In re G.G. ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2023 Term
June 8, 2023
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 22-0365 OF WEST VIRGINIA
_____________________
IN RE: G.G.
___________________________________________________________
Appeal from the Circuit Court of Raleigh County
Honorable Darl W. Poling, Judge
Civil Action No. 20-JA-73-P
AFFIRMED
_________________________________________________________
Submitted: April 26, 2023
Filed: June 8, 2023
Joseph H. Spano, Jr., Esq. Patrick Morrisey, Esq.
Pritt & Spano, PLLC Attorney General
Charleston, West Virginia Brittany Ryers-Hindbaugh, Esq.
Attorney for Petitioners, Assistant Attorney General
S.M and A.M. Charleston, West Virginia
Attorneys for WV DHHR
Robert P. Dunlap, II, Esq. Amber R. Hinkle, Esq.
Dunlap and Associates, PLLC Taylor & Hinkle
Beckley, West Virginia Beckley, West Virginia
Attorney for Intervenors, Guardian ad Litem
J.M. and A.M.
JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICES WOOTON and BUNN concur and reserve the right to file concurring opinions.
SYLLABUS BY THE COURT
1. “‘This Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4,
Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, Napoleon S. v.
Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
2. “Questions relating to . . . custody of the children are within the sound
discretion of the court . . . its action with respect to such matters will not be disturbed on
appeal unless it clearly appears that such discretion has been abused.” Syl., in part, Nichols
v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).
3. “Where 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).
4. “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
i
placement preference for a child’s blood relatives, generally.” Syl. Pt. 2, In re K.L. and
R.L., 241 W. Va. 546, 826 S.E.2d 671 (2019).
5. West Virginia Code § 49-2-126(a)(5) (2020) requires a circuit court
to conduct a best-interest-of-the-child analysis before removing a foster child from his or
her foster family home and placing that child in a kinship placement.
6. As written, West Virginia Code § 49-2-126(a)(5) (2020) simply
provides a right to a foster child, not an adoptive placement preference for the child’s
relatives.
7. “The best interests of a child are served by preserving important
relationships in that child’s life.” Syl. Pt. 2, State ex rel. Treadway v. McCoy, 189 W. Va.
210, 429 S.E.2d 492 (1993).
8. “[T]he primary goal in cases involving abuse and neglect . . . must be
the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W. Va. 79,
479 S.E.2d 589 (1996).
9. “[I]n a contest involving the custody of an infant where there is no
biological parent involved, the best interests of the child are the polar star by which the
ii
discretion of the court will be guided.” Syl. Pt. 1, in part, State ex rel. Treadway v. McCoy,
189 W. Va. 210, 429 S.E.2d 492 (1993).
iii
HUTCHISON, Justice:
The petitioners, S.M. 1 and A.M., appeal the April 11, 2022, order of the
Circuit Court of Raleigh County denying their motion to intervene in this abuse and neglect
case involving their niece, G.G. The petitioners filed their motion after the parental rights
of G.G.’s biological parents were terminated, seeking to intervene at the permanency stage
of the proceedings below and, ultimately, adopt G.G. In denying the petitioners’ motion,
the circuit court found that it was in G.G.’s best interests to be adopted by the respondents,
J.M. and A.M., 2 who have been her foster parents since July 1, 2021. In this appeal, the
petitioners contend that the circuit court erred in its finding. They argue that the Foster
Child Bill of Rights, codified at West Virginia Code § 49-2-126 (2020), provides a
preference for G.G. to be placed with her blood relatives and that because they were found
to be a fit and suitable placement, they should have been allowed to adopt G.G. Upon
consideration of the parties’ briefs and oral arguments, the submitted appendix records,
and the pertinent authorities, we find no error and, therefore, affirm the circuit court’s
decision.
1
In cases involving sensitive facts, we use initials to identify the parties. See W.
Va. R. App. Proc. 40(e); see also State v. Edward Charles L., 183 W. Va. 461, 645 n.1,
398 S.E.2d 123, 127 n.1 (1990).
2
Because G.G.’s aunt and her foster mother have the same initials, we refer to the
parties as the petitioners and the respondents rather than using their initials.
1
I. Facts and Procedural Background
In May of 2019, approximately one year before G.G. was born, the West
Virginia Department of Health and Human Resources (“DHHR”) instituted an abuse and
neglect proceeding against G.G.’s mother alleging that she had failed to supervise her other
two children, A.R. and M.R., and was not providing them with adequate food and housing.
