FILED
June 22, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re B.V., M.V., and A.V.
No. 21-0060 (Roane County 19-JA-56, 19-JA-57, and 19-JA-58)
MEMORANDUM DECISION
Petitioner grandmother and intervenor N.V., by counsel Michael Hicks, appeals the Circuit
Court of Roane County’s December 28, 2020, order denying her motion for permanent placement
of B.V., M.V., and A.V. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Mindy M. Parsley, filed a response in support of the circuit court’s order.
The guardian ad litem, Leslie L. Maze, filed a response on the children’s behalf in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion
for permanent placement of the children.
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 September of 2019, the DHHR filed a child abuse and neglect petition alleging that M.V.
disclosed that her father, C.V., had sexually abused her on multiple instances and that her mother,
J.V., 2 witnessed the most recent instance of abuse but failed to report C.V. to law enforcement.
The DHHR further alleged that J.V. and C.V. subjected the children to emotional trauma and
mental abuse by engaging in an incestuous relationship. J.V. is the biological niece of C.V., and
C.V. admitted to engaging in a continuing sexual relationship with her in violation of West
Virginia law. In November of 2019, the circuit court adjudicated the parents as abusing parents.
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
Petitioner is J.V.’s mother.
1
The circuit court held dispositional hearings in January, February, and March of 2020.
Relevant to this appeal, J.V. testified that she was not comfortable with petitioner, who is J.V.’s
mother, visiting or having custody of the children. J.V. explained that she had been sexually abused
twice prior to the commencement of her incestuous relationship with C.V., which began at age
fifteen. J.V.’s oldest brother (petitioner’s son) sexually abused her when she was about five years
old. J.V. recalled that petitioner “took me into my room, and she yelled at me for letting somebody
touch me,” but she did not recall that her older brother received any reprimand. J.V. was also
sexually abused by her cousin, the son of C.V. J.V. testified that she confronted petitioner and her
father about the abuse she suffered as a child, and petitioner “said she didn’t remember anything
from any of them.” J.V. strongly believed that petitioner was aware about both instances of abuse.
J.V. also testified that, when she confronted her parents about the abuse, her father (petitioner’s
husband) “started coming up with excuses to why” C.V. engaged in a sexual relationship with her.
J.V. believed that her father was defending C.V. and she did not feel comfortable with her children
being with somebody who would defend C.V.
Ultimately, the circuit court terminated J.V.’s parental rights to the children in April of
2020. In that final dispositional order, the circuit court made the following findings of fact which
are relevant to this appeal:
[J.V.] does not want her children to have visitation with her parents. [J.V.] testified
that she confronted her parents regarding the sexual abuse she suffered as a child
and the fact that she got in trouble instead of the abusers. She testified that her
mother [petitioner] denied any knowledge of the sexual abuse when [J.V.] knows
that [petitioner] was aware. She testified that her father questioned her as to why
she never told him about the sexual abuse and then began justifying and making
excuses for [C.V.] She testified that her parents were aware that [C.V.] was the
biological father of all three of her children.
J.V. appealed the termination of her parental rights, and this Court affirmed the circuit court’s final
dispositional order. See In re B.V., M.V., and A.V., No. 20-0582, 2020 WL 7259948 (W. Va. Dec.
10, 2020)(memorandum decision). 3
In May of 2020, petitioner filed a motion to intervene and a motion for permanent
placement of the children. The circuit court took petitioner’s motions under advisement. In August
of 2020, the circuit court convened for a review hearing. Petitioner moved the court to order the
DHHR to complete a home study of her home and hold a hearing on her motion for permanent
placement of the children. The circuit court took petitioner’s motion under advisement and
scheduled a review hearing to allow the DHHR to prepare an update on the status of petitioner’s
3
The father, C.V., voluntarily relinquished his parental rights to the children, and he did
not appeal the circuit court’s order accepting that relinquishment and terminating his parental
rights.
2
home study. 4 At the subsequent review hearing in September of 2020, the DHHR reported that
petitioner’s home study was still pending. It reported that petitioner’s home “would likely pass the
home study, but with concerns.” The DHHR and the guardian objected to placing the children with
petitioner.
Finally, in December of 2020, the circuit court held an evidentiary hearing on petitioner’s
motion for permanent placement of the children. Petitioner testified that she had a close
relationship with the children, indicating that she was present for their respective births and spent
weeks visiting the children throughout their lives. She further testified that in May of 2010, she
had guardianship of the children for a period of time while the mother worked out of town for
weeks at a time. In regard to the mother’s testimony during the dispositional hearings, petitioner
stated that J.V. had accused her oldest son of sexually inappropriate conduct and that she sought
therapy for the brother thereafter. Petitioner testified that she was unaware C.V. was the father of
her grandchildren until these proceedings began. She attributed J.V.’s pregnancies to J.V.’s
occasional and short-lived relationships. She stated that she never suspected that J.V. and C.V.
were in a sexual relationship. Although paternity testing had established that C.V. was the father
of all three children, petitioner testified that she still questioned paternity because she believed that
C.V. had a vasectomy based on conversations with C.V.’s ex-wife.
