In re K.L. and R.L. , 241 W. Va. 546 ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
_______________ FILED
No. 18-0500 April 4, 2019
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE K.L. AND R.L.
_____________________________________________
Appeal from the Circuit Court of Randolph County
The Honorable David H. Wilmoth, Judge
Civil Action Nos. 17-JA-26 and 17-JA-27
REVERSED AND REMANDED
_____________________________________________
Submitted: January 16, 2019
Filed: April 4, 2019
Heather M. Weese Debra V. Chafin
Law Office of Heather M. Weese, PLLC Larry W. Chafin
Elkins, West Virginia Law Office of Debra V. Chafin, PLLC
Guardian ad Litem for the Petitioners, Clarksburg, West Virginia
Minor Children, K.L. and R.L. Attorneys for the Respondents,
Paternal Uncle and Aunt,
J. Brent Easton B.L. and J.L.
Brent Easton Attorney at Law PLLC
Davis, West Virginia
Attorney for the Petitioners,
Foster Parents, R.C. and B.C.
Patrick Morrisey
Attorney General
Charleston, West Virginia
Melinda C. Dugas
Assistant Attorney General
Martinsburg, West Virginia
Attorneys for the Petitioner,
West Virginia Department of
Health and Human Resources
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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.” Syllabus point 1, In re Tiffany Marie S., 196 W. Va. 223,
470 S.E.2d 177 (1996).
2. Only two statutory familial preferences applicable to the adoption of a
child are recognized in this State: (1) a preference for adoptive placement with the child’s
grandparents set forth in W. Va. Code § 49-4-114(a)(3) (2015) and (2) a preference for
placing siblings into the same adoptive home pursuant to W. Va. Code § 49-4-111 (2015).
Apart from the grandparent and the sibling preferences, there does not exist an adoptive
placement preference for a child’s blood relatives, generally.
i
3. “Once a court exercising proper jurisdiction has made a determination
upon sufficient proof that a child has been neglected and his natural parents were so derelict
in their duties as to be unfit, the welfare of the infant is the polar star by which the discretion
of the court is to be guided in making its award of legal custody.” Syllabus point 8, in part,
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
ii
Jenkins, Justice:
The Petitioners herein, the Guardian ad Litem (“Guardian”) for the minor
children, K.L.1 and R.L.; the Department of Health and Human Resources (“DHHR”); and
the children’s foster parents, R.C. and B.C. (“Foster Parents”),2 appeal from an “Order of
Permanent Placement” entered April 30, 2018, by the Circuit Court of Randolph County.
By that order, the circuit court awarded custody of the children to their paternal uncle and
aunt, B.L. and J.L. (“Uncle and Aunt”). On appeal to this Court, the Petitioners assign
error to the circuit court’s decision. The Petitioners claim that the circuit court erroneously
concluded, as a matter of law, that there exists, in the abuse and neglect context, a relative
preference other than the preference afforded to grandparents and siblings and failed to
consider the best interests of the children. Upon a review of the parties’ arguments, the
appendix record, and the pertinent authorities, we reverse the April 30, 2018 “Order of
Permanent Placement” of the Randolph County Circuit Court and remand this case for
further proceedings consistent with this Opinion. In summary, the only recognized familial
preferences in abuse and neglect proceedings are those afforded to the subject child’s
grandparents and siblings; there is no preference afforded to blood relatives, generally, of
a child subject to abuse and neglect proceedings.
In cases involving sensitive facts, we refer to the parties by their initials
1
rather than their full names. See, e.g., In re I.M.K., 240 W. Va. 679, 682 n.1, 815 S.E.2d
490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016).
See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving
children).
2
Where necessary, the Petitioners also will be referred to collectively as “the
Petitioners.”
1
I.
FACTS AND PROCEDURAL HISTORY
The case sub judice began when the DHHR filed an abuse and neglect
petition in May 2017 after the youngest child herein, K.L., was alleged to have been abused
and/or neglected when he was born drug-exposed.3 The DHHR filed an emergency petition
charging both the children’s Mother and the children’s Father with abuse and neglect based
upon allegations of domestic violence and illegal drug use by both parents. Specifically,
the petition alleged that the parents “are unable to care for their children due to substance
abuse, domestic violence, lack of appropriate supervision, and unsafe living conditions.”
The DHHR also sought ratification of the DHHR’s assumption of emergency custody of
both K.L., who remained in the hospital following his birth as a result of his drug exposure,
and R.L., K.L.’s older sister who was approximately five years old, as well as its removal
of R.L. from the home. The circuit court authorized the DHHR’s assumption of emergency
custody by order entered May 4, 2017, and approved the DHHR’s actions by order entered
May 9, 2017.