There was also an allegation of drug activity in the home. G.G. mother’s stipulated to the
allegations in the abuse and neglect petition, and at the time of G.G.’s birth, she had been
granted a post-adjudicatory improvement period. Upon admission to the hospital to give
birth, G.G.’s mother tested positive for heroin. Consequently, the DHHR amended the
abuse and neglect petition in June 2020 to allege drug use by G.G.’s mother and to add
G.G. to the proceedings. The DHHR then placed G.G. with fictive kin. 3
In April 2021, G.G.’s mother’s parental rights to her two older children were
terminated, 4 and she was granted a post-adjudicatory improvement period with respect to
G.G. On July 1, 2021, the DHHR removed G.G. from the custody of her fictive kin and
placed her with the respondents. While the record is unclear as to exactly why G.G. was
3
The fictive kin are not clearly identified in the record, but they appear to have been
family friends. See W. Va. Code § 49-1-206 (2021) (defining “fictive kin” as “an adult of
at least 21 years of age, who is not a relative of the child, as defined herein, but who has an
established, substantial relationship with the child”).
4
At that juncture, the two older children had been in the legal custody of the DHHR
for fifteen of the last twenty-two months, and the circuit court found that it was in their
best interests to terminate their mother’s parental rights.
2
removed from her initial placement, it appears to have been due to a housing issue.
Thereafter, G.G.’s biological father voluntarily relinquished his parental rights, and G.G.’s
mother’s parental rights were involuntarily terminated at a final dispositional hearing in
September 2021. 5
On November 1, 2021, the respondents filed a motion to intervene in the
abuse and neglect proceedings, seeking to adopt G.G. Ten days later, the petitioners filed
their motion to intervene, also seeking permanent placement of G.G. Because the
petitioners reside in Georgia, the DHHR was required to initiate a home study pursuant to
the Interstate Compact on the Placement of Children (“ICPC”). See W. Va. Code §§ 49-
7-101 & 102 (2015). While that process was ongoing, the DHHR arranged for the
petitioners to have video calls with G.G. The petitioners were also afforded three in-person
visits with G.G. prior to the hearing on the motions to intervene.
The circuit court held the hearing on the parties’ motions to intervene over
the course of two days in March 2022. Both the petitioners and the respondents called
multiple witnesses to testify, and the DHHR presented testimony as well. On April 11,
2022, the circuit court issued its ruling denying the petitioners’ motion to intervene and
5
G.G.’s mother appealed the termination of her parental rights to this Court, and we
upheld the circuit court’s order by memorandum decision entered on April 14, 2022. See
In re G.G., No. 21-0774, 2022 WL 1115826 (W. Va. Apr. 14, 2022) (memorandum
decision).
3
granting the motion filed by the respondents. The circuit court found that both the
petitioners and the respondents were able to provide a suitable and fit placement for G.G.
and noted that both had indicated a willingness to accept placement of her older siblings. 6
The circuit court further found, however, that the determinative factor was G.G.’s best
interests and that, given the amount of time she had resided with the respondents and the
significant attachments that undoubtedly had been established, she should remain in that
placement. Upon entry of the circuit court’s order, this appeal followed.
II. Standard of Review
We recently adopted a standard of review for appeals concerning the denial
of motions for permissive intervention in child abuse and neglect proceedings. See Syl. Pt.
1, In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022). Although the petitioners in this
case are appealing the denial of their motion to intervene, the procedural posture of this
case differs vastly from In re H.W. In this case, the circuit court held a full evidentiary
hearing after the petitioners and the respondents filed their motions to intervene and then
issued an order that not only denied the petitioners’ motion, but also determined G.G.’s
permanent placement. While the circuit court did not grant the petitioners’ motion to
intervene, it allowed them to fully participate in the hearing to the same extent it permitted
the respondents, whose motion to intervene was ultimately granted. Accordingly, “‘[t]his
6
The record indicates that abuse and neglect proceedings were instituted again
regarding G.G.’s siblings. Those proceedings are separate from this case.
