In Re: B.W. and R.B.
17-0303
| W. Va. | Sep 25, 2017Background
- DHHR filed abuse and neglect petition after 2-year-old B.W. was brought to ER with multiple bruises of varying ages, penile laceration, and tested positive for marijuana; parents removed child from hospital and could not account for injuries.
- DHHR identified paternal grandparents (J.W. and D.W.) as potential placement but declined due to concern they knew of abuse and failed to report; children were placed with foster parents; mother later had R.B., who was added to the proceeding and placed with same foster family.
- Circuit court adjudicated both parents as abusing parents and terminated their parental rights; petitioners (grandparents) and foster parents intervened; petitioners later received weekend visitation after a favorable home study.
- Petitioners moved to disqualify the Braxton County Prosecuting Attorney’s Office after the foster parents’ counsel (McCourt) joined that office; court held hearings, ordered McCourt screened, and denied disqualification despite McCourt’s inadvertent signing of a certificate of service.
- Psychological and parental-fitness evaluations: initial evaluators found serious concerns about petitioners (prognoses for improved parenting “extremely poor” or “nonexistent”) and recommended alternative placement; foster parents’ evaluations found no current concerns. Subsequent evaluations for petitioners were less critical but did not review CPS records.
- Circuit court found strong attachment between children and foster parents and that placement with foster parents was in the children’s best interests; court ordered permanent placement with foster parents. Petitioners appealed the disqualification denial and placement outcome.
Issues
| Issue | Petitioners' Argument | DHHR/Foster Parents' Argument | Held |
|---|---|---|---|
| Whether Braxton County Prosecuting Attorney’s Office must be disqualified due to McCourt’s prior representation of foster parents | McCourt’s prior representation and subsequent employment at prosecutor’s office created an unavoidable conflict requiring recusal of entire office | McCourt was effectively screened from the case; his incidental certificate-signing was inadvertent and did not prejudice petitioners | Denial of disqualification affirmed — screening was adequate and no prejudice shown |
| Whether DHHR was required to place children with grandparents under WV Code § 49-4-114(a)(3) | DHHR must offer permanent placement to qualified grandparents when home study shows suitability; petitioners had suitable home study so they should have been offered placement | Statute creates a grandparent preference but placement remains subject to best-interests analysis and can be overcome by evidence showing placement is not in children’s best interests | Placement with foster parents affirmed — although suitable, placement with grandparents was not in children’s best interests |
| Whether the circuit court erred in weighing psychological/fitness evaluations (credibility of evaluators) | Petitioners argued initial evaluators relied improperly on DHHR information and foster-parent evaluations were biased; later evaluators undermined negative findings | Circuit court had basis to credit initial, objective evaluations finding serious concerns about petitioners’ parenting; foster-parent evaluations supported placement | No error — trial court credited evaluators and credibility determinations will not be second-guessed on appeal |
| Whether permanent placement decision was supported by evidence of children’s attachments and best interests | Petitioners contended evidence favored grandparents’ placement | DHHR and guardian presented testimony and expert opinion that children were strongly attached to foster parents, visits with grandparents were resisted, and removal would harm children | Court’s best-interests finding affirmed; permanent placement with foster parents proper |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for bench-tried abuse and neglect cases)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (standard of review reiterated)
- State ex rel. Tyler v. MacQueen, 191 W.Va. 597, 447 S.E.2d 289 (1994) (addressing screening to avoid disqualification for a prosecutor’s office)
- State v. Anderson, 228 W.Va. 58, 717 S.E.2d 245 (2011) (applying Rule 1.11 screening principles)
- Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005) (grandparent placement preference tempered by best-interests analysis)
- In re Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012) (clarifying grandparent-preference statutory framework)
- Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (1997) (deference to trial court credibility and factfinding)