Upon her removal from her parents’ home, R.L. was placed with the Foster
Parents. Following his release from the hospital, K.L. also was placed with the Foster
Parents. The Foster Parents previously have cared for numerous foster children, many of
At the time of K.L.’s birth, the Mother tested positive for Buprenorphine,
3
Cannabinoids, and Benzodiazepines. K.L. experienced withdrawal symptoms due to the
substances in his system at birth; however, which substances are not apparent in the record.
2
whom have had special needs, and have adopted five children, two of whom still live in
the home.
It appears that the DHHR identified the Uncle and Aunt as a possible relative
placement for the children when the DHHR assumed their custody, but, because they live
in Michigan, nearly fifteen hours away, the DHHR did not consider the Uncle and Aunt as
a temporary placement for the children during the pendency of the abuse and neglect
proceedings. Rather, because the goal of the abuse and neglect case was the reunification
of the children with their parents, the DHHR determined that the Uncle and Aunt lived too
far away to be able to facilitate visits between the children and their parents should the
parents be granted visitation during the proceedings. The Uncle and the children’s Father
are brothers and have a strained relationship such that the Uncle and Aunt had never met
the children until after the circuit court’s permanent placement hearing when the DHHR
arranged visits with the Uncle and Aunt. The Uncle and Aunt have several children, three
of whom continue to reside in their home, and the Uncle has significant experience caring
for his autistic sibling. They expressed interest in caring for R.L. and K.L., either as a
temporary or a permanent placement, and traveled to West Virginia to attend the parents’
adjudicatory hearing in the summer of 2017; however, the Uncle and Aunt were not
permitted to participate in the hearing because it was closed. There is also some indication
that the Father objected to their presence at the hearing.
3
When she arrived at the Foster Parents’ home, R.L. exhibited significant
developmental, social, emotional, and educational delays, although she was almost five
years old. As recounted by the children’s foster care providers, DHHR case worker, and
Foster Parents, R.L. could not communicate verbally; could not feed, clothe, or bathe
herself; shied away from human contact; and spent most of her time rolled into a ball in
the corner of a room moaning, whining, and squealing. Alternate diagnostic theories for
R.L.’s conduct ranged from extreme neglect to autism or some other unspecified
neurological disorder.
K.L. remained in the hospital for approximately one month after his birth as
a result of his withdrawal from the substances to which he was exposed in utero. When
K.L. arrived at the Foster Parents’ home, he was underweight and continued to receive
therapeutic services to overcome the effects of his prenatal drug exposure.
At the conclusion of the adjudicatory hearing, the circuit court granted both
parents visitation with the children pending clean drug screens. However, neither parent
participated in services, submitted to drug screens, or exercised visitation with their
children. Moreover, both parents’ attendance at the underlying abuse and neglect hearings
was sporadic. Consequently, the circuit court held their dispositional hearing in October
2017, and, by order entered November 3, 2017, terminated both parents’ parental rights to
R.L. and K.L.
4
During this time, the DHHR caseworker assigned to this matter began
completing the paperwork required by the Interstate Compact for the Placement of
Children (“ICPC”)4 that was necessary for the Uncle and Aunt to be considered as an
adoptive placement for R.L. and K.L. The DHHR submitted the home study request to the
State of Michigan shortly after the circuit court entered its dispositional order terminating
the parents’ parental rights. In January 2018, the DHHR received the Michigan home study
report approving the Uncle and Aunt as an adoptive placement for the children.
While the abuse and neglect case was proceeding, R.L. received numerous
therapeutic services—private speech therapy paid for by the Foster Parents; in-home
services provided by the Foster Parents; and speech, occupational, and developmental
therapy provided through the Preston County, West Virginia, public school system. By the
time of the circuit court’s permanent placement hearing in March 2018, R.L. was attending
public school kindergarten; feeding, dressing, and bathing herself with assistance;
interacting with people and showing affection; and speaking with a vocabulary of
approximately fifty words. Although she continued to have significant delays as compared
4
The Interstate Compact for the Placement of Children (“ICPC”) governs the
interstate placement of children, including adoptive placements, to ensure that children will
be living in safe and suitable homes. See generally W. Va. Code §§ 49-7-101 to -304
(LexisNexis 2015).
