FILED
November 5, 2021
STATE OF WEST VIRGINIA released at 3:00 p.m.
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re H.M.
No. 20-0577 (Wood County 16-JA-98)
MEMORANDUM DECISION
Petitioner foster parents M.B. (“foster father”) and C.B. (“foster mother”) (collectively
“petitioners”), by counsel William B. Summers, appeal the July 7, 2020, order of the Circuit Court
of Wood County granting them visitation with H.M. at the discretion of the child’s paternal
grandparents. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Caleb A. Seckman and Brandolyn N. Felton-Ernest, filed a response in support of the
circuit court’s order and a supplemental appendix. The guardian ad litem, Justin M. Raber, filed a
response on behalf of the child also in support of the circuit court’s order. Respondent grandparents
J.T. and S.T. (“grandparents”), by counsel Ginny Conley, filed a response in support of the circuit
court’s order. On appeal, petitioners argue that the circuit court erred in failing to include language
in its February 11, 2020, order indicating that it was a final, appealable order; not granting
petitioners visitation with the child; and providing notice of the July 1, 2020, permanent placement
review hearing by e-mail only.
After considering the parties’ written and oral arguments, as well as the record on appeal
and the applicable law, this 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.
H.M. was placed with petitioners on July 22, 2016, when she was twenty-eight days old,
after the DHHR initiated a child abuse and neglect proceeding against H.M.’s biological parents.
The child remained with petitioners throughout the proceedings, which resulted in the termination
of the father’s parental rights on June 12, 2017, and termination of the mother’s parental rights on
January 16, 2018.
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
In October of 2018, the grandparents filed a motion to intervene, which the circuit court
granted. The grandparents also filed a motion seeking placement of the child with them and
grandparent visitation. By order entered November 27, 2018, the circuit court granted the
grandparents supervised visitation with the child, but deferred ruling on the placement issue,
determining that an evidentiary hearing was needed. The circuit court held a hearing on the
grandparents’ request for placement in January of 2019. Both the DHHR and the guardian opposed
the grandparents’ motion, and after hearing evidence, the circuit court denied the motion for
placement. The court performed an analysis under the grandparent preference statute, as set forth
in West Virginia Code § 49-4-114, and found that although the grandparents were suitable and
willing, the best interests of the child necessitated remaining with petitioners. The circuit court
noted that the grandparents had waited until February of 2018, nearly eighteen months after the
child’s birth, to attempt to intervene in the proceedings or to seek placement, and that this “wait
and see” approach had previously been disapproved by this Court. 2 See In re K.E., 240 W. Va.
220, 227, 809 S.E.2d 531, 538 (2018). In contrast, the court found that petitioners cared for the
child since she was twenty-eight days old; “dealt with the . . . ups and downs associated with”
raising a child, such as “colic, nightmares, and various other dealings”; and the child had
established a clear bond with petitioners and her foster siblings.
Following the entry of the January 29, 2019, order detailing the court’s findings, the
grandparents filed a motion for reconsideration of H.M.’s placement, which was joined in by the
guardian ad litem. They also requested increased visitation with the child. The circuit court
granted them increased visitation with the child and scheduled an evidentiary hearing on the
motion to reconsider.
On May 10, 2019, the circuit court held an evidentiary hearing on the grandparents’ motion
for reconsideration. By order entered on February 11, 2020, 3 the court granted the motion and
ordered that permanent placement of the child be with the grandparents. The circuit court
explained that it had previously denied the grandparents placement of the child primarily due to
the child’s bond with petitioners and the length of time the child had resided with them. However,
evidence presented at the evidentiary hearing, coupled with information received by the circuit
court in regard to a related hearing wherein another of petitioners’ foster children was removed
from their care, led the court to reconsider its prior decision and grant permanent placement of the
child with the grandparents. The court noted that “important information” was left undisclosed by
petitioners and that “information has come to light that [petitioners] have significant financial and
criminal issues that were not previously disclosed to the . . . [grandparents] and not disclosed or
considered by the court prior to its [initial] decision.” The financial and criminal information
included: a felony criminal complaint filed against petitioner foster father in Wood County, West
Virginia, for fraudulent schemes; criminal charges against petitioner foster father in Ritchie
2
Significantly, the circuit court also found that the child’s father actively withheld the
contact information for his parents – the grandparents – from the DHHR, and was not forthcoming
with the grandparents regarding the status of the proceedings.