4
Court reviews the circuit court’s final order and ultimate disposition under an abuse of
discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4, Burgess v. Porterfield, 196
W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, Napoleon S. v. Walker, 217 W. Va. 254,
617 S.E.2d 801 (2005). Because “[q]uestions relating to . . . custody of the children are
within the sound discretion of the court . . . its action with respect to such matters will not
be disturbed on appeal unless it clearly appears that such discretion has been abused.” Syl.,
in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). Finally, we apply the
de novo standard of review to our examination of West Virginia Code § 49-2-126. As we
have held, “[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). With
these standards in mind, we proceed to review the circuit’s court decision.
III. Discussion
In this appeal, the petitioners argue that the circuit court’s decision to allow
the respondents to intervene and, ultimately, adopt G.G. is contrary to a clearly established
preference for relative placement set forth in the Foster Child Bill of Rights. In particular,
the petitioners rely on West Virginia Code § 49-2-126(a)(5) which provides that foster
children have “[t]he right to be placed in a kinship placement, when such placement meets
the objectives set forth in this article.” The petitioners contend that because the circuit
court found that they were a fit and proper placement for G.G. and were willing to accept
5
placement of her siblings, they, as G.G.’s maternal aunt and uncle, should have been
allowed to intervene and ultimately adopt G.G. in accordance with the kinship placement
right afforded by the Foster Child Bill of Rights.
The petitioners maintain that the circuit court erred when it concluded that
“the determinative factor in this action is that G.G. has been placed with the foster parents
for a period of nine (9) months . . . [and] significant attachments have undoubtedly been
established with the foster parents, their household, routines, and parenting during this
time.” Relying upon West Virginia Code § 49-4-111(b)(3) (2015), 7 they assert that it is
only when a child has been with a foster family for more than eighteen months that a court
must consider the child’s best interests when determining whether to terminate the foster
care arrangement. In addition, the petitioners argue that the circuit court court’s conclusion
that significant attachments between G.G. and the respondents had been established is
simply “not true.” In that regard, they contend, without any citing any authority other than
7
West Virginia Code § 49-4-111(b) provides, in pertinent part:
When a child has been placed in a foster care
arrangement for a period in excess of eighteen consecutive
months, and the department determines that the placement is a
fit and proper place for the child to reside, the foster care
arrangement may not be terminated unless the termination is in
the best interest of the child and:
****
(3) The foster care arrangement is terminated due to the
child being united or reunited with a sibling or siblings[.]
6
what they say is “commonsense,” that “[n]o child remembers anything before the age of
two and in most cases three or four years of age” and “no child would remember being
separated from a foster parent at that age.” Finally, the petitioners argue that they should
not be penalized because of the delay resulting from the ICPC process and continuances
issued by the circuit court that caused G.G. to be in the custody of the respondents for eight
months prior to the hearing on the motions to intervene, noting that they attempted to obtain
placement of G.G. at the outset of the proceedings below.
We begin our analysis by considering the petitioners’ argument that there is
an adoptive placement preference for a child’s blood relatives. This Court first rejected
that argument in Kristopher O. v. Mazzone, 227 W. Va. 184, 706 S.E.2d 381 (2011). In
that case, a child had been removed from her foster parents with whom she had resided for
twenty-two consecutive months and placed with her paternal aunt. Id. at 188, 706 S.E.2d
at 385. The decision was based on the DHHR’s internal policy at the time that provided a
preference for relatives for adoptive placement even if a non-relative home appeared to be
a better placement choice. Id. at 192, 706 S.E.2d at 389. The DHHR maintained that the
policy was necessary to comply with federal funding guidelines. Id. Upon review, this
Court determined 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” and that “the only
statutory preference within our laws regarding the adoption of a child involves
grandparents and reunification of siblings.” Id. at 193, 706 S.E.2d at 390. Accordingly,
7
the circuit court’s decision was reversed, and the case was remanded for a new permanency
hearing.
We reiterated our finding that there is no adoptive placement preference for
blood relatives more recently in In re K.L. and R.L., 241 W. Va. 546, 826 S.E.2d 671(2019). In that case, the circuit court had awarded custody of two children to a paternal
aunt and uncle finding them to be “the preferred placement because they are the children’s
‘blood relatives.’” Id. at 551, 826 S.E.2d at 676. Upon review, we flatly rejected the circuit
court’s finding and reversed the decision, echoing our determination in Kristopher O. “that
no preference is afforded to blood relatives, generally, when placing a child for adoption.”
