In re G.S.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_______________ FILED
April 2, 2021
released at 3:00 p.m.
No. 20-0247 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

IN RE: G.S.

____________________________________________________________

Appeal from the Circuit Court of Wetzel County
The Honorable David W. Hummel, Jr., Judge
Civil Action No. 2020-JA-001

REVERSED AND REMANDED
____________________________________________________________

Submitted: January 27, 2021
Filed: April 2, 2021

Kelly A. Stepp, Esq. Patrick Morrisey, Esq.
Stepp Law Offices Attorney General
Waynesburg, Pennsylvania Mindy M. Parsley, Esq.
Counsel for Petitioners Assistant Attorney General
Charleston, West Virginia
David C. White, Esq. Counsel for Respondent Department of
Law Office of Neiswonger and White Health and Human Resources
Moundsville, West Virginia
Guardian Ad Litem R. Jared Lowe, Esq.
Assistant Public Defender
Moundsville, West Virginia

JUSTICE ARMSTEAD delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “‘This 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,

in part, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).” Syl. Pt. 1, In re

P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020).

2. When a writing signed by both parents purports to transfer custody of

a child to a third person, and that child later becomes the subject of an abuse and neglect

petition against the child’s parents, the person with purported custody of the child has a

right to be heard at the preliminary phase of the proceedings to determine: (a) whether the

writing is authentic, (b) whether he or she is a responsible person for purposes of West

Virginia Code § 49-4-602 (2015), and (c) whether temporary placement with such person

is in the child’s best interest.

i
Armstead, Justice:

Petitioners are the paternal grandparents of an infant, G.S. Soon after G.S.

was born, Petitioners filed a petition for guardianship in the Circuit Court of Wetzel

County. In support of their petition, Petitioners filed written agreements—signed by both

parents—that purported to transfer custody of the newborn to Petitioners. Days later, the

Department of Health and Human Resources (“DHHR”) filed an abuse and neglect petition

against the parents. When Petitioners promptly moved to intervene, the circuit court denied

their motion and, despite the written agreements of record purporting to convey custody of

G.S. to Petitioners, held no evidentiary hearing to consider them for temporary placement.

The child remains in foster care, and Petitioners filed this appeal.

After careful review, we hold that Petitioners had a right to a timely

evidentiary hearing to determine their suitability for temporary placement in light of the

written agreements of record that purported to convey custody of the child to Petitioners.

Accordingly, we reverse the circuit court’s order and remand this case for an expedited

hearing in accordance with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners, K.S. 1 and A.S., are the paternal grandparents of an infant girl,

G.S., who was born in January 2020, both premature and severely exposed to addictive

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).
1
drugs. Though G.S. was born at home, she was soon hospitalized. She remained in the

hospital for twenty-one days. Nine days later, she was hospitalized again, this time for

eleven days.

Petitioners represent that they were preparing to seek guardianship before

G.S. was born. When G.S. was two days old, they filed a petition for guardianship in the

Circuit Court of Wetzel County. In support of their petition, they filed “guardianship”

agreements that were signed by both parents. The agreements, which were acknowledged

before a notary on the day after the child was born, recited that the child’s “welfare and

best interests” would be promoted if she lived in Petitioners’ home under their “care,

custody, and control[.]” Each agreement purported to appoint Petitioners as guardians of

G.S. and authorized them to make educational and medical decisions, and was to remain

in effect until a parent “files and is granted an order terminating guardianship and restoring

parental rights or until otherwise ordered by the [c]ourt.” The agreements further provided

that the child was to “reside in the home of the [Petitioners] and . . . be treated the same as

. . . [Petitioners’] natural child.”

Meanwhile, on the same day Petitioners filed the petition for guardianship,

DHHR filed an application for emergency custody of G.S., which was granted by the

2
magistrate court. 2 Five days after DHHR applied for emergency custody, 3 DHHR filed an

abuse and neglect petition against the parents in circuit court. The petition accused G.S.’s

mother of using controlled substances during pregnancy and G.S.’s father of knowingly

allowing this to occur. The abuse and neglect petition also acknowledged that Petitioners

had filed a guardianship petition. The circuit court entered an initial order on the abuse

and neglect petition and scheduled a preliminary hearing for February 4, 2020.

The circuit court, however, dismissed Petitioners’ guardianship petition. 4

Three days later, Petitioners moved to intervene in the abuse and neglect matter and be

See W. Va. Code § 49-4-303 (2015) (authorizing emergency removal by
2

DHHR and ratification of emergency custody by magistrate court order).