5
to her peers,5 R.L. made great strides while living with the Foster Parents. Nevertheless,
R.L. continued to exhibit severe separation anxiety and an intolerance for change. For
instance, when R.L.’s teacher’s aide had an extended medical leave of absence, R.L. began
acting out in school, having tantrums, and refusing to do classwork. R.L. also experienced,
and continues to have, severe separation anxiety when her Foster Mother is not present to
pick her up from the school bus when she returns home from school; on these occasions,
R.L. cries and screams until she makes herself sick. The Foster Mother testified that she
has to leave a video for R.L. every time she is not home when R.L. returns from school or
the child is inconsolable and that she had to leave such a video to attend the permanency
hearing.
K.L. continued to thrive while living with the Foster Parents such that he was
dismissed from West Virginia Birth to Three services at the age of six months because he
no longer experienced any developmental delays. The only lingering issue that K.L.
continues to face is low weight.
At the permanent placement hearing in the underlying abuse and neglect case,
held on March 22, 2018, both the Foster Parents and the Uncle and Aunt appeared to assert
5
For example, while R.L. was communicating with a vocabulary of
approximately fifty words, that was significantly less than the roughly 2,500 word
vocabulary common for other children her age.
6
their interest in serving as a permanent placement for R.L. and K.L. and ultimately adopting
the children. The DHHR and the Guardian also participated in the hearing and
recommended that the children’s best interests would be served by continuing their
placement with the Foster Parents. R.L.’s separation anxiety and inability to tolerate
change was so severe that the DHHR and the Guardian felt that placement with the Uncle
and Aunt, with whom the children had no relationship and who they had never met, would
cause R.L. to regress to the point she may not be able to regain the developmental progress
she had made while in the Foster Parents’ care.
By “Order of Permanent Placement” entered April 30, 2018, the circuit court
awarded the Uncle and Aunt custody of R.L. and K.L. finding them to be the preferred
placement because they are the children’s “blood relatives.” In so ruling, the circuit court
determined as follows:
Pursuant to the provisions of W. Va. Code § 49-6-604,
following a termination of parental rights, this Court must
determine whether the children should be considered for
permanent placement with a fit and willing relative.
Pursuant to the provisions of W. Va. Code § 49-6-608,
following a termination of parental rights, this Court must
identify reasons for appropriate disposition, including whether
the children should be placed in a relative’s home that is fit and
willing to provide appropriate care and supervision.
It is the policy of DHHR to place children with relatives,
rather than non-relatives, whenever possible.
....
7
The provisions of W. Va. Code § 49-4-302 require
DHHR to notify and afford to the nearest blood relative the
opportunity to take custody of children removed from their
parents.
....
It is both the policy of DHHR and the law of this state
that a relative placement is preferred to a non-relative foster
placement.
It is the law of this state that the best interests of the
children be considered when permanency is determined. In
light of the statutory provisions regarding placement of
children, and decisions of the West Virginia Supreme Court of
Appeals, the best interests of the children include
considerations of being united with relatives for permanency
to afford them the opportunity to develop those family
relationships as they grow and mature.
....
To deny the recognized preference of family placement
as a result of policy, statutory provisions, and state inaction is
contrary to the best interests of the children. . . .
The court further ordered that the children be transitioned to their Uncle and Aunt’s custody
within ninety days.
Following entry of the circuit court’s order, the Guardian moved for a stay
thereof pending an appeal to this Court. The circuit court refused to stay transition of the
children from the Foster Parents to their Uncle and Aunt. Thereafter, the Petitioners filed
the instant appeal from the circuit court’s “Order of Permanent Placement” and requested
this Court to stay the transfer of custody. By order entered June 18, 2018, we granted the
stay.
8
In the meantime, the parties arranged for the children to meet their Uncle and
Aunt for visitations to facilitate the children’s transition to their Uncle and Aunt’s home.
Because the Uncle and Aunt live approximately fifteen hours away, they rented an
apartment close to the Foster Parent’s home so that they could visit more frequently with
the children. After a period of weekly visits between R.L., K.L., and their Uncle and Aunt,
however, R.L.’s psychologist recommended the visits occur less often due to R.L.’s
reactions thereto, which included wetting herself, acting out, and fear and apprehension
when going to locations after she had visited with her Uncle and Aunt in those places but
at times when no visit was scheduled to occur there. R.L. also underwent additional
psychological and diagnostic testing through which it was determined that she is not
autistic but that she does experience intellectual challenges.
Through the parties’ Rule 11 updates,6 it appears that K.L. has continued to
thrive in the Foster Parents’ care. R.L. has continued to receive therapy services and attend
public school, and is also participating in recreation league sports. Visits between the
children and their Uncle and Aunt continued through the summer of 2018 and into
September 2018. Thereafter, the Uncle and Aunt stated that they were unable to travel to
6
Rule 11 of the West Virginia Rules of Appellate Procedure requires the
parties in appeals from abuse and neglect proceedings to provide an update regarding the
subject child’s current status. See W. Va. R. App. P. 11(j) (“The parties shall 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.”).
