FILED
June 22, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re T.S.
No. 20-0996 (Braxton County 18-JA-7)
MEMORANDUM DECISION
Petitioners, Paternal Grandparents F.S. and C.S., by counsel Daniel K. Armstrong, appeal
the Circuit Court of Braxton County’s November 17, 2020, order denying them permanent
placement of T.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad
litem, Mary Elizabeth Snead, filed a response on behalf of the child also in support of the circuit
court’s order and a supplemental appendix. Respondent Maternal Grandmother E.M., by counsel
Barbara Harmon-Schamberger, filed a response in support of the circuit court’s order and a
supplemental appendix. Petitioners filed a reply. On appeal, petitioners argue that the circuit court
erred in denying them placement of the child on the basis that they maintained contact with their
son, who is the child’s father.
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.
The DHHR filed a child abuse and neglect petition against the child’s parents in January
of 2018. It appears that the child was placed with petitioners, the paternal grandparents, at the time
of removal and, at some point during the proceedings, petitioners were granted intervenor status.
However, in August of 2018, the child was removed from petitioners’ care following a domestic
incident on their property between their son—the child’s father—and their daughter’s boyfriend.
The child was placed in foster care due to petitioners allegedly allowing the child to have
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).
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unauthorized contact with the father. Petitioners and the maternal grandmother were granted
supervised visits with the child. The circuit court eventually terminated the parents’ parental rights
in June of 2019, following their failure to complete their respective improvement periods and
remedy the conditions of abuse or neglect. Thereafter, both petitioners and the maternal
grandmother sought permanent placement of the child.
The circuit court held a series of permanent placement hearings. In August of 2019, the
circuit court heard testimony that the DHHR left petitioners’ other foster children in the home
following the alleged domestic violence incident, removing only T.S. Testimony also indicated
that the alleged unauthorized contact between the father and the child had not been entered into
the DHHR’s record-keeping system and, therefore, could no longer be substantiated. A service
provider testified that visits between petitioners and the child were hectic and chaotic, and that
petitioner grandfather frequently spoke of the child’s father in the child’s presence. The circuit
court ordered petitioners to cease discussing the case or the child’s father in the child’s presence
and continued the matter in order for the DHHR to provide documentation regarding the child’s
removal from petitioners’ home.
At a permanent placement hearing held in December of 2019, the circuit court placed the
child with petitioners and ordered that the father was prohibited from having any direct or indirect
contact with the child. In January of 2020, the circuit court held another permanent placement
hearing. By that point, the home studies for both petitioners and the maternal grandmother had
been approved. An adoption specialist with the DHHR testified that visitation between the
maternal grandmother and the child had been going well and further testified that the DHHR’s
position was that the child should be adopted by the maternal grandmother and not petitioners. At
that time, petitioners objected to the testimony and requested a continuance based upon the
DHHR’s case plan lacking the naming of the proposed adoptive parents and simply listing
adoption as the permanency plan. The circuit court continued the matter and ordered the DHHR
to file an updated, more detailed family case plan.
The circuit court held a permanent placement hearing in February of 2020. Petitioner
grandfather testified that the father did not reside on his property but received mail at a trailer
located on his property approximately one-third of a mile from his own residence. Petitioner
grandfather testified that he limited his contact with the child’s father but had transported him to
the courthouse at various times for criminal matters. Petitioner grandfather testified that he would
not cease contact with the child’s father and expressed his intent to continue assisting the father.
Petitioner grandmother testified that she had telephone contact with the father approximately once
per week and delivered his mail to him once per week. Petitioner grandmother also conceded that
her daughter, who lived in a trailer on petitioners’ property, had recently been arrested on drug-
related charges. The adoption specialist testified that, although she had initially recommended the
child be adopted by petitioners, testimony in the proceedings raised concerns with petitioners’
suitability given their continued contact with the father. As a result, the DHHR continued to
recommend placement of the child with the maternal grandmother. The circuit court continued the
matter.
In March of 2020, the circuit court transferred placement of the child to the maternal
grandmother. The circuit court held another permanent placement hearing in July of 2020. A
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service provider testified that since the child had been placed with the maternal grandmother, she
had supervised only six in-person visits between petitioners and the child due to the COVID-19
pandemic. The service provider testified that the child did not want to attend the visits and would
kick and scream, trying to prevent her from putting him in the car to transport him. The provider
testified that the maternal grandmother attempted to transport the child herself, but that he resisted
being removed from the car. The adoption specialist testified that the child was doing well in his
placement with the maternal grandmother and appeared to be comfortable with her. In contrast,
the child appeared to be afraid of petitioners during visits. Counsel for petitioners requested a
continuance due to the fact that a multidisciplinary team (“MDT”) meeting had not been held since
January or February of 2020. Out of an abundance of caution, the circuit court continued the matter
so that an MDT meeting could be held.
In September of 2020, the circuit court held a final permanent placement hearing and took
judicial notice of all prior testimony in the matter. The DHHR advised the circuit court that its
position remained the same, recommending that permanent placement of the child be granted to
the maternal grandmother. Petitioner grandfather testified that he continued to have contact with
the father. Petitioner grandfather also testified that visits with the child had been going well. He
was questioned regarding whether his family had been taking photos of the maternal
grandmother’s home and he stated that they were taking pictures of the roof, which he previously
installed, to provide to a potential client. Petitioner grandmother testified that visits with the child
went well and stated that placement with her and her husband would be in the child’s best interest.