Because a weekend and a legal holiday intervened, only two judicial days
3

passed between the time DHHR applied for ratification of emergency custody and the time
DHHR filed the abuse and neglect petition. See W. Va. R. P. Child Abuse & Neglect Proc.
7 [2012]; W. Va. R. Civ. P. 6(a) [1998].
4
According to Petitioners, the dismissal was “without hearing sua sponte due
to the filing of the . . . abuse and neglect petition.” The circuit court’s dismissal order does
not identify the circuit court’s statutory or other authority to summarily dismiss Petitioners’
guardianship petition. The order simply states that the court is “aware” of another pending
civil action that “takes precedence and supplants” the minor guardianship proceeding. We
agree that abuse and neglect proceedings take priority over almost every other civil action
before a circuit court. W. Va. Code § 49-4-601(j) (2019) (“Any petition filed and any
proceeding held under this article shall, to the extent practicable, be given priority over any
other civil action before the court, except proceedings under § 48-27-309 of this code
[regarding domestic violence proceedings] and actions in which trial is in progress.”); see
also W. Va. R. P. Child Abuse & Neglect Proc. 5 [2015] (“Under no circumstances shall a
civil child abuse and neglect proceeding be delayed pending the initiation, investigation,
prosecution, or resolution of any other proceeding, including, but not limited to, criminal
proceedings.”). However, we are aware of no authority that requires or allows a circuit
court to dismiss a duly filed guardianship petition sua sponte simply because another party
has filed a subsequent abuse and neglect petition regarding the same child.

3
named as co-petitioners 5 with DHHR. Petitioners’ motion reminded the court that they

had petitioned for guardianship and advised that, since the child’s birth, they had “visited

the child in the hospital” and had “been fully involved in her care and well-being[.]”

According to Petitioners, DHHR had represented to Petitioner grandmother that Petitioners

would be considered for placement and had visited their home. Petitioners affirmed that

they wished to care for G.S. and were able to do so.

On February 4, 2020, Petitioners appeared for a hearing on their motion to

intervene and be named as co-petitioners. The hearing on Petitioners’ motion was set for

the same date and time as the preliminary hearing. However, the circuit court soon

removed them from the courtroom, 6 leaving their attorney to argue in their absence. The

assistant prosecuting attorney reported that G.S. remained in the hospital and that DHHR

intended—barring a contrary order from the court—to place G.S. in foster care with her

half-siblings, who had been the subject of a prior adoption. 7 When Petitioners’ attorney

argued that the half-siblings had no bond with G.S., the circuit court reminded Petitioners’

attorney that it was considering the motion to intervene, “not placement at the moment.”

Petitioners’ attorney responded, however, that Petitioners wished to intervene “so that they

5
See W. Va. R. P. Child Abuse & Neglect Proc. 17(a) [2016] (authorizing a
motion to join “[DHHR], a parent, or reputable person . . . as a co-petitioner after the filing
of the initial petition.”).
6
The circuit judge stated that he was having Petitioners “step out at the
moment until I address the Motion to Intervene[,]” but Petitioners were not invited back
into the courtroom.
7
These half-siblings have the same biological mother as G.S.
4
can be part of the process in whatever is decided for the infant at the end of the day” and

that they wanted G.S. placed with them when she was discharged from the hospital.

Petitioners’ attorney also noted that DHHR was seeking a decision about sibling separation

and contended that placement with Petitioners was in the child’s best interest, given the

possibility that Petitioners’ son, the child’s father, might regain custody. After further

colloquy, the circuit court took the matter under advisement and excused Petitioners’

attorney from the courtroom.

The circuit court denied Petitioners’ motion in an order entered on February

13, 2020, finding that Petitioners did “not meet the statutory definition as persons entitled

to notice of hearings as a parent or relative providing care for th[e] child” and that

Petitioners “did not cite specific allegations of abusive or neglectful conduct by the

parents” but, rather, had sought guardianship. Nevertheless, the circuit court found that

Petitioners’ “home should be considered as a potential foster placement” and ordered

DHHR to “conduct an appropriate home study and other assessment to consider the

paternal grandparents as placement for the child in the Department’s custody.”

On March 16, 2020, Petitioners filed a notice of appeal from the circuit

court’s February 13, 2020 order. Before oral argument before this Court, Petitioners and

DHHR filed updates regarding the child’s status. 8 DHHR’s update advised that DHHR

8
The West Virginia Rules of Appellate Procedure require parties to “provide
a written statement of any change in the circumstances that were set forth in the briefs
within one week of any oral argument scheduled by the Court or within such other time as
may be specified by order.” W. Va. R. App. P. 11(j) [2016].
5
intended to seek the termination of the father’s parental rights. Petitioners’ update reported

that the mother relinquished her parental rights in June 2020. Petitioners further advised

that they renewed their motion to intervene in November 2020 and that the circuit court

had since granted that motion. However, Petitioners also reported that DHHR continued

to deny them visitation with the child and that the circuit court had “deferred the issue of

placement” despite DHHR issuing a favorable kinship/relative safety screen with regard to

Petitioners in April 2020.

