In re A.L.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re A.L. FILED
April 6, 2020
No. 19-0747 (Putnam County 17-JA-27) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioners D.L. and S.L., A.L.’s paternal aunts, by counsel David L. Hill and Jeff C.
Woods, respectively, jointly appeal the Circuit Court of Putnam County’s July 16, 2019, order
denying them placement of A.L. 1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel John M. Masslon II, filed a response in support of the circuit
court’s order. The guardian ad litem, Maggie J. Kuhl, filed a response on behalf of the child in
support of the circuit court’s order. Finally, respondents R.H. and M.H., the child’s foster
parents, by counsel Jacquelyn S. Biddle, filed a response in support of the circuit court’s order.
On appeal, petitioners argue that the circuit court erred in denying them custody of A.L. based on
inaccurate home study reports and that the court’s errors denied them due process. They further
argue that the circuit court denied them a meaningful opportunity to bond with the child. 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
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
Petitioners identified twelve distinct assignments of error, but addressed all twelve
alleged errors in a single argument section. Although petitioners’ assignments of error have been
reformulated for clarity in this decision, their entire argument has been addressed.

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 In March of 2017, the DHHR filed a child abuse and neglect petition alleging that A.L.
was abused and neglected by his parents. 3 The child was removed from his parents’ custody and
placed with respondent foster parents where he remained throughout the proceedings. Following
several hearings, the circuit court terminated A.L.’s mother’s parental rights in September of
2017, and granted his father an improvement period. However, A.L.’s father passed away in May
of 2018. Following the death of A.L.’s father, petitioners moved separately for custody of the
child. Because petitioners resided in Michigan, the circuit court ordered that investigations of
their homes be completed pursuant to the Interstate Compact on the Placement of Children
(“ICPC”). Petitioners also requested visitation with the child. However, the circuit court found
that petitioners had had no contact with the child for over a year and, because they were traveling
back to Michigan the next day, the DHHR did not have sufficient time to organize a visitation.
Instead, the circuit court ordered that regularly scheduled video visitation occur between
petitioners and the child. The circuit court also appointed counsel for both petitioners.

In December of 2018, the circuit court received the home studies from the Michigan
Department of Health and Human Services (“MDHHS”), which recommended against placing
the child with either petitioner. Petitioners challenged the findings of the home studies and
requested the opportunity to present evidence, which the circuit court granted. D.L. contested the
MDHHS findings that she did not have the financial ability to care for A.L. She testified that she
earned approximately $1,800 a month, which left $900 dollars per month after payment of her
monthly expenses. However, the MDHHS found that D.L. earned only $900 dollars per month,
as evidenced by paystubs that D.L. provided to that agency. Although D.L. testified the paystubs
were irregularly small due to an advance she requested from her employer, she presented no
other paystubs to verify her testimony of additional income. Further, D.L. testified that she
would require public assistance or donations to care for A.L., including assistance to provide
food and a car seat. S.L. testified that she, too, believed that the home study was inaccurate in
regard to her income and findings that her family could not meet their financial obligations.
However, S.L. admitted to a prior domestic violence incident between her and her current
partner, which caused the circuit court concern.

The circuit court also heard testimony from A.L.’s treatment professionals who opined
that the child, who had originally exhibited signs of developmental delays, had made significant
improvement over the pendency of the proceedings while in the care of his foster parents.
“Testimony provided indicated that [A.L.] has thrived in his current placement improving his
non-verbal skills, social interaction, language and speech skills, and other educational
improvements.” Further, the court found that A.L.

formed a close bond with [respondent foster parents], which he has not exhibited
with his paternal aunts. [A.L.] identifies [his foster parents] as his family, and he
exhibits the love and trust associated with the family with [his foster parents].
Conversely, [A.L.] has limited interaction with his paternal aunts and exhibits
little to no bond with them.

3
The specific allegations of abuse and neglect are not apparent from the record on appeal.

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 Ultimately, the circuit court found that it was in A.L.’s best interest to remain with the
respondent foster parents. In reaching this conclusion, the circuit court reasoned that petitioners’
argument “essentially boils down to the idea that their blood relation to [A.L.] should trump all
other considerations; the relevant statutes and case law do not support this position.”
Accordingly, the circuit court denied petitioners’ requests for custody and granted custody to
respondent foster parents. The circuit court’s July 16, 2019, order memorialized this decision,
and 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). Upon review, this Court finds
no error in the proceedings below.

On appeal, petitioners argue that the circuit court erred in denying them custody of the
child despite their blood relation. According to petitioners, the circuit court relied on the
MDHHS home studies, which were clearly inaccurate. Before adopting the home studies of the
MDHHS, petitioners argue that the circuit court should have “exercised its independent due
diligence and determined whether the recommendations contained therein where made on the
best available evidence.” Petitioners argue that the circuit court’s failure to do so is a denial of
their right to due process. We find that petitioners are entitled to no relief in this regard.

The circuit court did not violate petitioners’ right to due process; in fact, petitioners were
provided more procedural safeguards than required by our prior holdings. This Court has found
that the

4
A.L.’s mother’s parental rights were terminated during the proceedings below; his father
is deceased. According to the parties, the permanency plan for the child is adoption by the
respondent foster parents.