Petitioner grandmother claimed that if the child were placed with her and her husband, he would
have more contact with his half-sibling, a child not at issue on appeal. 2 Petitioner grandmother
further indicated that if the child were placed with her, she would permit the maternal grandmother
to have visits with the child. Petitioner grandmother testified that she believed the maternal
grandmother continued to have contact with the child’s mother and permitted the child to have
contact with her. Petitioner grandmother admitted that she continued to have contact with the father
a few times each month and took him groceries and other necessities.
S.R., the mother of T.S.’s half-sibling, testified that the children had regular contact with
each other when T.S. was placed with petitioners. S.R. testified that visits between the children
continued after T.S. was placed with the maternal grandmother, but stated they eventually ceased
after the maternal grandmother expressed concerns that petitioners were stalking her at the visits
and was concerned for her safety. S.R. testified that she and the maternal grandmother arranged
for the children to have video calls with each other thereafter. S.R. testified that she and the
maternal grandmother had “always gotten along and there were no issues with the children
visiting” prior to the concerns of stalking.
The adoption specialist testified that she had not been made aware of any issues with the
sibling visitation and further stated that she believed that S.R. and the maternal grandmother could
work together to facilitate sibling visitation in the future. The adoption specialist did not believe
that placing the child with petitioners was needed to facilitate further sibling visits. The adoption
2
The child’s half-sibling does not live with petitioners but enjoys a close relationship with
them.
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specialist testified the DHHR continued to believe that permanent placement with the maternal
grandmother was in the child’s best interest.
The service provider testified that visits between petitioners and the child “are often a little
rough” as the child did not always want to attend. The provider testified that the child asked the
maternal grandmother to “pinky promise” that she will come back to get him following the visit
before he will agree to get out of the car. The service provider testified that when the child was
first placed with the maternal grandmother, she used to do “pop in” visits and never witnessed any
indication that the mother had been in the home. The provider further testified that she heard the
child call the maternal grandmother “mommy” on several occasions.
The maternal grandmother testified that the child was doing excellent in her care. She stated
that she believed sibling visitation between the children was extremely important and that she
would continue to facilitate the same. The maternal grandmother denied having any contact with
the mother except for attending her wedding in October of 2019. The maternal grandmother
testified that she would not permit the mother to have contact with the child and further stated that
she would permit petitioners to have visits with the child.
Following testimony, the circuit court granted permanent placement of the child to the
maternal grandmother. The circuit court found that petitioners and the maternal grandmother had
a strong bond with the child and that all parties had been actively involved in the child’s life.
Moreover, both parties had an approved home study. In considering the child’s best interest, the
circuit court noted that petitioners continued to have contact with the father and that the maternal
grandmother did not have any contact with the mother. The circuit court found that petitioners’
continued contact with the father was an “overriding factor” and that no evidence had been
submitted to suggest that the maternal grandmother would permit the child to have contact with
the mother. Accordingly, the circuit court determined that placement with the maternal
grandmother was in the child’s best interest. The circuit court granted petitioners visitation with
the child. Petitioners appeal the November 17, 2020, order granting placement of the child to the
maternal grandmother.
The Court has previously established the following standard of review in cases such as this:
“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).
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Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioners argue that the circuit court erred in denying them placement on the
sole basis that they continue to have contact with the child’s father. This argument, however,
misstates the record, as it is clear that the circuit court considered several factors in denying
petitioners placement of the child, chief among them being the child’s best interests. Having
reviewed the record, we find that there was a sufficient basis to deny petitioners placement of the
child absent their alleged potential contact with the child’s father. Accordingly, we find no merit
to petitioners’ argument.
Testimony below established that the child referred to the maternal grandmother as
“mommy” and did not want to visit with petitioners. Service provider reports also established that
petitioners spoke poorly of the maternal grandmother in the child’s presence and told the child and
his half-sibling that they would see each other less-frequently if the child was not placed with
them. Further, petitioners were observed taking pictures of the maternal grandmother’s home and
claimed that they were doing so to provide pictures of a roofing job to a potential client. However,
the circuit court found that the testimony was not credible and that they were likely searching for
evidence against placement of the child with the maternal grandmother. Moreover, testimony
established that petitioners’ adult daughter, who lived in a trailer on petitioners’ property, was
arrested on drug-related charges. While the circuit court focused its analysis on petitioners’
relationship with the father, we have repeatedly held that “[t]his Court may, on appeal, affirm the
judgment of the lower court when it appears that such judgment is correct on any legal ground
disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as
the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).
Importantly, petitioners fail to argue what factors the circuit court should have considered
that would have supported placement in their care or why placement of the child in their home was
in the child’s best interest. Petitioners fail to point out any distinguishing factors suggesting that
their home was a more appropriate placement. Further, the record contains no evidence that the
maternal grandmother’s home was inappropriate. As such, petitioners are simply entitled to no
relief.
As we have repeatedly explained, “[i]n a contest involving the custody of an infant the
welfare of the child is the polar star by which 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 S.W.,
233 W. Va. 91, 755 S.E.2d 8 (2014). Having reviewed the record as a whole, it is apparent that
several factors indicated that the maternal grandmother’s home was a more appropriate placement
for the child, and testimony regarding the same was considered by the circuit court at several
permanent placement hearings. Given the evidence as set forth above, we conclude that the circuit
court did not err in finding that the best interest of the child necessitated placement with the
maternal grandmother. Therefore, we find no error in the circuit court’s order denying petitioners’
request for placement of the child.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 17, 2020, order is hereby affirmed.
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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
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