Id. at 556, 826 S.E.2d at 681. Indeed, we specifically held:
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.
In re K.L., 241 W.Va. at 547, 826 S.E.2d at 672, syl. pt. 2.
We realize, of course, that Kristopher O. and In re K.L. were decided before
the Foster Child Bill of Rights was enacted. In 2020, the Legislature rewrote West Virginia
Code § 49-2-126 and reenacted it as the Foster Child Bill of Rights. This statute now
recognizes that “[f]oster children and children in a kinship placement are active and
8
participating members of the child welfare system” and affords them certain enumerated
rights. W. Va. Code § 49-2-126(a). One of those rights is “the right to be placed in a
kinship placement.” W. Va. Code § 49-2-126(a)(5). This subsection further states,
however, that the right is only provided “when such placement meets the objectives set
forth in this article.” Id. And, as we determined in In re R.S., 244 W. Va. 564, 572, 855
S.E.2d 355, 363 (2021), this means “the statute requires consideration of the child’s ‘needs’
or best interest” in accordance with pre-existing statutory law and the significant body of
case law of this Court concerning abuse and neglect proceedings. Id.In re R.S. presented the first opportunity for this Court to examine the Foster
Child Bill of Rights. In that case, our focus was on West Virginia Code § 49-2-126(a)(6),
which provides a child
the right, when placed with a foster of [sic] kinship family to
be matched as closely as possible with a family meeting the
child’s needs, including when possible, the ability to remain
with siblings.
That provision was at issue because R.S., the youngest of five children who were removed
from their biological parents due to allegations of abuse and neglect, had been placed in a
foster home separate from his siblings. In re R.S., 244 W. Va. at 567, 855 S.E.2d at 358.
Following a timeline similar to the case at bar, R.S. was placed with his foster parents in
July of 2019, and his biological parents’ parental rights were terminated in December 2019.
Approximately three months later, R.S.’s foster parents filed a motion to intervene, seeking
to adopt R.S. Id. at 568, 855 S.E.2d at 359. At a review hearing the next month, the DHHR
9
advised the circuit court that it had located another foster family that would accept
placement of all five siblings. That family’s home study was approved, and R.S.’s siblings
were placed with them. Id. R.S. was not immediately placed with this new foster family,
however, because his current foster parents asserted that he had developed a secure
attachment to them, and they requested that the circuit court order an expert assessment to
examine the risks of removing R.S. from their care. The circuit court granted the request,
ordered an expert bonding assessment, and scheduled a full evidentiary hearing regarding
R.S.’s permanent placement that was to be held after the assessment was completed. Id.
However, before the assessment report was submitted, the circuit court issued another order
requiring R.S. to be immediately removed from his current foster family and permanently
placed with his siblings to comply with the newly enacted Foster Child Bill of Rights. In
its order, the circuit court concluded that “under this new legislation it had no authority to
consider R.S.’s best interests over the child’s right to be placed with his siblings.” Id.
R.S.’s foster parents appealed the decision, and we undertook an examination of the effect
of the Foster Child Bill of Rights on R.S.’ s placement.
Utilizing our rules of statutory construction, we first observed in In re R.S.
that the Foster Child Bill of Rights “does not include any mandatory language, such as the
word ‘shall’ or ‘must.’” 244 W. Va. at 571, 655 S.E.2d at 362. With no evidence of
legislative intent to give mandatory direction, we found that “W. Va. Code § 49-2-
126(a)(6) directs that a child’s ability to remain with siblings is to be included as a factor
when making a permanent placement ruling.” Id. Continuing to apply the statute as written
10
as we are required to do, 8 we then determined that the language “‘to be matched as closely
as possibly with a family meeting the child’s needs’ requires a circuit court to conduct an
analysis of 1) the child’s needs, and 2) the family’s ability to meet those needs.” In re R.S.,
244 W. Va. at 571, 855 S.E.2d at 362. In other words, the court “must consider whether
placement with a particular family meets the child’s needs, an analysis that is generally
synonymous with consideration of what is in the child’s best interests.” Id.