9
West Virginia to visit with R.L. and K.L. due to their children’s school and sports activities
and because of the significant expense they already had incurred in obtaining counsel to
represent them in these proceedings and renting an apartment to facilitate the summer
visitation schedule. Since their last visit with R.L. and K.L. on September 29, 2018, the
Uncle and Aunt have not visited with or had any other contact with R.L. and K.L.
It is within this context that we consider the Petitioners’ appeal to this Court.
II.
STANDARD OF REVIEW
The instant proceeding is before this Court on appeal from the circuit court’s
final order in an abuse and neglect proceeding. In this context, we previously have held
that,
[a]lthough 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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
10
Additionally, given that the pivotal issue herein is whether there exists a
preference for relatives in addition to the grandparent and sibling preferences established
by the Legislature, we also must consider the propriety of the meaning ascribed to the
pertinent statutes by the circuit court. With respect to such matters, we previously have
held that “[w]here the issue on an appeal from the circuit court is clearly a question of law
or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt.
1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt.
1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424(1995) (“Interpreting a statute or an administrative rule or regulation presents a purely legal
question subject to de novo review.”). In view of these standards, we proceed to consider
the errors assigned by the Petitioners.
III.
DISCUSSION
The case sub judice is before the Court because too many families love R.L.
and K.L. and want to provide the best possible future for these children who have endured
untold abuse and neglect in their young lives. Both the Foster Parents, with whom the
children have resided since their removal from their parents’ home, and the children’s
Uncle and Aunt, who are biologically related to the children, have expressed an interest in
adopting them. Yet only one placement can prevail due to the preference for placing
11
siblings in the same adoptive home.7 In selecting the children’s Uncle and Aunt to be their
permanent custodians, the circuit court determined there exists a “blood relative”
preference in addition to the statutory preferences afforded to siblings and grandparents in
abuse and neglect proceedings. On appeal to this Court, however, the Petitioners challenge
this presumption of an additional preference for relatives, generally, as well as the circuit
court’s conclusion that awarding custody of the children to their Uncle and Aunt is the
permanent placement that most effectively promotes the best interests of R.L. and K.L.
Child abuse and neglect proceedings are governed by statute. See generally
W. Va. Code §§ 49-4-101 to -610 (LexisNexis 2015 & Supp. 2018). See also In re Beth
Ann B., 204 W. Va. 424, 427, 513 S.E.2d 472, 475 (1998) (referring to “statutory scheme
applicable in abuse and neglect proceedings”). As such, our consideration of the law
governing the instant matter is guided by our longstanding rules of statutory construction.
In this regard, we must first look to the statutory language at issue. Syl. pt. 1, Smith v. State
Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object
in construing a statute is to ascertain and give effect to the intent of the Legislature.”). If
the legislative intent is plain, further interpretation is foreclosed, and we must apply, not
construe the language employed by the Legislature. Syl. pt. 2, Crockett v. Andrews, 153
W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied without resort to
7
See note 9, infra.
12
interpretation.”); Syl. pt. 1, Dunlap v. State Comp. Dir., 149 W. Va. 266, 140 S.E.2d 448(1965) (“Where the language of a statute is plain and unambiguous, there is no basis for
application of rules of statutory construction; but courts must apply the statute according
to the legislative intent plainly expressed therein.”); Syl. pt. 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and
plainly expresses the legislative intent will not be interpreted by the courts but will be given
full force and effect.”).
Although the goal of abuse and neglect proceedings is the reunification of
children and their parents,8 when such an outcome cannot be achieved, as was the case
herein, the matter proceeds to disposition under W. Va. Code § 49-4-604 (LexisNexis 2015
& Supp. 2018). Pursuant to W. Va. Code § 49-4-604(b)(6), when the court decides that a
parent’s parental rights should be terminated because there is “no reasonable likelihood
that the conditions of neglect or abuse can be substantially corrected in the near future” and
such disposition is “necessary for the welfare of the child,” the dispositional alternatives
under such circumstances are limited to “commit[ting] the child to the permanent sole
custody of the nonabusing parent, if there be one, or, if not, to either the permanent
guardianship of the department or a licensed child welfare agency.”
8
See State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205(1996) (recognizing goal “to facilitate the reunification of families whenever that
reunification is in the best interests of the children involved”).
