In re N.S.

• Decision Date: 12 May 2022
• Docket Number: 21-1003
• Parties: In re N.S., D.S., A.S., and J.S.
• Court: West Virginia Supreme Court

In re N.S., D.S., A.S., and J.S.

No. 21-1003

Supreme Court of Appeals of West Virginia

May 12, 2022

(Barbour County 19-JA-117, 19-JA-118, 19-JA-119, and 19-JA-120)

MEMORANDUM DECISION

Petitioners C.B. and J.B., by counsel Steven B. Nanners, appeal the Circuit Court of Barbour County's November 18, 2021 order denying their motion to intervene in the proceedings and for permanent placement of N.S., D.S., A.S., and J.S.^[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Katica Ribel, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Allison C. Iapalucci, filed a response on the children's behalf in support of the circuit court's order. On appeal petitioners argue that the circuit court erred in denying their motion to intervene and for permanent placement of the children.

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 September of 2019, the DHHR filed a child abuse and neglect petition alleging that the children's parents failed to supply the children with a suitable home and exposed the children to domestic violence. Upon the filing of the petition, the DHHR placed the children with petitioners, who are the children's maternal grandparents, and the children remained in this placement throughout the abuse and neglect proceedings. The parents were granted improvement periods but ultimately failed to remedy the conditions of abuse and neglect. The circuit court involuntarily terminated the parents' parental rights to the children in April of 2021. The circuit court ordered no contact between the children and their parents, and petitioners were informed of that order. At the time of the dispositional hearing, the children had been in petitioners' care for over eighteen months.

Subsequent to the dispositional hearing, the DHHR received a referral that the biological parents continued to have contact with the children in violation of the circuit court's order, that the mother was living on petitioners' property, and that the children were living in deplorable conditions while in petitioners' care. The DHHR investigated the allegations and substantiated them, which led to the removal of the children from petitioners' custody on May 24, 2021.^[2]

On June 24, 2021, petitioners filed a motion to intervene in the proceedings and for the return of the children to their custody. In their motion, they denied any wrongdoing and alleged that the DHHR erroneously removed the children from their care.^[3] During the hearing on petitioners' motion, the DHHR's internal investigation unit report ("IIU report") was admitted as evidence. According to the IIU report, the mother and father continued to reside in the same neighborhood as the children after the termination of their parental rights. On May 9, 2021, the parents were involved in a domestic violence altercation outside of petitioners' residence, and the mother drove over the father with her vehicle. The children were home at the time and aware of the incident, although they were ordered by petitioners to stay inside while Petitioner J.B. attended the scene. Then, on May 24, 2021, the mother was found hiding in petitioners' camper on their property during a DHHR investigation. The children indicated that Petitioner C.B. told them that they could see the mother after the children were adopted. However, until then, the children were reportedly required to leave the room when the mother visited the home.

The DHHR also reported that the children stated they were "not allowed to talk about things that happened at grandma's [petitioners'] home. . . . [t]hey are not allowed to talk about the bed bugs, their parents fighting, they are not allowed to talk about anything." Nevertheless, the children disclosed that J.S. and D.S. bathe together and A.S. and N.S. bathe after them, using the same bath water. Eleven-year-old N.S. was "allowed to add clean water, only to wash her hair." The children were observed with "dirty hands and face[s]" at their school with clothes that did not fit and shoes with holes in them.

Finally, the DHHR reported that petitioners' home was in a deplorable state. Outside of the home, the investigator observed dangerous objects, such as boards with nails protruding outward and sharp metal pieces in the grass. Inside the home were "massive amounts of clutter, debris, food, unsecured medications, [and] sharp objects." The children's rooms were "completely covered in clothing, objects, and loose bedding" and their beds had no sheets. The report also noted that "[a]ll counter and table areas were covered in household clutter and debris." Ultimately, the DHHR concluded that the children were neglected in petitioners' care and terminated the foster care arrangement.

At the hearing, the circuit court heard from the guardian regarding her investigation into the allegations, along with testimony from both petitioners and a DHHR worker. The guardian stated that she met with the children at their school, and the children disclosed that they had contact with their mother with petitioners' knowledge and consent. The guardian also agreed with the DHHR's assessment that the home was in deplorable condition. The guardian met with the children after they had been placed in a new foster home, and the children "specifically asked not to be removed" from that home. She stated that N.S. was the only child who expressed a desire for continued contact with Petitioner C.B. "but only so long as she [was] permitted to reside with the [new foster] family."

Petitioners both denied that the mother was staying in the camper on their property. Petitioner C.B. testified that she discovered the mother in the camper early in the morning on the day that the DHHR came to investigate. She testified that she told the mother to leave, the mother refused, and she took no further action. Petitioner C.B. asserted that the mother had no contact with the children, and if the children stated otherwise, they were lying. Both petitioners also testified that they believed the children became dirty at school, rather than as a result of neglectful care.

The DHHR worker testified that, when the children were removed from petitioners' care, the children had to be "cleaned and re-clothed" with emergency clothing kept at the DHHR office. She also believed that the dirt apparent on the children was not consistent with dirt accumulation from a day at school. According to the DHHR worker, she always notified petitioners when she would inspect their home. She explained that the household was always dirty; she discussed clothing with petitioners during each visit, but those conditions never improved.

Following the presentation of evidence, petitioners and counsel were excused from the courtroom. The court weighed petitioners' testimony against the proffer of the guardian and the DHHR's IIU report and concluded that petitioners were not being truthful. The circuit court noted that it could not understand why the children would fabricate contact with their mother and found that petitioners were aware that the children were not permitted contact with their parents. The court found that petitioners' home was in "the same condition[]" it was when the children were removed from their parents. The court held its ruling in abeyance, waiting to hear testimony from the author of the DHHR's IIU report. Following the receipt of an affidavit from the author of the DHHR's IIU report, affirming the veracity of the original report, the circuit court denied petitioners' motion to intervene and for permanent placement of the children in their care. The circuit court's November 18, 2021, order memorialized its decision. Petitioners now appeal this order.^[4]

The Court has previously held:

"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, petitioners argue that the circuit court erred in denying their motion to intervene and for permanent placement of the children. In support of intervention, petitioners stress that the children had been in their care from September of 2019 until May of 2021, in excess of eighteen months. They argue that the circuit court did not provide them a meaningful opportunity to be heard, pursuant to West Virginia Code § 49-4-601(h), because they were not permitted to...