION

Petitioner grandmother P.P., by counsel Robert M. Williams, appeals the Circuit Court of Jackson County’s June 6, 2018, order denying her motion to intervene. 1 The West Virginia Department of Health and Human Resources (“ DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order and a supplemental appendix. The guardian ad litem (“guardian”), Ryan M. Ruth, file d a response on behalf of the ch ildren in support of the circuit court’s order. On appeal, petiti oner argues that the ci rcuit court erred in denying her custody of

H.C. and G.C. 2

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

The DHHR filed a petition against the mother and respective fathers of H.C., G.C., and H.S. alleging that H.S. suffered from non-acci dental head trauma, commonly referred to as “shaken baby syndrome.” Petitioner is the mate rnal grandmother of these children. During the proceedings, the mother was never able to provide a reasonable explanation as to how this injury occurred. During the mother’s adjudicatory heari ng, petitioner testified th at she was aware that H.S. was diagnosed with “shaken baby syndrome;” however, petitioner stated that she disagreed

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).

2 Petitioner’s brief does not comply with the West Virginia Rules of Appellate Procedure in that it does not list specific assignments of error as required by Rule 10(c)(3). Although petitioner appeals the circuit cour t’s order denying her motion to intervene, petitioner’s argument and cited authority challenges the circuit court’s fa ilure to grant her prefer ence in the permanent placement of the children. Accordingly, this deci sion addresses petitioner’s assertion that she should have been granted prefer ence pursuant to the relevant West Virginia statutory law. 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 with that diagnosis and believed that “the doctors are just not looking into the medical aspect of [H.S.’s] history.” Ultimately, the circuit court terminated the pare ntal rights of H.S.’s parents. 3

Petitioner filed a motion to intervene in June of 2016 alleging the DHHR did not consider her for permanent placement of the children. The ci rcuit court held an evidentiary hearing in August of 2016 and found that petitioner did not “a cknowledge that [H.S.] [was] a victim of shaken baby syndrome or non-accidental trau ma, despite overwhelming evidence to the contrary.” Further, the circu it court reasoned that absent an acknowledgement of abuse and neglect, petitioner was an inappr opriate custodian and not in a position to protect the children from harm. Accordingly, the circuit court denied petitioner’s motion to intervene. Petitioner did not appeal this order.

In November of 2016, the circuit court addresse d “a letter and exhibits from [petitioner] . . . seeking essentially a recons ideration of the prior decision.” However, after considering petitioner’s newly provided exhibi ts and the prior testimony, the circuit court found no new fact or circumstance that would ju stify overruling its prior deci sion. The circuit court denied petitioner’s motion. Petitioner did no t appeal this order. Ultimatel y, H.C. and G.C. were returned to their father’s custody in July of 2017 after the circuit court found that he successfully completed an improvement period. H.S. was placed in foster care and later adopted.

In August of 2017, the DHHR filed a second petit ion against the father of H.C. and G.C and the children were removed from his custody. The circuit court adjudicated the father in

October of 2017. Petitioner filed a mo tion to intervene, and the circ uit court held an evidentiary hearing in November of 2017. Petitioner presen ted evidence and argument in support of her motion to intervene. The DHHR and guardian obj ected to petitioner’s mo tion and requested the circuit court to take judicial notice of the prior abuse and neglect proceeding. Ultimately, the

circuit court found the children’s be st interests would not be serv ed by placement with petitioner “for the same reasons set forth by the [circuit] [c]ourt in denying prior intervention. [Petitioner] has not acknowledged the abuse and neglect at i ssue[.]” Accordingly, the circuit court denied petitioner’s motion to intervene. Peti tioner did not appeal this order.