We found in In re R.S. that not only was the circuit court’s ruling not
supported by the plain language of the statute, but the decision conflicted with our pre-
existing statutory and case law addressing the sibling preference. Id. Specifically, we
found that the circuit court’s conclusion that the Foster Child Bill of Rights mandated that
R.S. be placed with siblings was completely contrary to West Virginia Code § 49-4-111(e),
which does provide a sibling placement preference but also requires a determination that
reunification of siblings is in the best interests of all the children. Id. In addition to the
statutory requirement to consider the children’s best interests, we found that the circuit
court’s decision was “in direct opposition to well-established caselaw from this Court in
which we have held that ‘the best interests of the child is the polar star by which decisions
must be made which affect children.’” 244 W. Va. at 573, 855 S.E.2d at 364, quoting
8
See 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.”).
11
Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989). Accordingly,
we held in syllabus point eleven of In re R.S. that
W. Va. Code § 49-2-126(a)(6) (2020) requires a circuit
court to conduct a best interest of the child analysis by
considering a child’s needs, and a family’s ability to meet those
needs. One factor that may be included in this analysis is a
child’s ability to remain with his or her siblings. A circuit court
considering this factor should conduct its analysis in
conformity with W. Va. Code § 49-4-111(e) (2015).
244 W. Va. at 566, 855 S.E.2d at 357.
Our analysis in In re R.S. with respect to subsection (a)(6) of West Virginia
Code § 49-2-126 is equally applicable to subsection (a)(5). Like subsection (a)(6), West
Virginia Code § 49-2-126(a)(5) contains qualifying language that directs that a child’s
placement in a kinship home should only occur “when such placement meets the objectives
set forth in this article.” This article, which addresses the State’s responsibilities for
children, is part of Chapter 49, which has the stated purpose of providing a system of child
welfare services to assure that “appropriate care is given and maintained” for children who
become participating members of this system. W. Va. Code § 49-1-105 (2015). To achieve
that purpose, the child’s best interests must be considered. Indeed, we have made clear
that “regardless of whether there exists a placement preference that applies to the facts of
th[e] case, any preference always is tempered by a consideration of the children’s best
interests.” In re R.S., 244 W. Va. at 573-74, 855 S.E.2d at 364-65 (citation omitted).
Stated another way, “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
12
to the children.” Id. (citation omitted); see also In re Elizabeth F., 225 W. Va. 780, 786-
87, 696 S.E.2d 296, 302-303 (2010) (explaining that “an integral part of implementation
of the grandparent preference, as with all decisions concerning minor children, is the best
interest of the child”). Accordingly, we now hold that West Virginia Code § 49-2-
126(a)(5) requires a circuit court to conduct a best-interest-of-the-child analysis before
removing a foster child from his or her foster family home and placing that child in a
kinship placement. Applying our new holding to this case, we find that the circuit court
did not err in considering G.G.’s best interests in ruling upon the parties’ motions to
intervene. 9
We wish to make clear that our holding today should not be construed to
mean that we have found that West Virginia Code § 49-2-126(a)(5) provides an adoptive
placement preference for a child’s blood relatives generally. This subsection does not
contain any language to that effect, and accordingly, we decline to declare that such a
preference exists. As we have previously explained, “[c]ourts are not free to read into the
language what is not there, but rather should apply the statute as written.” State ex rel.
Frazier v. Meadows, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994). Notably, when
9
The petitioners’ reliance upon West Virginia Code § 49-4-111(b)(3) was
misplaced. As we made clear above, any decision concerning a minor child requires a
consideration of the child’s best interests. Moreover, this statutory provision has no
application in this instance as it pertains to the reunification of a child with a sibling after
the child has resided in a separate foster home for a period in excess of eighteen months.
See n. 7, supra. Those are not the circumstances in this case.
