In re W.B., 20-0949
| Decision Date | 03 June 2021 |
| Docket Number | No. 20-0949,20-0949 |
| Court | West Virginia Supreme Court |
| Parties | In re W.B. III |
Petitioners S.S. and R.S., by counsel Shannon R. Thomas, appeal the Circuit Court of Randolph County's October 27, 2020, order denying them permanent placement of W.B. III.1 The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem, Heather M. Weese, filed a response on the child's behalf in support of the circuit court's order. On appeal, petitioners argue that the circuit court erred in failing to adhere to the procedural requirements for modifying a dispositional order and in finding that modifying the final dispositional order was in the child's best interests and a result of a substantial change in circumstances.
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 November of 2017, the DHHR filed a child abuse and neglect petition alleging that the mother and father had abused or neglected then newborn W.B. III. Upon release from the hospital, the child was placed with petitioners, the maternal grandparents of the child, where heremained throughout the proceedings.2 In January of 2018, the circuit court adjudicated the parents as abusing parents. At a dispositional hearing in February of 2019, the parents ultimately voluntarily relinquished their parental rights to the child. The circuit court accepted their relinquishments, terminated their parental rights to the child, and granted permanent custody of the child to the DHHR. The circuit court also granted the father post-termination visitation with the child, to be supervised by a service provider. Following the termination of the parents' parental rights, the circuit court also conducted a permanency hearing and determined that the most appropriate permanency plan for the child was adoption by petitioners. The circuit court found that the DHHR was making reasonable efforts to finalize the child's permanency plan, and the child continued in petitioners' care.
In January of 2020, the circuit court held a permanency hearing, and the DHHR disclosed that the child was removed from petitioners' care "due to allegations concerning the maternal grandmother's inappropriate interactions with the child's biological father." The father had been incarcerated in December of 2019 after an alleged attempt to run over the child's mother and set her on fire. While incarcerated, the father continued to call the child at petitioners' home, and their conversations, which were recorded by the jail, were the basis for the child's removal. According to the DHHR, the recorded calls raised concerns that petitioners were inappropriately physically disciplining the child and permitting inappropriate contact between the child and the parents. As a result of these concerns, the DHHR removed the child from petitioners' care in late December of 2019. The circuit court set a date for an evidentiary hearing on the child's permanent placement, and the child remained in foster care pending that hearing.
Following a series of delays related to petitioners' retainment of counsel and the COVID-19 pandemic, the circuit court held the evidentiary hearing in August of 2020. The circuit court heard evidence in support of the DHHR's recommended permanency plan, which was adoption by the child's current foster family. The DHHR also introduced recordings of the grandmother's recorded conversations with the father, and those recordings were admitted without objection. Petitioners moved for the child to be returned to their custody for adoption and presented the testimony of several witnesses, including the grandmother, in order to explain the grandmother's statements to the father during the recorded phone calls.
The circuit court was concerned that petitioners continued to allow the father to have contact with the child after he had been charged and incarcerated for crimes against the child's mother (petitioners' daughter). The court noted that while the father was incarcerated, the grandmother verbalized that she would never keep the child away from him (, "I ain't going to keep him from ya, you know that"). The circuit court considered the grandmother's testimony that she believed she had to allow contact between the father and child per the court's order for visitation and found it concerning that she did not "at least inquire if she could cut off contact" with the father after his incarceration for violent crimes against the mother. In one call, the father told the grandmother that he would "f***ing kill" the child's mother and made other"angry and vulgar statements" about the mother, yet the grandmother then put the child on the phone with the father and did not deem the contact to be inappropriate.
The circuit court also found that the grandmother had facilitated contact between the father and child, as well as contact between the father and mother while he was incarcerated. The grandmother "put money on [the father's] books" so that he could make phone calls and also helped the father activate a phone in the mother's possession so that he could call her as well. Notably, due to the nature of the father's charges, he was not permitted to have contact with the mother. The court observed that the grandmother testified that the money she "put on [the father's] books for phone calls was money that she had collected for him after his incarceration and that [was] what he asked her to do with it." However, the circuit court was troubled that the grandmother would find it appropriate to collect money for the father, accept his calls, facilitate calls with the child and the mother, or conduct any business for the father in light of the allegations against him. It found that "[i]t was clear from the phone calls that [petitioners] were assisting [the father] with a number of personal matters during his incarceration." Related to the grandmother facilitating contact between the father and the mother, the circuit court recounted the father "pleading with [the grandmother] to encourage her to have [the mother] change her story regarding the events that led to his incarceration and that [the grandmother] did in fact do so."
The circuit court noted its concern that the grandmother would allow the father to have unsupervised contact with the child and had permitted the mother to have contact as well. During the recorded calls, the grandmother told the father that she would not allow the child to stay with the mother unless he was there. The grandmother also admitted that the mother had seen the child once when she visited the father's home, stating, The court also noted that, during a different call, the grandmother stated that if the mother wanted to see the child "she'll have to come down here and see him."
Related to the DHHR's concern that the grandmother engaged in physical discipline of the child, which was prohibited by foster care policy, the circuit court found that during one conversation, the father stated, "yeah, bust [the child's] . . . a** for him, Let him know." The grandmother replied, "Oh, I did." Later in that same call, the grandmother yelled at the children while on the phone with the father, stating (Emphasis removed.)3
Finally, the circuit court weighed the grandmother's testimony that she "only communicated and/or assisted [the father] . . . because she wanted to make him think that she was still on his side so that he would not interfere with her adoption of the child and that she was lying to [the father]." The court noted that this "rationalization ha[d] been offered by [thegrandmother] after the insinuating communications ha[d] come to light." Rather than believe the grandmother was lying to the father, the court "chose to let [the grandmother's] recorded communications with [the father] speak for themselves."
Ultimately, the circuit court found that "there were clearly a number of legitimate concerns raised by the phone call [recordings] supporting the [DHHR's] removal of the child from [petitioners]." The court noted that petitioners were fully aware of the potential ramifications of allowing inappropriate contact as the child was removed once during the pendency of the abuse and neglect proceeding due to allegations of inappropriate contact with the parents. Despite knowing this, the circuit court found that there was "clear and convincing evidence that [petitioners] thereafter still allowed unauthorized contact with [the mother]." The court concluded that petitioners' failure "to recognize the inappropriateness of the continued contact between the child and [the father]," failure "to take action to cease all contact," and "their actions to continue to assist [the father] with personal matters, including facilitating continued contact between [the father] and the victim of his alleged crime," raised serious questions about petitioners' "judgment and ability to ever be able to protect the child." Thus, the circuit court determined that it was not in the child's best interests to be placed with petitioners and found that it was in the child's best...
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