In January of 2018, petitioner filed a motion to re consider the circuit court’s ruling due to a lack of sufficient notice of the prior hearing. 4 The circuit court held a second evidentiary hearing to accommodate petitione r in April of 2018. Petitioner tes tified that she successfully completed DHHR trainings and that her ho me passed a DHHR home study. Additionally, petitioner testified that she believed H.S. was the victim of non-accidental head trauma. The

DHHR worker testified that the DHHR was re quired to perform a ho me study when one is

3 The mother appealed this decision, and this Court affirmed the circuit court’s order. See In re H.C., G.C., and H.S. , No. 16-0586, 2016 WL 5900718 (W.Va. Oct. 11, 2016)(memorandum decision)

4 Although the circuit court heard petitioner’s motion to reconsider, no such action is provided by the West Virginia Rules of Pro cedure for Child Abuse and Neglect Proceedings, Chapter 49 of the West Virginia C ode, or the applicable West Virg inia Rules of Ci vil Procedure.3 requested by an individual. Despite the comple ted home study, the worker testified that DHHR continued to assert that petiti oner was an inappropriate care giver based upon her previous failure to acknowledge that H.S. was exposed to physical abuse.

Ultimately, the circuit court f ound that petitioner had a full opportunity to litigate her

motions for intervention in both this case and th e prior abuse and neglec t proceeding. The circuit court noted that petitioner failed to acknowledg e that the child was subject to non-accidental trauma in the prior case. The circuit court r easoned that, although petit ioner acknowledged that fact during the April, 2018, hear ing, petitioner did not mention th is acknowledgement during the November, 2017, hearing or in her pleadings before this date. Th e circuit court concluded that petitioner’s new acknowledgement was self-servi ng and inconsistent with her prior testimony.

The circuit court denied petitioner’s motion to in tervene in its June 6, 2018, order. Petitioner now appeals that order. 5

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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, this Court

finds no error in the proceedings below.

On appeal, petitioner argues that th e circuit court erred in relying on West Virginia Department of Health and Human Resources, ex rel Wright v. Doris S. , 197 W.Va. 489, 475 S.E.2d 865 (1996), and by not granting her preference for permanent placement of the children. In her argument, petitioner draws several f actual distinctions between this case and Wright

. However, the circuit court did not explicitly cite Wright in its final order on appeal. Rather, the circuit court highlighted petiti oner’s “failure to ac knowledge” the abuse th at was inflicted upon H.S, which is a component of this Court’s reasoning in Wright . This Court has consistently held

5 The mother’s parental rights to all of the ch ildren were previously terminated. H.C. and G.C.’s father relinquished his pa rental rights. H.S. father’s pa rental rights were previously terminated and she has been adopted. According to the parties, the permanency plan for H.C. and G.C. is adoption in thei r current foster home.4 that a parent’s failure to acknow ledge the causes of abuse and ne glect perpetuate s the danger of

abuse to their children. See In re Timber M. , 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (noting that “‘[f]ailure to acknowledge the existe nce of the problem . . . results in making the problem untreatable.’” (quoting In re Charity H. , 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004))). In her brief, petitioner admits that “[ t]he record in this case demonstrates that [p]etitioner, on two separate occasions before the [l]ower [c]ourt, failed to acknowledge that her granddaughter, H.S., was the victim of ‘shake n baby syndrome.’” Petitioner’s failure to acknowledge the abuse H.S. suffered allows the child ren to be at risk fo r further abuse in her care. Further, petitioner’s sudden acknowledgeme nt during the final hearing is unsupported by her prior testimony and the circuit court was fr ee to judge her credibility in this regard. See

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 reco rd. 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.”).

Finally, West Virginia Code § 49-4-114(a) (3), otherwise known as the “grandparent preference,” provides

[f]or purposes of any placement of a child for adoption by the department, the department shall first consider the su itability and willingness of any known grandparent or grandparents to adopt the ch ild. . . . 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.

However, “an integral part of the implementati on of the grandparent pr eference, as with all decisions concerning minor children, is the best interest of the [children].” In re Elizabeth F.

, 225 W.Va. 780, 787, 696 S.E.2d 296, 303 (2010). The circ uit court found that petitioner’s failure to acknowledge the prior physical a buse of H.S. rendered her an in appropriate caregiver for these children because they would be at risk that petitioner would overl ook further abuse if in her care. Accordingly, we find no error in the circuit c ourt’s refusal to place the children in petitioner’s

care.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 6, 2018, order is hereby affirmed.

Affirmed.

ISSUED : November 21, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment