In re A.B. and B.B.-1
20-0647
| W. Va. | Jun 22, 2021Background
- DHHR filed an abuse-and-neglect petition (Apr 2019) including two children, A.B. and B.B.-1; paternal grandmother B.B.-2 sought to intervene.
- After preliminary testimony, DHHR amended the petition to name B.B.-2 and alleged Subutex use and alcoholism; B.B.-2 then moved to be dismissed claiming she never had custody. She was dismissed and never adjudicated.
- Parents’ rights were later terminated and children were placed in specialized foster care; petitioner filed a second motion to intervene and sought custody/adoption (Feb 2020).
- DHHR and guardian opposed intervention, citing petitioner’s prior allegations of substance abuse, evidence she was intoxicated when served, her association with family members under no-contact orders, and concerns she would not protect children.
- Circuit court held multiple hearings, denied intervention and placement (Aug 10, 2020) on grounds of inconsistent statements, risk to permanency and child safety, and potential delay to children’s permanency; Supreme Court affirmed.
Issues
| Issue | Petitioner’s Argument | Respondent/DHHR’s Argument | Held |
|---|---|---|---|
| Denial of motion to intervene / placement | Grandparent preference; DHHR failed to do statutorily required home study; entitled to placement/intervention | Petitioner was previously named then dismissed, allegations of substance abuse and unfitness, risk from contact with no-contact relatives, children stable in foster care | Affirmed — court did not abuse discretion; petitioner’s statements inconsistent; DHHR found her unfit so home study unnecessary; placement would impede permanency |
| Meaningful opportunity to be heard | Court denied her meaningful procedural rights | She was given notice, hearings and could testify; she didn’t qualify for full parent/pre-petition custodian rights under §49-4-601(h) | Affirmed — Beane two-tier framework applied; she had opportunity to be heard and was not entitled to fuller participation rights |
| Alleged discrimination for medication-assisted treatment (Subutex) | Court refused placement based on her legal MAT participation, violating §49-4-604(f) | Court relied on multiple factors (alcoholism, intoxication when served, family associations), not MAT alone | Affirmed — denial was not based solely on MAT; court’s other concerns justified decision; courts must avoid bias against MAT but no bias found here |
| Failure to offer services | Other grandparents received services; petitioner was not offered similar help for substance abuse | No statutory duty to provide services to non-respondent; petitioner waived eligibility by moving to dismiss earlier; court found she was unlikely to participate | Affirmed — DHHR/court not required to provide services to petitioner and she foreclosed improvement-period eligibility by seeking dismissal |
Key Cases Cited
- In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (bench findings of fact in abuse-and-neglect cases are reviewed for clear error)
- In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015) (grandparent-preference home study unnecessary if grandparent is found unsuitable)
- In re K.E., 240 W. Va. 220, 809 S.E.2d 531 (2018) (grandparent preference is not absolute; child’s best interest is paramount)
- State ex rel. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018) (two-tier procedural due-process framework under §49‑4‑601(h))
- Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997) (appellate courts defer to trial court credibility determinations)