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 “[a]pplicable standards for procedural due process, outside the criminal area, may
depend upon the particular circumstances of a given case. However, there are
certain fundamental principles in regard to procedural due process embodied in
Article III, Section 10 of the West Virginia Constitution, which are: First, the
more valuable the right sought to be deprived, the more safeguards will be
interposed. Second, due process must generally be given before the deprivation
occurs unless a compelling public policy dictates otherwise. Third, a temporary
deprivation of rights may not require as large a measure of procedural due process
protection as a permanent deprivation.” Syl. Pt. 2, North v. Bd. Of Regents, 160
W.Va. 248, 233 S.E.2d 411 (1977).

Syl. Pt. 5, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014). “The fundamental requirement of
procedural due process in a civil proceeding is ‘the opportunity to be heard at a meaningful time
and in a meaningful manner.’” Id. at 402, 758 S.E.2d at 755 (quoting Mathews v. Eldridge, 424
U.S. 319 (1976)).

In the context of abuse and neglect proceedings, West Virginia Code § 49-4-601(h)
establishes a “two-tiered framework” of parties that enjoy the procedural due process right of a
meaningful opportunity to be heard. See State ex rel. H.S. v. Beane, 240 W. Va. 643, 647, 814
S.E.2d 660, 664 (2018). Specifically, 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.” W. Va. Code § 49-4-601(h). Further, we
have explained that “[a] person ‘who obtains physical custody after the initiation of abuse and
neglect proceedings—such as a foster parent—does not enjoy the same statutory right of
participation as is extended to parents and pre-petition custodians.’” Beane, 240 W. Va. at 648,
814 S.E.2d at 665 (quoting State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL 1788946 at *3
(W. Va. May 5, 2017)(memorandum decision)) (emphasis added). These individuals—foster
parents, pre-adoptive parents, and relative caregivers—are entitled to a meaningful opportunity
to be heard only and are not entitled to an opportunity to testify and to present and cross-examine
witnesses. W. Va. Code § 49-4-601(h).

Notably, petitioners are not classified as any of the above-listed individuals entitled to the
greater participation rights afforded those with custodial or other parental rights or
responsibilities. Petitioners are blood relatives, but they did not care for the child prior to his
removal. Yet, the circuit court provided petitioners with the highest standard of procedural due
process for abuse and neglect proceedings—a meaningful opportunity to be heard and the
opportunity to testify and to present and cross-examine witnesses. On appeal, petitioners attempt
to derive a greater due process right through this Court’s prior holdings, 5 but cite to no authority
5
In doing so, petitioners argue that “[a] [g]randparent or an adult relative with a positive
home study certifying the home for adoption must be given preference over the non-relative
home even if the non-relative home has the appearance of a better placement choice.” Kristopher
O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381, 389 (2011) (emphasis added). Petitioners
argue that, because a positive home study was critical to their preference in placement of A.L.,
the circuit court denied them due process by considering the allegedly inaccurate home study.

(continued . . . )
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that requires the circuit court to provide any more meaningful opportunity to be heard than an
opportunity equal to what would be provided to the child’s parents.

In considering whether the circuit court erred in denying petitioners custody of the child,
we first note that

[o]nly two statutory familial preferences applicable to the adoption of a
child are recognized in this State: (1) a preference for adoptive placement with the
child’s grandparents set forth in W. Va. Code § 49-4-114(a)(3) (2015) and (2) a
preference for placing siblings into the same adoptive home pursuant to W. Va.
Code § 49-4-111 (2015). Apart from the grandparent and the sibling preferences,
there does not exist an adoptive placement preference for a child’s blood
relatives, generally.

Syl. Pt. 2, In re K.L., 241 W. Va. 546, 826 S.E.2d 671 (2019) (emphasis added). Accordingly,
petitioners are incorrect to rely on their blood relation to A.L. granting them any preferential
treatment under West Virginia law. Further, “the welfare of the infant is the polar star by which
the discretion of the court is to be guided in making its award of legal custody.” Id. at 548, 826
S.E.2d at 673, syl. pt. 3, in part. Therefore, the circuit court was tasked with deciding which
placement would be in A.L.’s best interest without any preference to any party.

