IN RE: R.S.
No. 20-0565
Supreme Court of Appeals of West Virginia
March 16, 2021
JUSTICE ARMSTEAD
Jаnuary 2021 Term. Appeal from the Circuit Court of Ohio County. The Honorable David J. Sims, Judge. Civil Action No. 18-CJA-69.
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: February 10, 2021
Filed: March 16, 2021
Carlie M. Fisher, Esq.
Schrader, Companion, Duff & Law, PLLC
Wheeling, West Virginia
Counsel for Petitioners, H.G. and B.G.
Mark D. Panepinto, Esq.
Panepinto Law Offices
Wheeling, West Virginia
Guardian ad Litem for the child, R.S.
Patrick Morrisey, Esq.
Attorney General
Charleston, West Virginia
Lee Niezgoda, Esq.
Assistant Attorney General
Fairmont, West Virginia
Counsel for Respondent, Department of Health and Human Resources
JUSTICE ARMSTEAD delivered the Opinion of the Court.
- “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. 1, in part, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
- “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. 3, in part, Alden v. Harpers Ferry Police Civil Serv. Comm‘n, 209 W. Va. 83, 543 S.E.2d 364 (2001).
- “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).
- “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
- “Statutes which relate to the same subject matter should be read and applied together so that the Legislature‘s intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State Workmen‘s Comp. Comm‘r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
- “The Legislature, when it enacts legislation, is presumed to know its prior enactments.” Syl. Pt. 5, in part, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986).
- “Where two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each.” Syl. Pt. 4, in part, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958).
- “It is always presumed that the legislature will not enact a meaningless or useless statute.” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma, 147 W. Va. 645, 129 S.E.2d 921 (1963).
- “In a contest over the custody of an infant, the welfare of the сhild is the polar star by which the discretion of the court is to be guided.” Syl., State ex rel. Palmer v. Postlethwaite, 106 W. Va. 383, 145 S.E. 738 (1928).
- “Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.” Syl.
Pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938). 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) .- “Child abuse and neglect cases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child‘s development, stability and security.” Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
- “Mаtters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.” Syl. Pt. 5, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
ARMSTEAD, Justice:
This appeal concerns two foster families seeking permanent placement of the child, R.S.1 The circuit court ruled that new legislation, including
After review, we find that the circuit court‘s ruling is not supportеd by 1) the plain language of
I. FACTUAL AND PROCEDURAL BACKGROUND
R.S. was born in 2018. He is the youngest of five children born to C.S. and J.S. (“biological parents“). R.S. was removed from his biological parents’ custody when
he was three months old due to allegations of abuse and neglect, and placed in the custody of the West Virginia Department of Health and Human Resourсes (“DHHR“). During the next year, R.S. spent time in two foster homes. Approximately one year after being removed from his biological parents’ custody, R.S. and his four siblings were placed back with their biological parents. However, all five children were removed from the biological parents’ home shortly thereafter. After this removal, R.S. was placed with another foster family—Petitioners, H.G. and B.G. (“Petitioners“).2 This placement was made in July of 2019.
At a review hearing in March of 2020, the DHHR informed the circuit court that it had located another foster family (“the K family“) that would accept placement of all five siblings, including R.S. Counsel for Petitioners reiterated their desire to adopt R.S. at this hearing. The circuit court ordered the DHHR to complete a home study of the K
family‘s residence. On March 23, 2020, the K family‘s home study was approved, and the four oldest siblings were placed with them.
Petitioners filed a motion with the circuit court raising concerns about removing R.S. from their care, and asserting that R.S. had developed a secure attachment and stability in their home. Petitioners also alleged that the K family did not have a relationship with R.S., and that R.S. did not have a significant relationship with his siblings. Based on these concerns, Petitioners requested that the circuit court order an expert assessment to examine the risks in moving R.S. to the K family‘s home.