3
The circuit court indicated that it would issue a ruling on the motion at a later date;
however, it is unclear from the appendix record why there was a nine-month delay in the court’s
ruling on this motion.
2
County, West Virginia; a tax lien in the amount of $84.00 in the City of Parkersburg, West
Virginia; a civil judgment against petitioner foster father in the amount of $21,254.94 (plus interest
at 6.99% per year) in Ritchie County; a civil judgment against petitioner foster father in the amount
of $5,379.01 (plus interest at 4.5% per year) in Wood County; a magistrate complaint filed against
petitioner foster father in Wood County with an Abstract of Judgment in the amount of $44,770.00
(plus interest at 4.5% per year); a civil judgment against petitioner foster father in Ritchie County
in the amount of $24,000.00 (plus interest); and a magistrate complaint filed against petitioners in
Wood County resulting in a default judgment in the amount of $1,196.00 (plus interest at 4.5% per
year).
The circuit court commended petitioners for caring for the child but noted that it was
unlikely permanency for the child could be achieved in their home. The court took judicial notice
of the order from petitioners’ related case, wherein a different Wood County circuit court judge
found that petitioners’ financial and moral issues rendered them incapable of adopting a different
foster child under West Virginia Code § 48-22-701(d), which requires a court to find that the
adopting parents are “of good moral character, and of respectable standing in the community, and
are able to properly maintain and educate the child sought to be adopted . . . .” The court in that
related case found that petitioner foster father failed to financially support one of his own
biological children as shown by a child support arrearage balance of $46,136.34, despite his
financial ability to make those payments. The court in that case stated that it was unable to conclude
that a father who knowingly failed to pay child support when he had the financial ability to do so
was of good moral character. 4
Based on the foregoing, the circuit court concluded that petitioners would not meet the
requirements for adoption as set forth in West Virginia Code § 48-22-701. The court found that
the grandparents wanted permanent placement of the child; were fit and proper persons to be
considered for permanent placement; had undergone a home study in their home state of North
Carolina, which was approved; and had taken a strong interest in the child, which included
regularly visiting with her. Accordingly, the circuit court determined that it was in the child’s best
interest to be placed with her grandparents where the permanency plan was for adoption. The
court ordered that the child be immediately placed with the grandparents, as the visits between
H.M. and the grandparents constituted a sufficient gradual transition period. The court also ordered
that “visitation may occur by agreement of the parties or further order of the Court, as may be
appropriate.” Following the entry of this February 11, 2020, order, the court scheduled a permanent
placement review hearing.
At a permanent placement review hearing held on March 11, 2020, petitioners moved the
circuit court for visitation with the child. The guardian ad litem requested that the therapist make
4
Petitioners appealed the related case to this Court in In re B.A., 243 W. Va. 650, 849
S.E.2d 650 (2020). On appeal, we determined that petitioners’ financial background was a relevant
consideration in determining whether they could meet statutory prerequisites for adoption, but
remanded the matter for consideration of the sibling preference set forth in West Virginia Code §
49-4-111(e), because the circuit court had failed to consider petitioners’ adoption of B.A.’s older
sibling. 243 W. Va. at 656-57, 849 S.E.2d at 656-57
3
a recommendation regarding any visitation. 5 By order entered March 17, 2020, the court directed
the DHHR to “obtain the therapist’s records and send them to the therapist in North Carolina.”
The court suspended visitation between petitioners and the child at that time.
A second review hearing was held in July of 2020, in which neither petitioners nor their
counsel appeared. By order entered on July 7, 2020, the circuit court ordered that visitation with
petitioners be at the discretion of the grandparents. Petitioners appeal the July 7, 2020, order.
The Court applies the following standard of review to the issues raised by petitioners:
“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).
First, petitioners allege that the circuit court erred in failing to include “final order
language” in either the February 11, 2020, order granting permanent placement of the child to the
grandparents, or the subsequent March 17, 2020, order. In an argument that elevates semantics
over substance, petitioners contend that the circuit court only made “findings” regarding placement
of the child with the grandparents, but no “determination” that the child was to be adopted by the
grandparents. Petitioners contend that precise language such as “the Court FINDS permanency is
in the best interests of the child, and the Court ORDERS the Department to work on achieving
permanency for the child with . . . [the grandparents][,]” was necessary in order to make the circuit
court’s orders final and appealable. Apart from summarily concluding that the circuit court’s
failure to include “final order language” constitutes reversible error, petitioners do not argue that
they would have appealed the February 11, 2020, order had it included such language, or that they
would have raised arguments regarding the permanent placement of the child with the
grandparents.