II. STANDARD OF REVIEW

This appeal stems from Petitioners’ attempt to participate in an ongoing

abuse and neglect proceeding filed against the child’s parents. Petitioners are properly

before us, however, because an order denying a motion to intervene in an abuse and neglect

matter is a final appealable order with respect to the moving party. See In re P.F., 243 W.

Va. 569, ___ n.4, 848 S.E.2d 826, 830 n.4 (2020) (rejecting a claim that the Court lacked

jurisdiction to review an order denying a grandparent’s motion to intervene in an abuse and

neglect matter); see also Bhd. of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519,

524 (1947) (“[W]here a statute or the practical necessities grant the applicant an absolute

right to intervene, the order denying intervention becomes appealable.”).

“This 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, in part, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d
801 (2005).

6
In re P.F., 243 W. Va. at ___, 848 S.E.2d at 827, syl. pt. 1. On review, we also consider

whether the circuit court’s action “substantially disregarded or frustrated” procedures

contained in our rules and the relevant statutes. In re J.A., 242 W. Va. 226, 238, 833 S.E.2d

487, 499 (2019) (quoting Syl. Pt. 5, In re T.W., 230 W.Va. 172, 737 S.E.2d 69 (2012)).

We have a constitutional duty to “supervise the administration of justice in the circuit

courts to ensure that fair standards of procedure are maintained.” Stern v. Chemtall Inc.,

217 W. Va. 329, 337, 617 S.E.2d 876, 884 (2005) (citing W. Va. Const. art. VIII, § 3).

This supervisory duty carries with it the “inherent power to do all things that are reasonably

necessary for the administration of justice within the scope of [our] jurisdiction.” Id.

(quoting Syl. Pt. 1, State ex rel. Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304 (2003)).

With these principles in mind, we will consider Petitioners’ assignments of error.

III. ANALYSIS

Petitioners raise four assignments of error. Petitioners contend that the

circuit court erred by: (1) denying their motion to intervene, (2) denying their right to be

heard, (3) failing to place the child with them, and (4) denying their motion to be joined as

co-petitioners with DHHR. However, the circuit court has since granted Petitioners’

renewed motion to intervene, and, as intervenors, Petitioners now enjoy the right to be

heard and participate in the proceedings below. While the circuit court’s order does not

explain why the court granted Petitioners’ renewed motion to intervene, the order simply

observes that a “substantial change of material facts both procedurally and substantively”

has occurred. “By the very definition of intervention the intervenor is a party to the action.

7
After intervention, he or she is as much a party to the action as the original parties, and

renders himself vulnerable to complete adjudication of the issues in litigation between

himself and the adverse party.” In re Harley C., 203 W. Va. 594, 598, 509 S.E.2d 875, 879

(1998) (quoting 59 Am.Jur.2d Parties § 170 (1987)). Thus, Petitioners already have the

relief they sought under their first two assignments of error.

We now address petitioners’ argument that the circuit court “abused its

discretion by refusing to order placement with the paternal grandparents over half-

siblings.” They contend that, by failing to place the child with them “sooner rather than

later, . . . the circuit court effectively prejudiced the paternal grandparents’ preference for

permanent placement.”

Petitioners invoke the statutory grandparent preference contained in West

Virginia Code § 49-4-114(a)(3) (2015). 9 We have held that this provision creates a

“grandparent preference in determining adoptive placement for a child where parental

9
West Virginia Code § 49-4-114(a)(3) provides that

[f]or purposes of any placement of a child for adoption
by the department, the department shall first consider the
suitability and willingness of any known grandparent or
grandparents to adopt the child. Once grandparents who are
interested in adopting the child have been identified, the
department shall conduct a home study evaluation, including
home visits and individual interviews by a licensed social
worker. If the department determines, based on the home study
evaluation, that the grandparents would be suitable adoptive
parents, it shall assure that the grandparents are offered the
placement of the child prior to the consideration of any other
prospective adoptive parents.
8
rights have been terminated and . . . incorporates a best interests analysis within that

determination by including the requirement that the DHHR find that the grandparents

would be suitable adoptive parents prior to granting custody to the grandparents.” In re

P.F., 243 W. Va. at ___, 848 S.E.2d at 827, syl. pt. 7, in part (emphasis added) (quoting

Syl. Pt. 4, in part, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005)). Though

West Virginia Code § 49-4-114(a) contemplates a circumstance where parents’ rights have

been terminated, Petitioners contend that nothing in that provision “precludes” temporary

placement with grandparents before termination.

