896 S.E.2d 662
W. Va.2023Background:
- G.G. was born to a mother with a history of substance abuse and prior abuse/neglect proceedings; DHHR removed G.G. and initially placed her with fictive kin, then with foster parents (respondents) on July 1, 2021.
- G.G.’s biological parents’ rights were later terminated; the respondents sought to intervene and adopt G.G.; petitioners (maternal aunt and uncle, who live in Georgia) moved to intervene and seek permanent placement/adoption as well.
- DHHR conducted ICPC steps for the out-of-state petitioners; petitioners had limited video contact and three in-person visits before the permanency hearing.
- At a full evidentiary hearing, the circuit court found both parties were fit placements but concluded G.G.’s significant attachments to the respondents (after ~9 months) made it in her best interests to remain with them and denied the petitioners’ motion to intervene as to permanency.
- Petitioners appealed, arguing the Foster Child Bill of Rights (W. Va. Code § 49-2-126(a)(5)) creates a kinship/adoptive preference for blood relatives and that delay from ICPC prejudiced them.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does W. Va. Code § 49-2-126(a)(5) create an adoptive placement preference for blood relatives? | Petitioners: statute gives a placement preference to relatives that requires awarding kin adoptive placement when relatives are fit. | Respondents/DHHR: statute gives foster children a right to be considered for kinship placement but does not create a blanket adoptive preference; best-interest analysis controls. | Court: § 49-2-126(a)(5) requires a best-interest analysis before moving a child from foster to kinship placement but does not create a general adoptive preference for blood relatives. |
| Did the circuit court abuse its discretion in finding G.G.’s best interests favored remaining with respondents despite ~9 months in placement? | Petitioners: attachments not significant for a very young child; delay (ICPC/continuances) prevented timely placement with relatives. | Respondents/DHHR: evidence showed strong bond (child called them Mommy/Daddy), GAL and treatment coordinator recommended keeping placement; best-interest factors favor continuity. | Court: No abuse of discretion; factual findings supported that significant attachments and continuity favored respondents. |
| Was denial of the petitioners’ motion to intervene (and resulting permanency ruling) procedurally improper? | Petitioners: they should have been permitted to intervene to adopt under kinship preference. | Respondents/DHHR: petitioners were allowed to fully participate at the hearing; court resolved permanency on the merits guided by best-interest standard. | Court: No procedural error; petitioners participated, and the final order is reviewed for abuse of discretion and was affirmed. |
Key Cases Cited
- Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (W. Va. 1996) (standards of appellate review for circuit court orders)
- Kristopher O. v. Mazzone, 227 W. Va. 184, 706 S.E.2d 381 (W. Va. 2011) (no general adoptive preference for blood relatives)
- In re K.L. and R.L., 241 W. Va. 546, 826 S.E.2d 671 (W. Va. 2019) (reaffirming absence of broad blood-relative adoptive preference)
- In re R.S., 244 W. Va. 564, 855 S.E.2d 355 (W. Va. 2021) (Foster Child Bill of Rights requires best-interest analysis; statutory kin/sibling language is a factor, not mandatory placement)
- State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (W. Va. 1993) (best interests and preservation of important relationships guide child custody decisions)