Contrary to petitioners’ argument, the circuit court did not simply adopt the
recommendation of the MDHHS home studies, as evidenced in the circuit court’s final order:
“the decision to place [A.L.] in the custody of one of his aunts is more extensive than whether
the relevant home study is acceptable.” Rather, the home studies were properly considered in
determining what placement would be in A.L.’s best interest and petitioners were permitted the
opportunity to contradict those studies. The circuit court found that “[a]lthough the testimony of
[D.L.] and [S.L.] explained a number of the issues presented in the home studies, there are still
significant concerns regarding the paternal aunts’ ability to provide a stable home for [A.L.]”
Among these concerns were D.L.’s financial ability to care for A.L., as she admitted that public
assistance or donations would be necessary for his care. In regard to S.L., the circuit court noted
its concern over her admitted domestic violence incident with her current partner and her failure
to participate in the video visitation with A.L. In comparison, the respondent foster parents
exhibited a loving and bonded environment that was attentive to A.L.’s special needs. The
evidence revealed that A.L. “formed a bond with [his foster parents] that resembles a familial
bond,” while exhibiting “little to no bond with [his aunts].” In considering these competing
opportunities for adoptive placements, we find that circuit court did not err or abuse its discretion

However, the above-quoted section is not this Court’s holding in Mazzone, but, rather, a section
of the DHHR’s adoption policy that we considered on appeal. Id. at 196, 706 S.E.2d at 393
(holding that petitioner foster parents were improperly denied notice and an opportunity to be
heard regarding placement of their foster child). As more fully explained herein, adult relatives
are not granted a preference for adoptive placement pursuant to the West Virginia Code.

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in placing A.L. with a family with which he was bonded and thrived in their home because such
a placement was in the child’s best interest. 6

Petitioners, in pursuit of their argument on appeal, make multiple assertions that the
circuit court should have required the investigating MDHHS officials to appear and testify
regarding the accuracy of their reports. Petitioners incorrectly assert that in “In re Aaron H., [229
W. Va. 677, 735 S.E.2d 274 (2012)], . . . the Court noted that individuals conducting a home
study under the [ICPC] could be required to appear before the Court.” Frankly, Aaron H. does
not address requiring the individuals who completed an ICPC home study to testify. Instead, “the
sole issue before [the] Court in [Aaron H.] [was] whether . . . the circuit court erred in placing
the child with his foster parents for adoption rather than with his grandfather.” Id. at 681, 735
S.E.2d at 278. Moreover, petitioners do not cite to a request for those individuals to testify and
provide no authority that required the circuit court to request that evidence sua sponte. Likewise,
petitioners assert that additional home studies were necessary prior to the circuit court’s ultimate
determinations, but they provide no citation to any such request made to the circuit court. Both of
these arguments appear to be issues raised for the first time on appeal. “‘Our general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer
v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).”
Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009).
Accordingly, these alleged errors will not be considered.

Finally, we address petitioners’ argument that the circuit court denied them a meaningful
opportunity to bond with the child. Rule 15 of the West Virginia Rules of Procedure for Abuse
and Neglect Proceedings addresses reasonable visitation when a child is removed from their
home:

If at any time the court orders a child removed from the custody of his or her
parent(s) and placed in the custody of the Department or of some other
responsible person, the court may make such provision for reasonable visitation,
telephone or video calls, letters, email, or other communication as is consistent
with the child’s well-being and best interests. The court shall assure that any
supervised visitation shall occur in surroundings and in a safe place, dignified,
and suitable for visitation, taking into account the child’s age and condition. The
person requesting visitation shall set forth his or her relationship to the child and
the degree of personal contact previously existing with the child. In determining
the appropriateness of granting visitation rights to the person seeking visitation,
the court shall consider whether or not the granting of visitation would interfere
6
Petitioners argue that the DHHR “failed to establish or prove how placing [A.L.] with
[them] would be contrary to his best interest,” but this argument is unsupported by West Virginia
case law. As more fully explained herein, circuit courts are not bound to place a child with any
blood relative and there is no requirement that placement with a blood relative be contrary to the
child’s best interests to deny placement to that relative. See Syl. Pt. 2, In re K.L., 241 W. Va.
546, 826 S.E.2d 671 (2019). Rather, the necessary determination is what placement would best
serve the child’s welfare. See id. at 547, 826 S.E.2d at 671, syl. pt. 3, in part.

6
 with the child’s case plan and the overall effect granting or denying visitation will
have on the child’s best interests.

Petitioners first requested contact with A.L. during a hearing in the summer of 2018. Notably,
petitioners had travelled from Michigan this day and expected to travel back the following day.
However, the circuit court found that petitioners had had no contact with the child for over one
year and the DHHR did not have sufficient time to schedule a supervised visitation. In light of
petitioners’ limited contact with A.L. and the scheduling issue, the circuit court denied in-person
contact with petitioners and ordered video call contact instead. Petitioners cite this Court’s
holding that “[a] child has a right to continued association with individuals with whom he has
formed a close emotional bond . . . provided that a determination is made that such continued
contact is in the best interests of the child.” Syl. Pt. 11, In re Jonathan G., 198 W. Va. 716, 482
S.E.2d 893 (1996). Yet, in support, petitioners assert that “[c]learly, D.L. and S.L. have a
biological connection with A.L” and, in essence, ignore the dearth of evidence that A.L. did not
exhibit a “close emotional bond” with them. As stated above, the evidence revealed that
petitioners last visited with A.L. during November and December of 2016, when the child was
only four years of age. Further, during video visitations with D.L., A.L. was often uninterested in
communicating with petitioners and “exhibit[ed] little to no bond with them.” The circuit court’s
decision allowed for visitation while also assuring that the child remained in a safe environment,
and, upon our review, that decision was not in error.

For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 16, 2019, order is hereby affirmed.

Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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