In re A.H.

• Court: Supreme Court of Virginia
• Decision Date: 18 November 2021
• Docket Number: 21-0053,21-0055,21-0056
• Parties: In re A.H.

In re A.H.

Nos. 21-0053, 21-0055, 21-0056

Supreme Court of Appeals of West Virginia

November 18, 2021

Fayette County 18-JA-91

MEMORANDUM DECISION

In the fall of 2018, the Department of Health and Human Resources (DHHR) filed a petition alleging that an eleven-month-old infant, A.H.^[1] (the child) had been abused and neglected by her biological parents. The child was placed with foster parents C.L. and B.L., with whom she still lives, and the parental rights of the biological parents were terminated in January 2020. The court permitted ten individuals-eight family members and C.L. and B.L.-to intervene and be considered as a permanent placement for the child. After conducting a series of lengthy hearings where the intervenors testified and were cross-examined, the circuit court entered a 28-page order in which it found that a permanency plan of adoption by foster parents C.L. and B.L. served the child's best interest. The child's paternal grandparents, ^[2] paternal aunt and uncle, ^[3] and maternal grandfather, ^[4] all intervenors below, now appeal from that order (Petitioner-Intervenors). Respondents DHHR, ^[5] the guardian ad litem, ^[6] and B.L. and C.L.^[7] filed briefs in response. The child's maternal aunt and uncle^[8] and maternal grandmother, ^[9] intervenors, below, did not.

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We do not see that the circuit court's order is an abuse of its discretion. The court carefully considered the record, including Petitioner-Intervenors' testimony, to make factual findings and credibility determinations culminating in the permanency determination. The circuit court appropriately considered the statutory preference afforded to grandparents in the determination of permanency and gave due consideration to the child's paternal aunt and uncle and foster parents B.L. and C.L. For those reasons, we affirm the circuit court's order.

Upon consideration of the standard of review, the briefs, the record presented, and oral argument, the Court finds a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

I. Facts and Procedural History

We present the factual and procedural history of the child's case in three parts: petition to disposition (September 2018 to January 2020), permanency (January 2020 to December 2020), and the circuit court's order (December 2020). We set forth additional facts pertinent to the individual Petitioner-Intervenors' appeals in the analysis of their assignments of error.

A. Petition to Disposition

The child was born to mother L.J. and father H.H. in January 2018. The child was born drug-dependent, but the DHHR did not file a petition alleging abuse and neglect in view of the extant "safety plan." L.J. had complied with that plan-participating in medically assisted therapy (MAT) for her substance abuse disorder and living with the child's paternal grandparents, M.H. and T.H., in Fayette County-before the child was born, and she continued to do so after the birth.

In the late spring and summer of 2018, L.J. moved with the child back and forth between her own families' homes in Wayne County and the paternal grandparents' home in Fayette County. Two things happened in August 2018: (1) H.H., the child's father, was released from incarceration in Monongalia County to confinement in his parents' home in Fayette County, and (2) L.J. began using drugs, again. In response, the DHHR approved the child to stay in the paternal grandparents' home with H.H. and limited L.J.'s visitation with the child. Then, on August 31, 2018, H.H. overdosed on heroin in his parents' basement. L.J. was present. H.H.'s parents, M.H. and T.H., were in the house, and the child was in the home, asleep. H.H. survived the overdose.

The DHHR filed a petition on September 25, 2018, alleging that L.J. and H.H. had abused and neglected the child through their substance abuse. They later stipulated to the allegations of abuse and neglect at the November 2018 adjudicatory hearing and were adjudicated. The court ordered the child removed from the home of the paternal grandparents, M.H. and T.H., and placed with foster parents. L.J. and H.H. pursued drug treatment in December 2018. They were not successful, however, and were arrested in Virginia in January 2019 on felony drug charges.

When the matter came on for a dispositional hearing on January 31, 2019, the court continued the case to permit L.J. and H.H. to submit motions for post-adjudicatory improvement periods. Meanwhile, the child remained with foster parents, B.L. and C.L. Per an assessment by WV Birth to Three, the child demonstrated a twenty-five percent developmental delay; nonetheless, she was doing well with the foster parents and their children. The court permitted the

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paternal grandparents supervised visitation with the child. The court denied L.J. and H.H.'s motion for post-adjudicatory improvement periods in March 2019 and maintained the child's placement with B.L. and C.L. The court continued visitation between the child and the paternal grandparents and granted the DHHR and the guardian ad litem discretion to facilitate visitation between the child and other biological family members.