The DHHR filed a response to this motion. It agreed that an expert bonding assessment should be conducted, and stated that a full evidentiary hearing was required to determine which placement would be in R.S.‘s best interest. The Guardian ad Litem (“GAL“), who represented R.S. and his four siblings, objected to the request to conduct an expert bonding assessment. The GAL did not file a motion explaining his objection. Instead, the GAL orally told the circuit court that he believed R.S. should be placed with his other siblings in the K family home immediately.3
The circuit court entered an order on June 3, 2020, granting the motion for an expert bonding assessment, and ordered that it be filed with the court prior to June 30,
2020. Further, the circuit court ordered that a full evidentiary hearing on R.S.‘s permanent placement would occur on July 30, 2020.
This evidentiary hearing did not occur. Instead, the circuit court issued an order on June 11, 2020, without conducting an evidentiary hearing and without having received the expert bonding assessment. The circuit court ordered that R.S. be permanently placed with his siblings in the K family‘s home based upon newly enacted legislation,
[t]hе Court must balance the rights of [Petitioners] to be “considered” as permanent placement for [R.S.] against [R.S.‘s] statutory right under
W. Va. Code § 49-2-126(a)(6) to be placed with a foster family, when possible, with his siblings. [R.S.] has clearly and definitively exercised this right, by and through his GAL, who is acting in [R.S.‘s] best interests. Obviously, it is possible to place [R.S.] with his siblings given that the siblings are currently placed with a DHHR approved foster family that desires to have [R.S.] permanently placed with them. Further, [R.S.‘s] siblings want him placed there.There is nothing in this statute that directs that the Court do a balancing test or a best interests analysis when [R.S.] has definitively exercised his statutory rights.
The circuit court stayed the order for thirty days to permit Petitioners to appeal, and ruled that R.S. would not be removed from
During oral argument in this matter, counsel for Petitioners strongly contested the assertion that Petitioners encouraged R.S. to make unfounded allegations of physical abuse against the K family. Petitioners’ counsel argued that the GAL‘s emergency motion had no basis in fact, and that the GAL offered no evidence to support this allegation.
The GAL‘s Rule 11(j)6 update to this Court included a general statement on the emergency motion:
The emergency motion was filed in light of what was perceived to be unfounded allegations of abuse and neglect alleged by the Appellants [Petitioners] and directed against the current foster to adopt family [the K family] alleging maltrеatment of [the] minor child, R.S., during R.S.‘s visits with his older sisters which occurred at the foster to adopt family‘s [the K family‘s] home. The allegations have been investigated and found to be without merit.
R.S. has resided with the K family since the circuit court granted the GAL‘s emergency motion in December of 2020.
II. STANDARD OF REVIEW
Generally, “[t]his 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. 1, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005) (internal citation omitted). This case requires us to examine
Harpers Ferry Police Civil Serv. Comm‘n, 209 W. Va. 83, 543 S.E.2d 364 (2001) (internal citation omitted). With these standards in mind, we consider the parties’ arguments.
III. ANALYSIS
This appeal mainly concerns whether the circuit court erred in its interpretation of
We begin by examining whether the circuit court‘s interpretation of new legislation regarding foster children and foster parents, including
Petitioners and the DHHR arguе that the circuit court‘s interpretation of
of
Our review of the circuit court‘s order requires us to examine
“[w]e look first to the statute‘s language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep‘t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995); see also Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.“);
unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.“).
Additionally, this Court has held that “[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted).
Our specific focus is on
(a) Foster children and children in a kinship placement are active and participating members of the child welfare system and have the following rights: . . . (6) 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 рossible, the ability to remain with siblings[.]8
(Footnote added).
We find that
placed in the same home as his siblings, and removed the need for it to conduct a best interest of the child analysis.
First,
Instead of using mandatory terms like “shall” or “must,”
possible with a family meeting the child‘s needs, including, when possible, the ability to remain with siblings[.]” Id. (Emphasis added).
The language “to be matched as closely as possible with a family meeting the child‘s needs,” requires a circuit court to conduct an analysis of 1) the child‘s needs, and 2) the family‘s ability to meet those needs. This language is direct, plain, and should be applied as written. By matching a child as сlosely as possible with a family that can meet the child‘s needs, the circuit court‘s task is clear—it must consider whether placement with a particular family meets the child‘s needs, an analysis that is generally synonymous with consideration of what is in the child‘s best interest.