13
In this case, the circuit court, in its November 3, 2017 dispositional order,
ordered that, “[b]ased upon necessity for the welfare and best interest of the children, and
other findings . . ., the parental rights of [the Mother] and [the Father] are terminated.” As
such, there was no “nonabusing parent” to whom the court could award custody of R.L.
and K.L. Thus, the only custodial placement available to the court under W. Va. Code
§ 49-4-604(b)(6) was to award guardianship of the children to the DHHR, as it did in this
case when it further ordered that “the permanent custody of the children is committed to
the Department of Health and Human Resources.” No other placement options are
statutorily authorized for a disposition under this section, and no mention is made therein
of a preference to be afforded to the relatives of the child subject to such proceedings.
Despite this clear statutory language, however, the circuit court nevertheless
recognized there to exist a statutory “relative” preference when determining a child’s
permanent placement in an abuse and neglect proceeding. Although the child abuse and
neglect statutory scheme does recognize two familial placement preferences that would
apply to the instant proceedings, namely the sibling preference 9 and the grandparent
9
The sibling preference is set forth in W. Va. Code § 49-4-111 (LexisNexis
2015) and establishes a preference for placing siblings in the same foster care or adoptive
placement, if such placement keeping the siblings together serves their best interests. See
Syl. pt. 4, In re Shanee Carol B., 209 W. Va. 658, 550 S.E.2d 636 (2001) (“W. Va. Code
§ 49-2-14(e) (1995) [now W. Va. Code § 49-4-111] provides for a ‘sibling preference’
wherein the West Virginia Department of Health and Human Resources is to place a child
who is in the department’s custody with the foster or adoptive parent(s) of the child’s
sibling or siblings, where the foster or adoptive parents seek the care and custody of the
child, and the department determines (1) the fitness of the persons seeking to enter into a
foster care or adoption arrangement which would unite or reunite the siblings, and (2)
14
preference,10 neither of these provisions formed the basis for the circuit court’s decision.
Rather, in recognizing a relative preference, generally, the circuit court relied upon various
statutory provisions that do not apply to the case sub judice.
In deciding to place R.L. and K.L. with their Uncle and Aunt, the circuit court
repeatedly reiterated a preference for placing children with their “blood relatives” based
placement of the child with his or her siblings is in the best interests of the children. In any
proceeding brought by the department to maintain separation of siblings, such separation
may be ordered only if the circuit court determines that clear and convincing evidence
supports the department’s determination. Upon review by the circuit court of the
department’s determination to unite a child with his or her siblings, such determination
shall be disregarded only where the circuit court finds, by clear and convincing evidence,
that the persons with whom the department seeks to place the child are unfit or that
placement of the child with his or her siblings is not in the best interests of one or all of the
children.”). See also Syl. pt. 4, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400(1991) (“In cases where there is a termination of parental rights, the circuit court should
consider whether continued association with siblings in other placements is in the child’s
best interests, and if such continued association is in such child’s best interests, the court
should enter an appropriate order to preserve the rights of siblings to continued contact.”).
10
W. Va. Code § 49-4-114(a)(3) (LexisNexis 2015) establishes an adoptive
placement preference for grandparents: “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.” See Syl. pt. 4,
Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005) (“West Virginia Code § 49-
3-1(a) [now W. Va. Code § 49-4-114(a)(3)] provides for grandparent preference in
determining adoptive placement for a child where parental rights have been terminated and
also 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. The statute 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.”). Accord In re
K.E., 240 W. Va. 220, 809 S.E.2d 531 (2018) (ruling that grandparent preference must
yield to best interests of children); In re Hunter H., 227 W. Va. 699, 715 S.E.2d 397 (2011)
(per curiam) (finding that child’s best interests prevail over grandparent preference).
15
both in statutory law and the DHHR’s policies. Neither of these sources of authority,
though, support the circuit court’s decision. First, the circuit court relied upon the
dispositional statute, W. Va. Code § 49-4-604, to find support for its conclusion that,
“following a termination of parental rights, this Court must determine whether the children
should be considered for permanent placement with a fit and willing relative.” Although
this language does appear in this code section, it is not in the provision governing the
disposition of the case made by the circuit court in its November 3, 2017 dispositional
order. Rather, the referenced “fit and willing relative” language is used in connection with
the preceding dispositional alternative wherein the court,
[u]pon a finding that the abusing parent or battered
parent or parents are presently unwilling or unable to provide
adequately for the child’s needs, commit[s] the child
temporarily to the care, custody, and control of the state
department, a licensed private child welfare agency, or a
suitable person who may be appointed guardian by the court.
