STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: N.C. & B.B. November 26, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-0605 (Cabell County 09-JA-67 & 68) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Paternal Grandmother G.M., by counsel A. Courtenay Craig, appeals the Circuit
Court of Cabell County’s order entered on May 24, 2013, denying her motion for relief from
judgment.1 The guardian ad litem, Cathy L. Greiner, has filed her response on behalf of the
children in support of the circuit court’s order. The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Michael L. Jackson, filed a response in support of the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in denying her
motion for relief from judgment because it previously failed to comply with the requirements for
notice in regard to dispositional hearings, and because she was not afforded a dispositional
hearing in regard to permanent placement or a right to be heard at disposition.2
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
1
The abuse and neglect proceedings below concerned two children. On appeal, however,
petitioner seeks custody of B.B. only. As such, only the circuit court’s rulings in regard to this
child will be addressed in this memorandum decision. Further, the Court notes that Mr. Craig
represented petitioner’s son, the father of B.B., in his related criminal action and in his appeal of
the termination of his parental rights to this Court.
2
Petitioner additionally alleges error in regard to the circuit court’s February 22, 2010,
order awarding temporary placement of the children with the maternal grandmother and the
subsequent denial of her motion to reconsider that order. However, the Court declines to address
any alleged error in regard to either the temporary placement order or the order denying her
motion for reconsideration because the issue of temporary placement is moot in light of the
subsequent final order permanently placing the children with the maternal grandmother. Further,
petitioner’s assignment of error alleging that both her motion to reconsider temporary placement
and her Rule 60(b) motion were timely filed and should both be considered Rule 60(b) motions
does not require discussion on appeal. In light of our decision to not address the orders regarding
temporary placement, and because the Rule 60(b) motion was not denied due to untimely filing,
this assignment of error is without merit.
1
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The instant petition was filed after B.B.’s father stabbed and killed the children’s mother
while B.B. slept in the next room. Based on this action, he was adjudicated as a neglectful parent.
Initially, the children were both placed with petitioner, B.B.’s paternal grandmother, and
petitioner intervened in the abuse and neglect proceedings below. However, after reports of poor
and disparate treatment to N.C., the children were moved to foster care, and then eventually
placed together with their maternal grandmother, J.C. Throughout the proceedings, the children’s
counselor, the guardian, the DHHR, and the circuit court agreed that the children should remain
together. During the proceedings, petitioner made numerous attempts to regain custody of B.B.
only, indicating that she was not interested in obtaining custody of N.C. These requests were
denied based on the circuit court’s order that the children remain placed together and the DHHR’s
finding that the maternal grandmother was a proper placement for both children.
After several continuances, the father was convicted of voluntary manslaughter and
concealing a dead body in relation to the stabbing death of the children’s mother.3 The circuit
court found that, based on this conviction, the case constituted aggravated circumstances and
terminated the father’s parental rights. The children were to continue their placement with the
maternal grandmother, with whom they had both lived for approximately two years at the time of
disposition, while petitioner was granted visitation. The Court notes that petitioner did not appeal
the order terminating the father’s parental rights and ordering placement with the maternal
grandmother.4
In October of 2012, petitioner filed a motion for relief from judgment in regard to the
circuit court’s placement order. Thereafter, the circuit court held a hearing on petitioner’s motion
wherein petitioner argued for additional discovery and more testimony regarding the children’s
relationship and home life. The circuit court reiterated its desire for the children to remain
together and noted that petitioner did not want custody of both children. The circuit court then
denied petitioner’s motion. It is from the subsequent order that petitioner appeals.
We have previously held that
“[a] motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is
addressed to the sound discretion of the court and the court’s ruling on such
motion will not be disturbed on appeal unless there is a showing of an abuse of
3
Petitioner appealed his conviction to this Court and the same was affirmed by
memorandum decision. State v. Blevins, No. 12-0438 (W.Va. Supreme Court, June 24,
2013)(memorandum decision).
4
The father did appeal the termination of his parental rights, and this Court affirmed the
same by memorandum decision. In re N.C. and B.B., No. 12-0250 (W.Va. Supreme Court, Sept.
24, 2012)(memorandum decision).
2
such discretion.” Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85
(1974).
Syl. Pt. 1, Delapp v. Delapp, 213 W.Va. 757, 584 S.E.2d 899 (2003). Further, in regard to the
scope of our review on such rulings, we have stated that “‘[a]n appeal of the denial of a Rule
60(b) motion brings to consideration for review only the order of denial itself and not the
substance supporting the underlying judgment nor the final judgment order.’ Syllabus point 3,
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Syl. Pt. 3, Jividen v. Jividen, 212 W.Va.
478, 575 S.E.2d 88 (2002). Based upon this standard of review, the Court declines to grant
petitioner relief in regard to any of her assignments of error.5
The scope of review on this appeal prohibits analysis of the substance of the underlying
final order in regard to placement. That being the case, our review is limited to an analysis of the
order denying petitioner’s motion for relief from judgment made pursuant to Rule 60(b) of the
West Virginia Rules of Civil Procedure. As noted above, the circuit court held a hearing on
petitioner’s motion wherein she argued for additional discovery and more testimony regarding the
children’s relationship with one another and their home life. The circuit court also heard
petitioner’s allegations that newly discovered evidence was available in the form of reports that
the guardian and a social worker allegedly withheld and that other alleged inaccuracies regarding
the children’s histories, which petitioner alleged amounted to mistakes in fact and fraud,
prohibited a proper placement determination.
In denying petitioner’s motion for relief from judgment, the circuit court specifically
stated that it would not be inclined to alter the children’s placement even “giving [petitioner] the
benefit of the doubt.” Simply put, the circuit court was correct that the children’s best interest
required undisturbed permanency with the maternal grandmother. We have previously held that
“[i]n a contest involving the custody of an infant the welfare of the child is the polar star by which
5
The Court notes that, on appeal, petitioner’s argument is primarily based on an allegation
that the circuit court failed to hold a dispositional hearing in regard to the children’s permanent
placement and that she was not afforded an opportunity to be heard. We decline to address these
allegations for several reasons. First, such an allegation would not entitle petitioner to relief under
any of the factors set forth in Rule 60(b) of the West Virginia Rules of Civil Procedure. Second,
even if this were an appropriate ground for relief under that rule, we have already addressed the
issue of the circuit court’s appropriate dispositional hearing. In affirming the termination of the
father’s parental rights, this Court noted that his allegation that a proper dispositional hearing was
never held was meritless. In fact, we noted that the DHHR filed a notice that it was moving for
the termination of the father’s parental rights and a specific hearing was held on the same. This
hearing was continued at least once, based on the continuances in the related criminal action,
without petitioner ever objecting. In total, the abuse and neglect proceedings below were
continued for more than two years, and it is clear from the record that petitioner had numerous
opportunities to be heard, and was, in fact, heard. Petitioner was present and represented by
counsel at all hearings since her motion to intervene was granted, and was allowed to present
evidence, question witnesses, and generally make her position known.
3
the discretion of the court will be guided.” Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va.
302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492
(2003). It is clear that the circuit court made its determination in light of the children’s best
interest, specifically stating that it was “satisfied [the children’s] placement with the maternal
grandmother meets this goal.” As such, we find no abuse of discretion in the circuit court denying
petitioner’s motion for relief from judgment.
For the foregoing reasons, we find no error in the decision of the circuit court and its May
24, 2013 order is hereby affirmed.
Affirmed.
ISSUED: November 26, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4