Next, we find that the meaning of the phrase “including, when possible,” preceding “the ability to remain with siblings,” is also clear. The word “including” is a transitive verb meaning “to take in or
possible” is plain, as one factor, and clear—if placement with siblings is possible, it should be included in the court‘s analysis.
Finally, we focus on the word “remain” in the last portion of
In sum, we conclude that
can be placed with his оr her siblings. Our conclusion is consistent with pre-existing statutory law addressing the sibling preference, and a significant body of caselaw from this Court.
The newly enacted legislation, including
The Legislature has previously enacted a statute addressing the sibling preference. This statute,
(1) When a child is in a foster care arrangement and is residing separately from a sibling оr siblings who are in another foster home or who have been adopted by another family and the parents with whom the placed or adopted sibling or siblings reside have made application to the department to establish an intent to adopt or to enter into a foster care arrangement regarding a child so that the child may be united or reunited with a sibling or siblings, the department shall, upon a determination of the fitness of the persons and household seeking to enter into a foster care arrangement or seek an adoption which would unite or reunite siblings, and if termination and new placement are in the best interests of the children, terminate the foster care arrangement and place the child in the household with the sibling or siblings.
(2) If the department is of the opinion based upon available evidence that residing in the same home would have a harmful physical, mental or psychological effect on one or more of the sibling children or if the
child has a physical or mental disability which the existing foster home can better accommodate, or if the department can document that the reunification of the siblings would not be in the best interest of one or all of the children, the department may petition the circuit court for an order allowing the separation of the siblings to continue. (3) If the child is twelve years of age or older, the department shall provide the child the option of rеmaining in the existing foster care arrangement if remaining is in the best interests of the child. In any proceeding brought by the department to maintain separation of siblings, the separation may be ordered only if the court determines that clear and convincing evidence supports the department‘s determination.
Id. (Emphasis added).12
The foregoing statute was neither modified nor repealed by the Legislature when it enacted
Our conclusion that
Next, we find that the circuit court‘s ruling is in direct opposition to well-established caselaw from this Court in which we have held that “the best interests of the child is the polar star by which decisions must be made which affect children.” Michael K.T., 182 W. Va. at 405, 387 S.E.2d at 872 (citation omitted). For almost one hundred years, this Court has held that “[i]n a contest over the custody of an infant, the welfare of the child is the polar star by which the discretion of the court is to be guided.” Syl., State ex rel. Palmer v. Postlethwaite, 106 W. Va. 383, 145 S.E. 738 (1928).
As the Court made clear in a recent case,
regardless of whether there exists a placement preference that applies to the facts of this case, any preference always is tempered by a consideration of the children‘s
best interests. See Syl. pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.“). See also Syl. pt. 5, in part, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996) (“In . . . custody matters, we have traditionally held paramount the best interests of the child.“). In other words, if allegiance to a preferential placement does not promote the children‘s best interests, such preference must yield to the placement that is most beneficial to the children. See In re Elizabeth F., 225 W. Va. 780, 787, 696 S.E.2d 296, 303 (2010) (per curiam) (“[A]doption by a child‘s grandparents is permitted only if such adoptive placement serves the child‘s best interests. If, upon a thorough review of the entire record, the circuit court believes that a grandparental adoption is not in the subject child‘s best interests, it is not obligated to prefer the grandparents over another, alternative placement that does . . . serve the child‘s best interests.” (citations omitted)).
In re K.L., 241 W. Va. 546, 557, 826 S.E.2d 671, 682 (2019) (Emphasis added).
The circuit court‘s ruling in the instant matter is in direct opposition to this long-standing jurisprudence and would obliterate our settled law that the child‘s best interest is the main conсern in cases involving custody decisions. Such a ruling would arguably lead to an absurd result ignoring the best interests of a particular child and elevating the sibling preference above all else in a permanency hearing. We have held that “[w]here a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).
