IN RE: G.G.
No. 22-0365
Supreme Court of Appeals of West Virginia
June 8, 2023
January 2023 Term
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.
Pritt & Spano, PLLC
Charleston, West Virginia
Attorney for Petitioners, S.M. and A.M.
Robert P. Dunlap, II, Esq.
Dunlap and Associates, PLLC
Beckley, West Virginia
Attorney for Intervenors, J.M. and A.M.
Patrick Morrisey, Esq.
Attorney General
Brittany Ryers-Hindbaugh, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for WV DHHR
Amber R. Hinkle, Esq.
Taylor & Hinkle
Beckley, West Virginia
Guardian ad Litem
JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICES WOOTON and BUNN concur and reserve the right to file concurring opinions.
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““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).
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“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).
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“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).
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“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 toW. Va. Code § 49-4-111 (2015). Apart from the grandparent and the sibling preferences, there does not exist an adoptiveplacement 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). -
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. -
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. -
“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).
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“[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).
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“[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
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).
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
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
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
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
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
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
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
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,
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 toW. 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
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
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
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, 855 S.E.2d at 362. With no evidence of legislative intent to give mandatory direction, we found that “
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 preexisting 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
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 withW. 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
We wish to make clear that our holding today should not be construed to mean that we have found that
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),
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
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) (“А 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)).
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.
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
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.
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.
IV. Conclusion
Accordingly, for the foregoing reasons, the circuit court‘s April 11, 2022, order is affirmed.
Affirmed.
JUSTICE HUTCHISON
Supreme Court of Appeals of West Virginia
Notes
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:
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(3) The foster care arrangement is terminated due to the child being united or reunited with a sibling or siblings[.]