In re P.F.

• Citation: 848 S.E.2d 826
• Decision Date: 14 October 2020
• Docket Number: No. 20-0113,20-0113
• Court: Supreme Court of West Virginia
• Parties: IN RE: P.F.

848 S.E.2d 826

IN RE: P.F.

No. 20-0113

Supreme Court of Appeals of West Virginia.

Submitted: September 15, 2020

Filed: October 14, 2020

Maggie J. Kuhl, Esq., The Kuhl Law Office, Hurricane, West Virginia, Counsel for Petitioner.

Rebecca E. Mick, Esq., Logan, West Virginia, Guardian ad Litem for the Infant child, P.F.

Patrick Morrisey, Esq., Attorney General, S. L. Evans, Esq., Assistant Attorney General, John M. Masslon, II, Esq., Assistant Solicitor General, Charleston, West Virginia, Counsel for Respondent, Department of Health and Human Resources.

ARMSTEAD, Chief Justice:

Petitioner Grandmother, P.F. ("Grandmother"), appeals the circuit court's January 7, 2020, order denying her motion to intervene in the abuse and neglect proceeding regarding her infant grandchild, P.F. ("child").¹ She argues that the circuit court erred by 1) denying her motion to intervene, 2) denying her request for custody of the child, and 3) failing to provide her with a meaningful opportunity to be heard. Grandmother notes that this Court has held that our grandparent preference statute, W. Va. Code § 49-4-114(a)(3) (2015), "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. 4, in part, Napoleon S. v. Walker , 217 W. Va. 254, 617 S.E.2d 801 (2005). Grandmother asserts that the circuit court's order "is void of any language addressing the best interest of the child."

After review, we conclude that under the specific facts of this case, a remand to the circuit court is necessary for an evidentiary hearing consistent with our ruling herein. The purpose of this evidentiary hearing is for the circuit court to comply with syllabus point four of Napoleon S. , and determine whether the preference for grandparent placement is in the child's best interest.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May of 2019, the Department of Health and Human Resources ("DHHR") filed an application for emergency custody of the then two-month old child. It appears that the child was living with her mother, M.F. ("Mother"), in the same residence as Grandmother in May of 2019. The allegations set forth in the DHHR's petition for immediate custody of the child are as follows:

It is being reported that [M.F.] is the mother to [the child]. Also, in the home is the grandmother. It is stated that [Mother] is known to have mental health issues and has had her rights terminated in the past to her other child, thought to be from those mental health concerns.... It is stated that [Grandmother] was trying to file a DVPO on [Mother] because of mental health issues and [Mother] making the statements that her and her daughter [sic] eyes were dilated from something not being right in the house, but could not elaborate on what was not right about the house or causing the condition. [Grandmother] thought that [Mother] was making the statement because of her mental health issues or because she could have been under the influence of something.

After the DHHR filed this petition, the child was placed in foster care. On October 8, 2019, Grandmother filed a motion to intervene in which she asserted the following: 1) she is the child's grandmother; 2) she recognized the severity of Mother's issues, including her extensive drug abuse and mental instability; 3) she had an approved DHHR home study; 4) she had experience with adoption and foster children; 5) she is mentally competent and physically capable of taking care of the child; 6) she will protect the child from Mother; 7) she assisted Child Protective Services in locating the child;² and 8) she had complied with all requests from the DHHR. Grandmother requested that she be allowed to intervene in this matter, that the child be placed in her custody or, in the alternative, that she receive regular visitation with the child.

The circuit court held a hearing on the motion to intervene on October 17, 2019. This was not an evidentiary hearing. However, counsel for Grandmother proffered that she "has an approved home study through the [DHHR], and has completed both the [DHHR]’s Pre-Service Homefinding Policy Orientation and the Parent Resource for Information, Development and Education classes." The DHHR and the guardian ad litem ("GAL") objected to Grandmother's motion to intervene. Further, the DHHR "objected to placement of [the child] with [Grandmother]."