13
providing adoptive placement preferences, the Legislature has done so through separate
statutory enactments with clear language mandating that those placements be considered
prior to any other prospective adoptive placement. See § W.Va. Code 49-4-114(a)(3)
(2015) (providing grandparent preference) and W.Va. Code § 49-4-111 (2015) (providing
sibling preference). As written, West Virginia Code § 49-2-126(a)(5) simply provides a
right to a foster child, not an adoptive placement preference for the child’s relatives. 10
We now turn to the petitioners’ argument that the circuit court erred in its
assessment of G.G.’s best interests. In that regard, the petitioners contend that G.G. had
not lived with her foster parents long enough to have formed a significant bond and that
given that she was just two years old, she would have no memory of being separated from
them. Contrary to the petitioners’ unsupported assertions, it is well-established that
significant bonds are formed between a child and his or her caregivers at this young age,
and, critically, any disruption of those bonds has the potential to severely impact the child’s
growth and development. We have observed:
As explained in J. Goldstein, A. Freud & J. Solnit,
Beyond the Best Interests of the Child 32–33 (1973),
10
We are mindful that West Virginia Code § 49-4-601a (2020), discussed further
herein, does provide a preference for children to be placed with relatives or fictive kin when
they are initially removed from the custody of their biological parents. Obviously, when a
placement is made with relatives or fictive kin at the removal stage of the proceedings and
parental rights are later terminated, that home would be the adoptive placement choice
although it would still be subject to a best-interest-of-the-child analysis. However, where
a child is not residing in a kinship placement at the permanency stage of the proceedings,
West Virginia Code § 49-2-126(a)(5) does not provide an adoptive placement preference
for blood relatives.
14
Continuity of relationships, surroundings and
environmental influence are essential for a child’s
normal development. Since they do not play the same
role in later life, their importance is often underrated by
the adult world.
Physical, emotional, intellectual, social, and moral
growth does not happen without causing the child
inevitable internal difficulties. The instability of all
mental processes during the period of development
needs to be offset by stability and uninterrupted support
from external sources. Smooth growth is arrested or
disrupted when upheavals and changes in the external
world are added to the internal ones.
This is especially true during the first three years of life. Burton
L. White, Ph.D., in his book, The First Three Years of Life
(1985), begins his preface as follows:
After seventeen years of research on how human beings
acquire their abilities, I have become convinced that it
is to the first three years of life that we should now turn
most of our attention. My own studies, as well as the
work of many others, have clearly indicated that the
experiences of those first years are far more important
than we had previously thought. In their simple
everyday activities, infants and toddlers form the
foundations of all later development.
Id. at v.
In the first chapter of her book, The Critical Years: A Guide for
Dedicated Parents (1984), Doris E. Durrell, Ph.D., explains
the following:
Throughout my years of experience in raising children
and treating children in a clinical setting, I have been
continually impressed with the degree to which
personality has been formed by the time a child is three
years old. By this time, certain positive behaviors will
have been established which will continue to bring your
child positive responses, or negative behaviors may be
15
established which will cause your child problems with
peers and adults.
Id. at 9.
In re Carlita B., 185 W. Va. 613, 623, 408 S.E.2d 365, 375 (1991).
Recognizing that “‘continuity of relationships, surroundings and
environmental influence’ during a child’s first three years of life” is vitally important, 11
this Court has “developed a policy that stable relationships should be preserved whenever
feasible.” State ex rel. Treadway v. McCoy, 189 W. Va. 210, 213, 429 S.E.2d 492, 495
(1993). In fact, we have specifically held that “[t]he best interests of a child are served by
preserving important relationships in that child’s life.” Id. at 210, 429 S.E.2d at 492, syl.
pt. 2; see also Syl. Pt. 11, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996) (“A
child has a right to continued association with individuals with whom he has formed a close
emotional bond, including foster parents, provided that a determination is made that such
continued contact is in the best interests of the child.”). Accordingly, “in cases where a
child has been in one home for a substantial period, ‘[h]is environment and sense of security
should not be disturbed without a clear showing of significant benefit to him.’” In re
Brandon, 183 W. Va. 113, 121, 394 S.E.2d 515, 523 (1990), quoting Lemley v. Barr, 176
W. Va. 378, 386, 343 S.E.2d 101, 110 (1986) (internal quotations and citations omitted)).
11
In re K.E. & K.E., 240 W. Va. 220, 227, 809 S.E.2d 531, 538 (2018) (additional
citation omitted).
16
In this case, the circuit court found that G.G. had resided with the respondents
for almost half of her life, which was during “one of the most formative points in a young
life.” The circuit court further found that “G.G. ha[d] become accustomed to the home and
family providing for her care during [this] extended period of her life” and that “significant
attachments undoubtedly have been established with the [respondents], their household,
routines, and parenting during this time.” Although both the petitioners and the
respondents were determined to be fit, able, and willing to accept placement of G.G., the
circuit court concluded that the bonds and attachments that had been established between
G.G. and the respondents were determinative of G.G.’s best interests. Thus, the circuit
court decided that G.G. should remain in her current placement with the respondents.