W. Va. Code § 49-4-604(b)(5) (emphasis added). In conjunction with this disposition, the
court also must “determine under what circumstances the child’s commitment to the
department are to continue,” W. Va. Code § 49-4-604(b)(5)(E), and consider, among other
factors, “whether the child should . . . [b]e considered for permanent placement with a fit
and willing relative,” W. Va. Code § 49-4-604(b)(5)(E)(ii). Insofar as the parental rights
of R.L. and K.L.’s parents were terminated and they were placed in the permanent
guardianship of the DHHR pursuant to W. Va. Code § 49-4-604(b)(6), the dispositional
alternatives of W. Va. Code § 49-4-604(b)(5), which concerns placing children
temporarily with the DHHR, do not apply to the disposition made by the circuit court in its
16
November 3, 2017 dispositional order. Thus, the circuit court’s reliance on the provisions
of W. Va. Code § 49-4-604, generally, do not support its finding of a relative preference.
The next statute cited by the circuit court as authority for a relative preference
also does not apply to the instant proceeding. In support of its ruling, the circuit court also
referenced in its “Order of Permanent Placement” W. Va. Code § 49-6-608, a statute that
does not exist in the West Virginia Code, and which the parties suggest refers to W. Va.
Code § 49-4-608 (LexisNexis 2015) and governs permanency hearings. Pursuant to
W. Va. Code § 49-4-608(a),
[i]f the court finds, pursuant to this article, that the
department is not required to make reasonable efforts to
preserve the family, then, notwithstanding any other provision,
a permanency hearing must be held within thirty days
following entry of the court order so finding, and a permanent
placement review hearing must be conducted at least once
every ninety days thereafter until a permanent placement is
achieved.
In the underlying abuse and neglect proceedings, the circuit court held a disposition hearing
on October 17, 2017, and entered its order memorializing its rulings on November 3, 2017.
Thereafter, the circuit court held a hearing on October 30, 2017, to expedite the completion
of paperwork required by the ICPC and a permanent placement review hearing on January
10, 2018. The final permanent placement hearing was held on March 22, 2018, and the
court entered its “Order of Permanent Placement” on April 30, 2018. As such, the circuit
court, having terminated the parents’ parental rights upon a finding that the family could
not be preserved because the conditions of abuse and neglect could not be substantially
17
corrected, proceeded to a permanent placement decision in accordance with W. Va. Code
§ 49-4-608(a), which does not contain the aforementioned “fit and willing relative”
language or any requirement that the subject children be placed with a “fit and willing
relative.”
This “fit and willing relative” language is contained in the following section,
however, which governs permanency decisions that have not been completed within twelve
months of the DHHR having been awarded custody of the subject children:
[i]f, twelve months after receipt by the department or its
authorized agent of physical care, custody, and control of a
child either by a court-ordered placement or by a voluntary
agreement, the department has not placed a child in an adoptive
home; placed the child with a natural parent, placed the child
in legal guardianship, or permanently placed the child with a
fit and willing relative, the court shall hold a permanency
hearing.
W. Va. Code § 49-4-608(b). This provision does not govern the circuit court’s permanent
placement of R.L. and K.L., though, because (1) the court permanently placed the children
within the first twelve months of terminating their parents’ parental rights and entrusting
them to the DHHR and (2) the children’s permanency plan contemplated adoption and not
mere placement with a relative, as evidenced by the circuit court’s March 15, 2018 “Order
or Permanent Placement Review,” which reflected its rulings during the January 10, 2018
permanent placement review hearing, including the court’s finding that “the permanency
plan for the children is adoption, though the final placement of the children is not yet
determined.” In this order, the court further found that “the permanency plan of adoption
18
for the child is in the child’s best interests,” which ruling presumably applies both to R.L.
and K.L. insofar as both children are referenced elsewhere in the order. Because there is
no requirement that the children be placed with a fit and willing relative if permanency is
achieved within the first twelve months of the DHHR’s assumption of their permanent
guardianship, the circuit court erred by relying on W. Va. Code § 49-4-608 to find that
placement of the children with a relative is mandated by statute.