By order entered on January 7, 2020, the circuit court denied the motion to intervene but ordered Grandmother to have supervised visitation with the child for two hours per week. The circuit court's order also provided that Grandmother "desires both temporary and permanent placement of the subject child, and that she could enjoy preferred status for such request as biological grandparent, the Court directs [DHHR] to consider her for temporary placement – to consider both her appropriateness as a care-giver and the adequacy or safety of her home." While the circuit court's order noted that the DHHR and GAL objected to Grandmother's request that the child be placed in her custody, the order does not state the basis for their objections. Regarding placement, the circuit court ordered that "[t]he status quo [i.e. the foster care placement] shall be maintained regarding custody and placement of [the child] until further Order of the Court."

Following entry of the circuit court's order, Grandmother filed the instant appeal.³

II. STANDARD OF REVIEW

This matter originated as an abuse and neglect case filed by the DHHR against the biological parents of the child. According to the DHHR, the parental rights of both biological parents have now been terminated. However, the circuit court's termination of the parents’ parental rights is not addressed in this appeal. Instead, the matter before this Court involves Grandmother's attempt to intervene and to be considered as a placement option for the child.

Generally, "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo. " Syl. Pt. 1, Napoleon S. v. Walker , 217 W. Va. 254, 617 S.E.2d 801 (internal citation omitted). Additionally, "[q]uestions relating to ... custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syl., in part, Nichols v. Nichols , 160 W. Va. 514, 236 S.E.2d 36 (1977). Further, "[i]n ... custody matters, we have traditionally held paramount the best interests of the child." Syl. Pt. 5, in part, Carter v. Carter , 196 W. Va. 239, 470 S.E.2d 193 (1996).

This case requires us to examine our grandparent preference statute, W. Va. Code § 49-4-114(a)(3). We have held that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm'n , 209 W. Va. 83, 543 S.E.2d 364 (2001) (internal citation omitted). Mindful of these applicable standards, we now consider the parties’ arguments.

III. ANALYSIS

This case presents a number of overlapping procedural and substantive concerns regarding our grandparent preference statute, and a party's right to be heard in an abuse and neglect proceeding pursuant to W. Va. Code § 49-4-601(h) (2019). The issues can be placed into two broad categories: 1) Grandmother's ability to participate in the abuse and neglect proceeding, and 2) the application of the grandparent preference statute to the specific facts of this case.⁴ Before addressing these two issues, we emphasize 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) (citation omitted).

The first issue is whether Grandmother had a right to be heard in the abuse and neglect proceeding pursuant to W. Va. Code § 49-4-601(h). It provides:

(h) Right to be heard. In any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. Foster parents, preadoptive parents, and relative caregivers shall also have a meaningful opportunity to be heard.

This Court has previously recognized that W. Va. Code § 49-4-601(h) establishes a "two-tiered framework." State ex rel. R.H. v. Bloom , No. 17-0002, 2017 WL 1788946, *3 (W. Va. May 5, 2017) (memorandum decision). In State ex rel. H.S. v. Beane , 240 W. Va. 643, 647, 814 S.E.2d 660, 664 (2018), the Court discussed this "two-tiered framework" as follows:

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."

See W. Va. Code § 49-4-601(h). In contrast, however, "[f]oster parents, preadoptive parents, and relative caregivers" are only granted the right to "a meaningful opportunity to be heard."

In the instant case, we find that Grandmother does not fit into any of the categories set forth in W. Va. Code § 49-4-601(h). During oral argument in this matter, counsel for Grandmother conceded that she is not a party having custodial rights or responsibilities which would entitle her to the greater rights set forth in the first sentence of W. Va. Code § 49-4-601(h). She also conceded that Grandmother did not claim to be a "relative caregiver," which would entitle her to the right to "a meaningful opportunity to be heard" set...