5
There is no information in regard to the therapist or the therapist’s records in the appendix
record.
4
In their argument, petitioners also focus primarily on the language contained in the circuit
court’s March 17, 2020, order, which was entered following a “permanent placement review
hearing,” not the February 11, 2020, order in which the circuit court decided the permanent
placement for the child. Petitioners’ failure to focus on the language in the February order is
largely due to the fact that the language undermines their claim that the order was not final and
appealable. In the February order, the circuit court clearly stated that “it has now become apparent
to the court that it is unlikely that permanency can be achieved with . . . [petitioners] and that “it
does not appear that . . . [petitioners] would meet the requirements of W. Va. Code § 48-22-701
for adoption.” The circuit court then determined that “it would be in the best interest of the child
to place her in her grandparents’ home where the permanency plan would be adoption” and that
the visits that had been occurring between the child and the grandparents “constitute an adequate
transition period.” The court ordered that the child “be placed with her paternal grandparents” and
that there was “no need for further delay in transitioning to the child’s placement to her paternal
grandparents.”
This Court has previously held that “[a] case is final only when it terminates the litigation
between the parties on the merits of the case and leaves nothing to be done but to enforce by
execution what has been determined.” Syl. Pt. 3, in part, James M.B. v. Carolyn M., 193 W. Va.
289, 456 S.E.2d 16 (1995). In this regard, it is undisputed that the language used by the circuit
court in the February 11, 2020, order definitively ordered the permanent placement of the child to
be with the grandparents, not the petitioners. This is demonstrated by the fact that this is exactly
what occurred, because the placement of H.M. with petitioners was terminated and the child was
transitioned from petitioners to the grandparents. The order also left no question in regard to the
circuit court’s findings and determination that petitioners would not meet the statutory
requirements needed for adoption. Despite the consequences of this order – that H.M.’s placement
with petitioners ended and permanent placement of the child was granted to the grandparents –
petitioners failed to appeal the February 11, 2020, order. Because the February 11, 2020, order
unequivocally constituted a final determination on the merits concerning the permanent placement
of the child with the grandparents, petitioners’ argument to the contrary is without merit.
Second, petitioners argue that the circuit court erred in failing to grant them visitation when
they had cared for the child for the majority of her life. According to petitioners, the circuit court
failed to consider the requisite factors when denying them visitation with the child. Petitioners aver
that the child had a bond with them as evidenced by the fact that she had lived with them essentially
since birth and referred to petitioner foster mother as “mommy.” Petitioners argue that visitation
was suspended without any determination on how it would affect the child and, as such, the circuit
court committed reversible error.
We note that petitioners’ argument is disingenuous, at best, because it wholly misrepresents
the record. The circuit court did not deny petitioners visitation with the child. Indeed, the circuit
court ordered that petitioners could enjoy visitation with the child at the grandparents’ discretion. 6
Accordingly, we find no error.
6
Given that the permanency plan is for the grandparents to adopt the child, the circuit
court’s decision to place visitation of the child with petitioners in the grandparents’ discretion is
consistent with this Court’s recent decision in In re Adoption of J.S. and K.S., 245 W. Va. 164, 858
5
Third, petitioners argue that the circuit court erred in providing notice of the July 1, 2020,
permanent placement review hearing by e-mail alone. Petitioners contend that the sole e-mail sent
to their counsel’s work e-mail address did not afford “fair and complete” notice of the hearing.
Petitioners state that no certified mail or other form of notification was ever given to them or their
counsel, and that the e-mail notification was not reviewed by their counsel prior to July 1, 2020,
all of which led to the hearing moving forward without them or their counsel. Petitioners contend
that e-mail alone should not be considered a proper method of notice.
Rule 39(c) of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings, in part, sets forth that “[n]otice of the time and place of the permanent placement
review conference shall be given to counsel of record, and all other persons entitled to notice and
the right to be heard at least fifteen (15) days prior to the conference unless otherwise provided by
court order.” Further, pursuant to Rule 5(b) of the West Virginia Rules of Civil Procedure, which
is applicable to abuse and neglect proceedings,
[w]henever under these rules service is required or permitted to be
made upon a party represented by an attorney, the service shall be
made upon the attorney unless service upon the party is ordered by
the court. Service upon the attorney or upon a party shall be made
by delivering a copy to the attorney or party; or by mailing it to the
attorney or party at the attorney’s or party’s last-known address or,
if no address is known, by leaving it with the clerk of the court; or
by facsimile transmission made to the attorney or party pursuant to
the West Virginia Supreme Court of Appeals Rules for Filing and
Service by Facsimile Transmission. Delivery of a copy within this
rule means: handing it to the attorney or to the party; or leaving it at
the attorney’s or party’s office with a clerk or other person in charge
thereof; or, if the office is closed or the person to be served has no
office, leaving it at the person’s dwelling house or usual place of
abode with some member of the person's family above the age of 16
years. Service by mail is complete upon mailing.