In June 2019, the DHHR moved to amend the abuse and neglect petition to add allegations of domestic violence and to reopen the final adjudicatory hearing. The court granted the motion. There the matter lay until November, when the Department informed the court that it could not substantiate the new allegations and that it wished to proceed on the original grounds for adjudication. The court held a dispositional hearing on January 29, 2020, during which H.H. relinquished his parental rights to the child and L.J.'s parental rights were involuntarily terminated. L.J. did not appeal the termination of her parental rights. The child remained in her placement with B.L. and C.L.

B. Disposition to Permanency

On January 10, 2020, the court permitted the child's paternal grandparents (M.H. and T.H.), paternal aunt and uncle (T.M. and D.M.), maternal aunt and uncle (K.J. and J.J.), maternal grandmother (M.H.-1), and foster parents (B.L. and C.L.) to intervene in the case and seek to become the child's permanent placement. On the same date, the court suspended visitation between the child and the non-foster parent intervenors, in anticipation of the dispositional hearing and permanency proceedings. Later in January, the court also permitted the child's maternal grandfather, D.J., to intervene.

To inform the court's permanency determination, the guardian ad litem and the DHHR interviewed the intervenors, all represented by counsel, over two days in March 2020. In her report submitted later that month, the guardian ad litem recommended that permanent placement with the foster parents was in the child's best interest and that permanent placement with the other intervenors was not. The court then conducted a series of evidentiary hearings at which the intervenors and others testified and were subject to cross-examination. On December 21, 2020, the circuit court entered an order in which it found that a permanency plan of adoption by foster parents B.L. and C.L. was in the child's best interests and that permanent placement with the other intervenors was not.

C. The Permanency Order

After reviewing the procedural history of the case and the pertinent law, the court considered the permanency cases of each intervenor, beginning with M.H. and T.H., the child's paternal grandparents.

The court acknowledged that M.H. and T.H. had served as L.J.'s "safety resource" before the petition was filed in September 2018, and that the child lived with them in the weeks after the petition was filed. But, the court found, continued placement in the home, pre-disposition, was not appropriate because H.H. had been ordered to serve home confinement there. And, the event precipitating the filing of the petition-a drug overdose-occurred in M.H. and T.H.'s home; it had been alleged that M.H. and T.H. had enabled H.H. to visit the child after the petition had been

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filed; and T.H. had brought the child to a court hearing, despite being instructed not to do so. The court acknowledged that M.H. and T.H. had visited the child, supervised, from January 2019 to January 2020.

Based on the evidence and testimony presented, the court found that T.H. had not accepted H.H.'s responsibility for his own drug abuse. Similarly, the court found that M.H. never accepted the need for H.H. to participate in inpatient rehabilitation in West Virginia, despite H.H.'s lengthy history of substance abuse and prior failed attempts at rehabilitation. Moreover, the circuit court found, M.H. and T.H. had not been truthful about their contact with H.H. or his whereabouts. Viewing all the evidence and the testimony, the court found that M.H. and T.H. were not prepared to place the needs of the child above those of H.H. The court expressed particular concern over future contact between the child and H.H., stating that "[a]lthough continued contact with [H.H.] is clearly not in the best interest of the minor child, this [c]ourt has little doubt that situational contact, and potentially even facilitated contact, will occur should the child be permanently placed" with M.H. and T.H. After stating that neither the DHHR nor the guardian supported permanent placement with M.H. and T.H., the court then found permanent placement with M.H. and T.H. not to be in the overall best interest of the child.

The circuit court next considered D.J., the maternal grandfather. The court found that he had "at best, a tenuous relationship" with the child, who had never lived with him or had contact with him beyond that incidental to contact with L.J. The court found that D.J. lived in the same home as J.J. and K.J., the child's maternal aunt and uncle. J.J. and K.J. had attempted to intervene early in the abuse and neglect proceeding....