855 S.E.2d 355
W. Va.2021Background
- R.S., born 2018, was removed from his parents at 3 months for abuse/neglect; after several placements he lived with foster parents H.G. and B.G. (Petitioners) from July 2019 until late 2020.
- Biological parents’ rights were terminated December 2019; Petitioners moved to intervene and sought to adopt R.S.; Petitioners argued R.S. had a strong bond with them.
- DHHR located a foster family (the K family) able to take all five siblings; four older siblings were placed with the K family in March 2020; DHHR approved the K family home study March 23, 2020.
- Petitioners requested an expert bonding assessment and an evidentiary permanency hearing; circuit court ordered the bonding assessment and scheduled a July 30, 2020 hearing.
- After the Foster Child Bill of Rights (including W. Va. Code § 49-2-126) took effect June 5, 2020, the circuit court (June 11, 2020) ordered R.S. placed with his siblings without holding the evidentiary hearing, concluding the statute mandated sibling placement; the Supreme Court of Appeals stayed the order pending appeal.
- The GAL obtained an emergency order December 7, 2020 removing R.S. from Petitioners without affording Petitioners a chance to respond; the Supreme Court reversed the circuit court’s June 11 order and remanded for an evidentiary hearing and other directions.
Issues
| Issue | Petitioners / DHHR Argument | GAL Argument | Held |
|---|---|---|---|
| Whether W. Va. Code § 49-2-126(a)(6) mandates sibling placement, eliminating best-interest review | §49-2-126 does not nullify best-interest analysis; sibling placement is one factor | The statute requires placement with siblings when possible | The statute is not mandatory; courts must perform best-interest analysis and may consider sibling placement consistent with §49-4-111(e) |
| Whether the circuit court could order permanent placement without the ordered bonding assessment or evidentiary hearing | Court should hold evidentiary hearing and consider bonding report before permanency decision | Immediate placement with siblings was proper | Circuit court erred by issuing placement order without evidence/hearing; remand for evidentiary hearing |
| Whether removal of R.S. on Dec. 7, 2020 (on GAL emergency motion) without giving Petitioners an opportunity to respond was proper | Emergency removal was improper without opportunity to respond; procedural unfairness | GAL asserted emergency basis (alleged unfounded abuse allegations against K family) | Removal without affording Petitioners an opportunity to respond was improper; circuit court erred in effectuating that removal |
| Whether a new guardian ad litem should be appointed to represent R.S. individually | Petitioners contend GAL focused on siblings, possibly sidelining R.S.’s individual best interests | GAL prioritized uniting all siblings in one home | Court recommended considering appointment of a new GAL to advocate solely for R.S.’s individual best interests on remand |
Key Cases Cited
- Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (W. Va. 2005) (standard of review for circuit court orders)
- Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 543 S.E.2d 364 (W. Va. 2001) (de novo review for statutory interpretation)
- Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (W. Va. 1970) (plain-meaning statutory construction)
- Michael K.T. v. Tina L.T., 182 W. Va. 399, 387 S.E.2d 866 (W. Va. 1989) (best interests of the child as guiding principle)
- In re K.L., 241 W. Va. 546, 826 S.E.2d 671 (W. Va. 2019) (placement preferences tempered by best interests)
- In re Carol B., 209 W. Va. 658, 550 S.E.2d 636 (W. Va. 2001) (statutory sibling preference under §49-4-111(e))
- In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (W. Va. 1991) (priority and prompt resolution in abuse/neglect cases)
- Kristopher O. v. Mazzone, 227 W. Va. 184, 706 S.E.2d 381 (W. Va. 2011) (children’s best interests favor gradual transitions)