The circuit court additionally referenced W. Va. Code § 49-4-302(LexisNexis 2015), which authorizes “a family court judge to order custody of a child in
emergency situations.” Under this section, “family court judges are authorized to order the
department to take emergency custody of a child who is in the physical custody of a party
to an action or proceeding before the family court” in certain circumstances evincing
imminent harm or danger to the child, the child is not subject to an abuse and neglect
proceeding before the circuit court, and no reasonable alternatives to removal from the
home exist, and to place the child with the “child’s closest relative” or “an appropriate
relative.” W. Va. Code § 49-4-302(a)(1-3), (g)(1). This provision simply does not apply
to the facts of the case presently before the Court because the underlying abuse and neglect
proceedings were instituted by the DHHR upon their emergency removal of R.L. from the
home and their assumption of emergency custody of K.L. upon his release from the hospital
and were accompanied by the filing of an abuse and neglect petition in the circuit court.
Moreover, the procedural posture of this case has always resided in the Circuit Court of
Randolph County, and no proceedings herein have ever been before the family court. As
19
such, by its very terms, W. Va. Code § 49-4-302 does not justify the circuit court’s
determination that a relative placement preference exists and applies to govern its
permanent placement decision regarding R.L. and K.L.
Finally, the circuit court intimates that the DHHR’s own policy also supports
a conclusion that there exists a preference for relatives when deciding a child’s permanent
placement. This argument already has been considered by this Court and was squarely
rejected. In Kristopher O. v. Mazzone, 227 W. Va. 184, 706 S.E.2d 381 (2011) (per
curiam), this Court considered an argument whereby the DHHR believed it was required
to prefer relatives for adoptive placements in order to comply with federal funding
guidelines and had adopted a policy to that effect that categorically preferred adoptions by
a child’s grandparents or other adult relative “over the non-relative home even if the non-
relative home has the appearance of a better placement choice.” Id. at 192, 706 S.E.2d at
389. Observing that the relevant federal policy merely required a child’s relatives be
considered as an adoptive placement and not that they be presumptively preferred, this
Court explicitly stated that “[i]t is clear from our jurisprudence that the only statutory
preference within our laws regarding the adoption of a child involves grandparents and
reunification of siblings.” 227 W. Va. at 193, 706 S.E.2d at 390. The Court, after
reviewing case law reiterating the grandparent preference, further explained that “[i]t does
not appear . . . that a preference is granted to blood relatives generally.” Id. Accord In re
K.E., 240 W. Va. 220, 225 n.9, 809 S.E.2d 531, 536 n.9 (2018) (“We have previously
observed that West Virginia law does not grant a permanency preference to blood relatives,
20
generally. The grandparent preference is the sole exception to that rule, and, even then, the
preference is tempered by considerations of the child’s best interests.” (citations omitted)).
Moreover, directly addressing the DHHR’s policy concerns, the Court clarified that
“compliance with federal law does not require that a child be placed with a blood relative,
it only requires that such placement be considered.” Id.Based upon our review of the law governing abuse and neglect proceedings
in this State and the authorities relied upon by the circuit court in rendering its rulings,
below, we reach the same conclusion as our brethren in the Kristopher case and echo that
Court’s declaration that no preference is afforded to blood relatives, generally, when
placing a child for adoption. Accordingly, we now specifically hold that only two statutory
familial preferences applicable to the adoption of a child are recognized in this State: (1) a
preference for adoptive placement with the child’s grandparents set forth in W. Va. Code
§ 49-4-114(a)(3) (LexisNexis 2015) and (2) a preference for placing siblings into the same
adoptive home pursuant to W. Va. Code § 49-4-111 (LexisNexis 2015). Apart from the
grandparent and the sibling preferences, there does not exist an adoptive placement
preference for a child’s blood relatives, generally. Thus, based upon the foregoing
authorities, it is clear that the circuit court erred by finding there to exist a blood relative
preference in this State and to rely thereon as a basis for placing R.L. and K.L. with their
Uncle and Aunt.
21
In addition to their contention that the circuit court erred by finding there to
exist a “blood relative” preference, the Petitioners also argue that the circuit court
improperly assessed the best interests of R.L. and K.L. when placing them with their Uncle
and Aunt because it concluded that “the best interest of the children include considerations
of being united with relatives for permanency.” To support their argument that the
children’s best interests would be promoted by placing them with the Foster Parents and
not with their Uncle and Aunt, the Petitioners cite record evidence demonstrating R.L.’s
severe separation anxiety and intolerance for change, as well as treatment notes regarding
her neurological deficits and significant social, educational, and developmental delays.
The preeminent concern in all cases involving children, be it an abuse and
neglect proceeding or a matter of child custody, is the best interests of the children. In this
regard, we specifically have held that
[o]nce a court exercising proper jurisdiction has made a
determination upon sufficient proof that a child has been
neglected and his natural parents were so derelict in their duties
as to be unfit, the welfare of the infant is the polar star by which
the discretion of the court is to be guided in making its award
of legal custody.