Under the specific facts and circumstances of the instant case we find no error,
notwithstanding the fact that the service of the notice for the permanent placement review hearing
did not comport with the foregoing rule. It is undisputed that petitioners’ counsel received notice
of the hearing via e-mail nearly forty days in advance of the hearing – ample time in which to open
an email from the court. Further, petitioners do not argue that they were prejudiced, in any way,
by their absence at the hearing, or that they were prevented from presenting any motions or
evidence or from raising any issues they had hoped to raise. As a matter of fact, the order from this
hearing reflects that no negative action was taken against petitioners; conversely, the circuit court
S.E.2d 214 (2021) (“Unless otherwise permitted by law, where a circuit court grants a petition for
adoption of a child pursuant to the procedures set forth in West Virginia Code §§ 48-22-701 to -
704 (2015), the court may not include any provision in the final order of adoption that would limit,
restrict, or otherwise interfere with the adoptive parent’s right to make decisions concerning the
care, custody, and control of the child.”).
6
ordered “visitation with . . . [petitioners] be in the discretion of . . . [the grandparents].” Finally,
despite having been sent a certified copy of the circuit court’s July 7, 2020, order in which the
court noted the absence of petitioners and their counsel from the July 1 hearing, petitioners did
nothing to bring to the circuit court’s attention that the notice their counsel received for the hearing
failed to comport with our rules and was the reason that neither petitioners nor their counsel
appeared at the hearing. Indeed, although there was another permanent placement hearing on
September 21, 2020, which petitioners did attend, they offered no argument or objections
concerning the notice given for the July hearing that they did not attend. 7
We have previously held that
“[w]here it appears from the record that the process
established by the Rules of Procedure for Child Abuse and Neglect
Proceedings and related statutes for the disposition of cases
involving children [alleged] to be abused or neglected has been
substantially disregarded or frustrated, the resulting order . . . will
be vacated and the case remanded for compliance with that process
and entry of an appropriate . . . order.” Syllabus point 5, in part, In
re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). Given petitioners’ counsel’s
receipt of the e-mailed notice nearly forty days in advance of the hearing, petitioners’ failure to
assert any prejudice resulting from their absence from the hearing, petitioners’ failure to bring the
alleged defect in the manner in which the notice was served to the circuit court’s attention, and the
fact that another permanent placement hearing occurred subsequent to the July 2020, hearing, in
which petitioners and their counsel did appear but again failed to raise any issue with respect to
the earlier alleged defect in notice, we cannot find that the Rules of Procedure for Child Abuse and
Neglect Proceedings and related statutes were substantially disregarded or frustrated such that
7
This Court has often held that a party must assert a right in the circuit court to preserve
the issue for appellate review. See State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635
(1996) (“‘One of the most familiar procedural rubrics in the administration of justice is the rule
that the failure of a litigant to assert a right in the trial court likely will result’ in the imposition of
a procedural bar to an appeal of that issue.” (citation omitted)); State v. Jessie, 225 W.Va. 21, 27,
689 S.E.2d 21, 27 (2009) (stating that the “general rule is that nonjurisdictional questions not raised
at the circuit court level will not be considered to the first time on appeal” (citation omitted)); Syl.
Pt. 4, State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999) (“A judgment will not be reversed for
any error in the record introduced by or invited by the party seeking reversal.” (citations omitted));
see also W. Va. R. App. P. 10(c)(7) (requiring petitioner’s briefs to contain an argument clearly
exhibiting the points of fact and law presented and “appropriate and specific citations to the record
on appeal, including citations that pinpoint when and how the issues in the assignments of error
were presented to the lower tribunal”). Petitioners fail to direct the Court’s attention to any portion
of the appendix record where an objection to the notice issue for the permanent status hearing was
raised before the circuit court.
7
vacation of the order is warranted. Accordingly, we find that petitioners are entitled to no relief in
this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
7, 2020, order is hereby affirmed.
Affirmed.
ISSUED: November 5, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
8