Ultimately, the circuit court relied on the prior testimony of J.V. that petitioner and her
husband knew that C.V. was the biological father of all three children and that petitioner knew
J.V. had been sexually abused as a child. The court found that petitioner allowed J.V. to be placed
in the care of C.V. when she was a minor and allowed J.V. to be sexually abused by C.V. Finally,
the circuit court concluded that petitioner could not protect the infant respondents and that
placement in her care was not in their best interests. The circuit court memorialized its decision in
its December 28, 2020, order. Petitioner now appeals this decision.
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).
4
It appears from the record that petitioner’s home was located in Ohio. Thus, the DHHR
relied on Ohio’s Columbiana County Department of Job and Family Services to complete the home
study.
3
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that the circuit court’s findings were clearly erroneous in light
of the record viewed in its entirety and that it was in the children’s best interests to be placed in
her care. She emphasizes the strong bond that she had with all three children, which was
unrebutted. She also emphasizes that her home was inspected and found to be fit and suitable for
placement of the children. Finally, she asserts that she provided reasonable explanations as to why
she was not aware of J.V.’s incestuous relationship with C.V. and that she would protect the infant
respondents if granted custody. Upon our review, we find no error in the circuit court’s denial of
petitioner’s motion for permanent placement of the children.
West Virginia law sets forth a preference for adoption of a child by their grandparents if
possible. See W. Va. Code § 49-4-114(a)(3). 5 “[West Virginia Code § 49-4-114(a)(3)]
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. 7, in
part, In re P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020) (internal citation omitted). We have
reiterated that the “grandparent preference” is not absolute and that placement must “be in the best
interests of the child, given all circumstances of the case.” Id. at 570, 848 S.E.2d at 827, syl. pt. 8,
in part.
Here, we find no error in the circuit court’s conclusion that permanent placement with
petitioner was not in the children’s best interest. While we acknowledge the testimony regarding
the bond between petitioner and the children, J.V.’s testimony that petitioner failed to protect her
from sexual abuse as a child is extremely troubling. J.V. testified that petitioner was aware of
sexual abuse that was perpetrated upon her as a child and that petitioner had blamed J.V. for that
abuse. Further, the circuit court found that, based upon J.V.’s testimony, petitioner had allowed
C.V. to sexually abuse J.V. as a minor. Although petitioner attempted to provide explanations for
her past actions, the circuit court gave more weight to J.V.’s earlier testimony in its findings of
fact, which is a credibility determination we will not undermine. See Michael D.C. v. Wanda L.C.,
201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). (“A reviewing court cannot assess witness
credibility through a record. The trier of fact is uniquely situated to make such determinations and
this Court is not in a position to, and will not, second guess such determinations.”)
5
For 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.
W. Va. Code § 49-4-114(a)(3).
4
Petitioner argues there are factual similarities between this case and Napoleon S. v. Walker,
217 W. Va. 254, 617 S.E.2d 801 (2005). In Napoleon S., the circuit court denied grandparents
permanent placement of their grandchild, in part, because of their inability to accept that their son
caused their grandchild serious physical injuries and their inability to “ensure the safety of the
child.” Id. at 258, 617 S.E.2d at 805. This Court reversed the circuit court’s order in Napoleon S.
upon compelling evidence that, even though the grandparents had not accepted their son’s
culpability, they had fully agreed to restrict contact between their son and grandchild, if granted
custody. Id. at 262, 617 S.E.2d at 809. Here, petitioner argues that she accepted that an incestuous
relationship had occurred between J.V. and C.V. She also emphasizes her testimony that she would
protect the children and prevent future contact between J.V. and the children if required. We find
that these cases are quite distinguishable. In Napoleon S., the circuit court was concerned that the
grandparents would not protect their grandchild from potential contact with their son, which was
remedied by their assurance that they would abide by a no contact order. Here, however, the circuit
court was concerned that petitioner did not have the capacity to protect the children based upon
her inability to protect J.V. from sexual abuse while J.V. was a minor in petitioner’s care. Although
petitioner assured the circuit court that she would protect the children, the evidence showed that
she had already failed in the past to protect minors in her care from sexual abuse. Thus, we agree
with the circuit court that it would not be in the children’s best interests to be placed in petitioner’s
care, given all the circumstances of this case.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 28, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
5