Having carefully reviewed the record, we find that the evidence presented
during the hearing below supports the circuit court’s decision. In that regard, there was
evidence indicating that G.G. referred to the respondents as “Mommy” and “Daddy” and
viewed them as her parents. The treatment coordinator, who was responsible for
overseeing G.G.’s placement with the respondents, testified that she had been in the foster
home biweekly and that having observed G.G. interact with the respondents for more than
six months, she believed G.G. had developed an “extreme bond” with them. Elaborating,
she testified,
And what I mean by “extreme bond” is she is a very
happy-go-lucky little girl. Whenever they are not there or if
they use the bathroom or walk out to the garage to let the dog
in, she instantly changes and, in my professional opinion, that
is an extreme bond.
17
In addition, the guardian ad litem submitted a comprehensive report in which she
concluded that “moving G.G. at this time would be contrary to her best interests.” She
recommended a permanency plan for G.G. to be adopted by the respondents. Given this
evidence, we are unable to find that the circuit court abused its discretion in its assessment
of G.G.’s best interests.
As a final matter, we consider the petitioners’ argument that it was the delay
caused by the ICPC process that prevented them from obtaining custody of their niece.
They contend that had the DHHR complied with West Virginia Code § 49-4-601a (2020)
at the outset of this case, they would have been able to adopt G.G. West Virginia Code §
49-4-601a provides, in pertinent part:
When a child is removed from his or her home,
placement preference is to be given to relatives or fictive kin
of the child. If a child requires out-of-home care, placement of
a child with a relative is the least restrictive alternative living
arrangement. The department must diligently search for
relatives of the child and fictive kin within the first days of a
child’s removal and must identify and provide notice of the
child’s need for a placement to relatives and fictive kin who
are willing to act as a foster or kinship parent.
West Virginia Code § 49-4-601a was a newly enacted statute in June 2020,
and it is unclear from the record before us as to whether it had become effective at the time
G.G. was removed from her biological mother’s custody. Regardless of when the statute
became applicable though, the record shows that the DHHR complied with its provisions.
18
As discussed above, G.G. was initially placed with fictive kin, where she resided for several
months.
The record further indicates that G.G.’s initial placement was made based on
information provided by her biological mother and that she never advised the DHHR that
she had a sister living in another state. 12 Nonetheless, the petitioners maintain that they
independently contacted the DHHR when G.G. was removed from her biological mother’s
custody and inquired about being a placement for G.G. Yet, G.G.’s DHHR caseworker
testified that he never received such a call and that he believed that any initial inquiry made
by the petitioners may have occurred a year earlier when G.G.’s siblings were removed
from their mother’s home. While there is disagreement as to when the petitioners first
sought to obtain custody of G.G., we need not dwell on these disputed facts. “Regardless
of who is responsible for the delay in this case, the child is the unfortunate victim.”
Department of Human Services v. La Rea Ann C.L., 175 W. Va. 330, 337 n.8, 332 S.E.2d
632, 638 n.8 (1985).
Irrespective of when the DHHR was informed that the petitioners wished to
obtain custody of G.G., the fact remains that G.G. was placed in the respondents’ home,
and she resided there for nine months before this matter was decided by the circuit court.
12
It appears from the record that the relationship between G.G.’s mother and her
sister had deteriorated during the time that the abuse and neglect proceedings occurred
below.
19
The decision regarding G.G.’s permanent placement had to be made based upon the
circumstances existing at that time, not when the petitioners contend that they first sought
custody of G.G. While we understand the petitioners’ desire to obtain custody of their
niece and be a part of her life, bureaucratic errors and delays cannot dictate the outcome of
a case where a child’s future is at stake. As we have long held, “the primary goal in cases
involving abuse and neglect . . . must be the health and welfare of the children.” Syl. Pt. 3,
in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). Therefore, as discussed
above, “in a contest involving the custody of an infant where there is no biological parent
involved, the best interests of the child are the polar star by which the discretion of the
court will be guided.” McCoy, 189 W. Va. at 210, 429 S.E.2d at 492, syl. pt. 1, in part.
Here, the circuit court determined that it is in G.G.’s best interests to remain in her current
placement with the respondents, and we have found no basis to set aside that determination.
IV. Conclusion
Accordingly, for the foregoing reasons, the circuit court’s April 11, 2022,
order is affirmed.
Affirmed.
20