Syl. pt. 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). See also Syl. pt. 2,
State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948) (“In 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.”). Moreover, regardless of whether there exists a
22
placement preference that applies to the facts of this case,11 any preference always is
tempered by a consideration of the children’s best interests. See Syl. pt. 3, In re Katie S.,
198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have substantial rights that must
be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.”). See also Syl. pt. 5, in part, Carter
v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996) (“In . . . custody matters, we have
traditionally held paramount the best interests of the child.”). In other words, if allegiance
to a preferential placement does not promote the children’s best interests, such preference
must yield to the placement that is most beneficial to the children. See In re Elizabeth F.,
225 W. Va. 780, 787, 696 S.E.2d 296, 303 (2010) (per curiam) (“[A]doption by a child’s
grandparents is permitted only if such adoptive placement serves the child’s best interests.
If, upon a thorough review of the entire record, the circuit court believes that a
grandparental adoption is not in the subject child’s best interests, it is not obligated to prefer
the grandparents over another, alternative placement that does not serve the child’s best
interests.” (citations omitted)). See also Syl. pt. 5, Napoleon S. v. Walker, 217 W. Va. 254,
617 S.E.2d 801 (2005) (“By specifying in West Virginia Code § 49-3-1(a)(3) [now W. Va.
Code § 49-4-114(a)(3)] that the home study must show that the grandparents ‘would be
suitable adoptive parents,’ the Legislature has implicitly included the requirement for an
11
Having found that no blood relative preference exists vis-à-vis adoptive
placements, the only other preferences potentially applicable to the case sub judice are the
grandparent preference, which the parties have not asserted herein, and the sibling
preference, which the parties have conceded has been followed by considering adoptive
placements for the children that would place them in the same household.
23
analysis by the Department of Health and Human Resources and circuit courts of the best
interests of the child, given all circumstances of the case.”).
It is apparent from a review of the record in this case that the severe anxiety
suffered by R.L. coupled with the regression of her behaviors following her visits with the
Uncle and Aunt suggest that the more suitable, and least traumatic, placement to satisfy
R.L.’s best interests would be with the Foster Parents. Moreover, the Court is deeply
troubled by the virtual abandonment of the children by the Uncle and Aunt who previously
fought so vigilantly to attain their custody. While financial constraints and other familial
obligations are understandable impediments to more frequent visits with R.L. and K.L.,
which require a fifteen hour journey, the Uncle and Aunt’s lack of any contact whatsoever
with the children for the past six and one-half months, and counting, causes the Court great
concern regarding the Uncle and Aunt’s actual commitment to these children, particularly
when such lengthy absences and periods of no contact can seem like an eternity to a young
child. Furthermore, continued long distance interaction with the children, through cards or
letters, phone calls or video chats, or simply email undeniably would be an easy and cost-
effective method of maintaining contact and communicating with the children to allay their
fears and promote their sense of comfort and security with the Uncle and Aunt. But, alas,
the Uncle and Aunt have failed to take even these most basic and simplistic steps to
facilitate a relationship with, and demonstrate their commitment to undertaking the
custodial responsibility for, R.L. and K.L.—the very same children the Uncle and Aunt
claim they want to adopt.
24
Given R.L.’s fragile emotional state and the tender years of K.L., during
which time sudden and abrupt changes in caretakers is discouraged,12 we simply do not
find that removing R.L. and K.L. from the home of the Foster Parents, in which they have
flourished, and placing them with relatives, whose present commitment to the children is
questionable at best and practically nonexistent at worst, would promote the children’s best
interests. Rather, we find the best interests of R.L. and K.L. would best be promoted by
allowing them to remain in the Foster Parents’ home. In the Foster Parents’ household,
R.L. finds great comfort and security, which has allowed her to overcome many obstacles
and to thrive in their care. For K.L., the Foster Parents’ home is the only home he has ever
known in his short life. Accordingly, we reverse the circuit court’s April 30, 2018 “Order
of Permanent Placement” placing the children with their Uncle and Aunt and remand this
case for entry of an order finding that placement with the Foster Parents promotes the best
interests of R.L. and K.L. and permanently placing the children with the Foster Parents.
12
See Syl. pt. 3, in part, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d
400 (“It is a traumatic experience for children to undergo sudden and dramatic changes in
their permanent custodians.”).
25
IV.
CONCLUSION
For the foregoing reasons, the April 30, 2018 “Order of Permanent
Placement” of the Circuit Court of Randolph County is hereby reversed, and this case is
remanded for further proceedings consistent with this Opinion.
Reversed and Remanded.
26