However, the circuit court rendered no decision, found no facts, and reached

no conclusions of law regarding Petitioners’ suitability for temporary placement or whether

such placement would be in the child’s best interest. Indeed, despite the written

guardianship agreements purporting to transfer custody of G.S. to Petitioners, 10 the circuit

court did not allow Petitioners to participate in the preliminary hearing to determine

whether G.S. should be placed in the custody of Petitioners.

We are deeply troubled by the circuit court’s failure to develop the record

and expeditiously render a decision on this issue at the February 4, 2020 preliminary

hearing. In its February 13, 2020 order denying Petitioners’ motion to intervene, the circuit

court merely found that Petitioners’ home “should be considered” for potential foster

placement and directed DHHR to conduct a home study and whatever other assessments

10
We presume that the circuit court was aware of the guardianship
agreements, because the judge who denied Petitioners’ motion to intervene also dismissed
the guardianship petition.
9
might be necessary for that purpose. DHHR issued a favorable kinship/relative safety

screen in April 2020, yet no subsequent hearing was held to consider DHHR’s findings or

receive testimony, and no decision was made regarding Petitioners’ suitability to care for

their granddaughter. Ten months later, when the circuit court granted Petitioners’ motion

to intervene, the court “expressly” deferred making a decision regarding placement “until

such time as those entitled to notice and an opportunity to be heard may make their

positions known to the [c]ourt.”

Such delay was inappropriate on the facts of this case. When Petitioners filed

their guardianship petition, they attached notarized agreements from both parents that

purported to transfer temporary custody of G.S. to Petitioners. When a circuit court enters

its initial order regarding custody, West Virginia Code § 49-4-602 commands the circuit

court to “require the immediate transfer of care, custody, and control of the child or children

to the department or a responsible relative, which may include any parent, guardian, or

other custodian.” W. Va. Code § 49-4-602(a)(4) (emphasis added). West Virginia Code

§ 49-4-602 also authorizes a circuit court, after a preliminary hearing, to deliver the child

“into the temporary care, custody, and control of the department or a responsible person

or agency found by the court to be a fit and proper person[.]” W. Va. Code § 49-4-602(b)

(emphasis added).

We believe that circuit courts have the authority to award temporary custody

to a “responsible person” because there are at least some circumstances where awarding

temporary custody of an abused or neglected child to someone other than DHHR is in the

10
child’s best interest—which is our “paramount” concern. In re P.F., 243 W. Va. at ___,

848 S.E.2d at 827, syl. pt. 3 (“ ‘In . . . 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).”).

Accordingly, we hold that, when a writing signed by both parents purports

to transfer custody of a child to a third person, and that child later becomes the subject of

an abuse and neglect petition against the child’s parents, the person with purported custody

of the child has a right to be heard at the preliminary phase of the proceedings to determine:

(a) whether the writing is authentic, (b) whether he or she is a responsible person for

purposes of West Virginia Code § 49-4-602 (2015), and (c) whether temporary placement

with such person is in the child’s best interest.

Because we find, based on the specific facts and circumstances of this case,

that Petitioners had a right to be heard at the preliminary hearing to determine their

suitability for temporary placement, we reverse the circuit court’s February 13, 2020 order

and remand this case to the circuit court for an expedited evidentiary hearing to make such

determination of their suitability for temporary placement in accordance with this opinion.

We emphasize that we are remanding this case for an expedited hearing, particularly in

light of the child’s tender age. As this Court has previously observed, “[u]njustified

procedural delays wreak havoc on a child’s development, stability and security.” Syl. Pt.

1, in part, In Int. of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).

11
 We also remind the circuit court that any transition from the foster parents’

care to Petitioners’ care—if warranted—may be undertaken gradually. Kristopher O. v.

Mazzone, 227 W. Va. 184, 191, 706 S.E.2d 381, 388 (2011) (“Should the circuit court

determine that any further change of physical and legal custody is required, it must be

accomplished via a gradual transition.”). Any such transition must also occur under the

circuit court’s careful supervision. Syl. Pt. 7, In re George Glen B., Jr., 207 W. Va. 346,

532 S.E.2d 64 (2000) (“When a circuit court determines that a gradual change in permanent

custodians is necessary, the circuit court may not delegate to a private institution its duty

to develop and monitor any plan for the gradual transition of custody of the child(ren).”).

To facilitate the commencement and conclusion of the proceedings directed

by this opinion, we further direct the Clerk to issue the mandate of the Court

contemporaneously with the issuance of this opinion. 11

IV. CONCLUSION

Based on the foregoing, we reverse the circuit court’s February 13, 2020

order, and we remand this case to the Circuit Court of Wetzel County for further action in

accordance with this opinion.

Reversed and Remanded,

with Directions.

11
Because the circuit court has already granted Petitioners’ motion to
intervene and we have directed that an evidentiary hearing be held on Petitioners’ request
for temporary placement, it is not necessary for Petitioners to be granted the status of co-
petitioners.
12