Based on all of the foregoing, we hold that
Applying this holding to the instant matter, we find that the circuit court erred by failing to conduct a best interest of the child analysis, and ordering that R.S. be placed with the K family based solely on its conclusion that this placement was mandatory under
holding a hearing and giving Petitioners the opportunity to respond to the GAL‘s motion.13 On remand, the circuit court must hold an evidentiary hearing, and consider the statutory requirements including which placement is in R.S.‘s best interest.
Additionally, on remand, we find that the circuit court should consider appointing a new GAL to represent R.S. Petitioners assert, and we agree, that R.S.‘s best interests may be different than the best interests of his four siblings. R.S. was placed with Pеtitioners after being removed from his biological parents’ custody in July of 2019. At the time R.S. was removed from Petitioners’ custody,
During oral argument in this matter, the GAL stated that he has had one goal throughout these proceedings—reuniting all five siblings in one home. The circuit court‘s June 3, 2020, order provides that the GAL objected to the expert bonding evaluation
requested by Petitioners and the DHHR: “[t]he GAL‘s position is that all of the [siblings] should be placed together immediately.” Because the GAL is tasked with protecting the best interests of R.S., we cannot discern why he objected to an expert bonding evaluation that would have included important, relevant information conсerning R.S.‘s relationship with Petitioners. Similarly, we do not understand why the GAL wanted R.S. to be removed from Petitioners’ custody “immediately” in June of 2020 before the bonding evaluation and the evidentiary hearing that would have adduced evidence from Petitioners, the DHHR, and the K family concerning R.S.‘s best interests had occurred. Further, we question whether “immediate” removal from the home where R.S. had seemingly found stability would have been in his best interest in June of 2020. Even if placement of R.S. with the K family would have been supported by the evidence, in Kristopher O. v. Mazzone, 227 W. Va. 184, 194, 706 S.E.2d 381, 391 (2011), this Court stated that “it has been long understood that the law governing child custody directs that a child‘s best interests are best served by a gradual transition to a new home.”
During oral argument, the GAL described the bond that R.S. has formed with the K family and with his four biological siblings. We have no reason to doubt that such bonds have formed. However, the GAL has not described the bond R.S. has formed with Petitioners or with their two children. We again note that Petitioners had custody of R.S. for approximately half of the child‘s life.
It appears that because the GAL has only focused on keeping the five biological siblings together, he has not adequately considered whether R.S.‘s best interests
may not align with that of his four siblings. Therefore, we find that on remand, the circuit court should consider appointing a new GAL to solely represent R.S., and consider his best interests including but not limited to the bond R.S. has formed with the K family and his biological siblings, as well as the bond R.S. has formed with Petitioners and their two children. This cоnsideration should also include an assessment of R.S.‘s individual needs, the K family‘s ability to meet those needs, and Petitioners’ ability to meet those needs.
Finally, counsel for Petitioners has stated that Petitioners have sought visitation with R.S. On remand, the circuit court should address this request. We note that
Foster children and children in a kinship placement are active and participating members of the child welfare system and have the following rights: . . . (11) The right to maintain contact with all previous caregivers and other important adults in his or her life, if desired, unless prohibited by court order or determined by the parent, according to the reasonable and prudent parent standard, not to be in the best interests of the child[.]
We urge the circuit сourt, and all of the parties herein, to hold the evidentiary hearing, and determine R.S.‘s ultimate placement as quickly as possible. We have held that “[c]hild abuse and neglect cases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child‘s development, stability and security.” Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). We have also recognized “matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a
court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.” Syl. Pt. 5, in part, Carlita B.
To facilitate the commencement and conсlusion of the remand proceedings, we issue the mandate of the Court contemporaneously with the issuance of this opinion.
We reverse the circuit court‘s June 11, 2020, order. This case is remanded for further proceedings on an expedited basis consistent with this opinion. The mandate of the Court shall issue forthwith.
Reversed and Remanded With Directions.