In Re L.M. and L.S.
235 W. Va. 436
| W. Va. | 2015Background
- Two siblings, L.M. (3) and L.S. (2), were removed from their parents after methamphetamine-related contamination and prenatal substance exposure; parental rights were later terminated.
- Maternal grandparents (B.S. and D.S.) initially received physical custody pending a DHHR home study; DHHR later filed an emergency motion to remove the children from the grandparents’ home after CPS photos suggested baby items in the grandparents’ home matched items from the meth-contaminated trailer.
- The circuit court found, based on photographic comparisons and testimony, that a bassinet and swing in the grandparents’ home came from the contaminated trailer and presented an imminent risk to the children; children were removed and placed with foster parents seeking adoption.
- Grandparents moved to intervene and for placement; the circuit court denied both, finding grandparents exposed the children to imminent harm, lacked judgment to ensure safety, and that the presumption favoring grandparent placement had been rebutted.
- Grandparents appealed, arguing (1) insufficient evidence/denyance of evidentiary opportunities regarding the baby items and (2) that the mandatory grandparent-preference statute required a completed home study before placement decisions.
Issues
| Issue | Plaintiff's Argument (Grandparents) | Defendant's Argument (DHHR) | Held |
|---|---|---|---|
| Sufficiency of evidence that grandparents used meth‑contaminated baby items | Circuit court erred; photographic comparison and credibility findings insufficient and grandparents were prevented from introducing evidence | DHHR: photographic evidence and testimony plausibly tied items to contaminated trailer; grandparents had opportunity to present contrary evidence | Court: factual findings not clearly erroneous; trial court credited DHHR evidence and grandparents’ proffer was inadequate to rebut prior findings |
| Whether W. Va. Code § 49‑3‑1(a)(3) makes home studies mandatory before placing a child with an interested grandparent | Home study is mandatory and court should have waited for completed study before denying placement | DHHR: home study was incomplete and removal was justified because of imminent danger; mandatory study does not require pursuing a futile process when grandparent is unsuitable | Court: statute’s “shall” makes home study mandatory generally, but no statutory requirement to complete a home study when grandparent is found unsuitable or placement is not in child’s best interests |
| Whether a home study is required when there is evidence of imminent danger or clear unsuitability | Grandparents: must have home study to receive presumption in their favor | DHHR: imminent danger and clear concerns about grandparents’ judgment and family history excuse completion of home study | Court: where evidence shows an interested grandparent is unsuitable or would not be in child’s best interests (or child faces imminent danger), completing a home study is unnecessary and may be futile or harmful |
| Best interests/placement outcome | Grandparents: placement with them serves familial preference | DHHR & Guardian: best interests favor foster family that has cared for children >20 months and seeks adoption; grandparents’ household history raises safety concerns | Court: best interests and continuity/likelihood of adoption support denying grandparent placement; presumption rebutted by clear and convincing evidence |
Key Cases Cited
- Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996) (standards for appellate review of circuit court custody dispositions)
- Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005) (grandparent preference incorporates best‑interests analysis and home‑study requirement)
- In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (clearly erroneous standard for factual findings in abuse/neglect cases)
- Nelson v. West Virginia Public Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (mandatory connotation of the word “shall” in statutes)
- E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997) (statutory interpretation re: mandatory language)
- In re Aaron H., 229 W. Va. 677, 735 S.E.2d 274 (2012) (affirming denial of grandparent placement where lack of home study was not sole basis and best interests favored foster parents)
- In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 (2010) (grandparent preference contingent on best interests of the child)
- In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (courts need not wait for speculative parental improvement when child’s welfare is threatened)