Opinion
No. 22-0365
06-21-2023
IN RE: G.G.
Joseph H. Spano, Jr., Esq., Pritt & Spano, PLLC, Charleston, West Virginia, Attorney for Petitioners, S.M. and A.M. Patrick Morrisey, Esq., Attorney General, Brittany Ryers-Hindbaugh, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for WV DHHR Robert P. Dunlap, II, Esq., Dunlap and Associates, PLLC, Beckley, West Virginia, Attorney for Intervenors, J.M. and A.M. Amber R. Hinkle, Esq., Taylor & Hinkle, Beckley, West Virginia, Guardian ad Litem
Syllabus by the Court
1. " ‘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).
2. "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).
3. "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).
4. "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 to W. 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." Syl. Pt. 2, In re K.L. and R.L., 241 W. Va. 546, 826 S.E.2d 671 (2019).
5. 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. 6. 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.
7. "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).
8. "[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).
9. "[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).
Appeal from the Circuit Court of Raleigh County, Honorable Darl W. Poling, Judge, Civil Action No. 20-JA-73-P
Joseph H. Spano, Jr., Esq., Pritt & Spano, PLLC, Charleston, West Virginia, Attorney for Petitioners, S.M. and A.M.
Patrick Morrisey, Esq., Attorney General, Brittany Ryers-Hindbaugh, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for WV DHHR
Robert P. Dunlap, II, Esq., Dunlap and Associates, PLLC, Beckley, West Virginia, Attorney for Intervenors, J.M. and A.M.
Amber R. Hinkle, Esq., Taylor & Hinkle, Beckley, West Virginia, Guardian ad Litem
HUTCHISON, Justice:
The petitioners, S.M. 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., 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 West Virginia Code § 49-2-126 (2020), provides a preference for G.G. to be placed with her blood relatives and that because they were found to be a fit and suitable placement; they should have been allowed to adopt G.G. Upon consideration of the parties’ briefs and oral arguments, the submitted appendix records, and the pertinent authorities, we find no error and, therefore, affirm the circuit court’s decision.
In cases involving sensitive facts, we use initials to identify the parties, See W. Va. R. App. Proc. 40(e); see also State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
To be clear, while my focus is on the amendments to the code made after this Court’s decision in In re K.L. was rendered, there is no shortage of provisions pre-dating that opinion which also suggest the existence of an adoptive placement preference for a child's relatives. For example, the statutes governing permanency hearings at least twice direct circuit courts to consider "permanent placement with a relative " The first such instance appears in West Virginia Code section 49-4-608(b) (2015), which applies when a child has not achieved permanency within twelve months of the dispositional decision. A similar directive is found in West Virginia Code section 49-4-608(e)(6), which sets out the required findings in circuit court orders following any permanency hearing, including that the circuit court provide "compelling reasons why it continues to not be in the best interest of the child to .. be placed with a fit and willing relative." Id. § 49-4-608(e)(6)(C)(iv). While the full language of that provision runs the gamut of placement options—reunification, adoption, legal guardianships, and placement with a relative— the explicit reference to relative placement in the permanency context undeniably suggests the existence of a preference.
Finally, turning to the dispositional statute, West Virginia Code section 49-4-604 (Supp. 2022), the Legislature has intimated that the circuit court must consider "whether the child should [b]e considered for permanent placement with a fit and willing relative" in the context of a temporary guardianship under section 49-4-604(c)(5)(E)(ii) (emphasis added). That directive is internally contradictory because it applies to a temporary placement, but directs consideration of a permanent placement with a relative. We addressed that statute in K. L. and determined that it only applied to temporary placements. 241 W. Va. at 555, 826 S.E.2d at 680. Nonetheless, this statutory inconsistency adds to confusion as to whether there exists a permanent placement preference for relatives of a child
See, e.g., W. Va. Code § 49-4-111(b) (limiting termination of child’s foster care arrangement "[w]hen a child has been placed in a foster care arrangement for a period in excess of eighteen consecutive months"); W. Va. Code § 49-4-602(a)(1) (restricting period of DHHR’s temporary emergency care of child suspected to be abused or neglected to ten days); W. Va. Code § 49-4-604(e) (permitting court to grant parents "an improvement period not to exceed six months"); W. Va. Code § 49-4-605(a)(1) (requiring DHHR action when "a child has been in foster care for 15 of the most recent 22 months").
Because G.G.’s aunt and her foster mother have the same initials, we refer to the parties as the petitioners and the respondents rather than using their initials.
It is essential to recognize that the judiciary's role is to interpret and apply the law, not to legislate from the bench. See Henry v. Benya, 203 W Va. 172, 181, 506 S.E 2d 615, 624 (1998) ("As a Court charged with reviewing and interpreting the will of the Legislature, we are constrained to abide by its mandates and to refrain from creating ‘judicial legislation.’ ").
See, e.g., W. Va. R. P. Child Abuse & Neglect Proceed. 27 (directing court to enter adjudicatory order "within ten (10) days of the conclusion of the hearing"); id. at R. 32 (establishing time-frames for dispositional hearing); id. at R. 43 (requiring achievement of child's permanent placement "within twelve (12) months of the final disposition order, unless the court specifically finds on the record extraordinary reasons sufficient to justify the delay").
I. Facts and Procedural Background
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 Active kin. In April 2021, G.G.’s mother’s parental rights to her two older children were terminated, 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 removed from her initial placement, it appears to have been due to a housing issue. Thereafter, G.G.’s biological father voluntarily relinquished his parental rights, and G.G.’s mother’s parental rights were involuntarily terminated at a final dispositional hearing in September 2021.
The fictive kin are not clearly identified in the record, but they appear to have been family friends. See W. Va. Code § 49-1-206 (2021) (defining "fictive kin" as "an adult of at least 21 years of age, who is not a relative of the child, as defined herein, but who has an established, substantial relationship with the child").
For example, in this case G.G.’s relatives live in another state, therefore, the DHHR was required to coordinate with the corresponding agency in the relatives’ home state to secure their home study and ensure that they would be a safe and appropriate placement for her. See generally W Va. Code §§ 49-7-101 to -102 (detailing requirements for Interstate Compact on the Placement of Children).
At that juncture, the two older children had been in the legal custody of the DHHR for fifteen of the last twenty-two months, and the circuit court found that it was in their best interests to terminate their mother's parental rights.
The Legislature recently reorganized the DHHR into three new departments: the West Virginia Department of Health, the West Virginia Department of Human Services, and the West Virginia Department of Health Facilities. See generally Acts of the W. Va. Legislature, Reg Sess 2023, H.B. 2006 (eff. May 23, 2023). While I refer to the agency involved in this case as the DHHR to maintain consistency with the underlying abuse and neglect proceeding and the majority’s opinion in this case, I hope that the new department that will replace the existing DHHR takes heed of the concerns detailed herein
G.G.'s mother appealed the termination of her parental rights to this Court, and we upheld the circuit court’s order by memorandum decision entered on April 14, 2022. See In re G.G., No. 21- 0774, 2022 WL 1115826 (W. Va. Apr. 14, 2022) (memorandum decision).
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 W. Va. Code §§ 49-7- 101 & 102 (2015); While that process was ongoing, the DHHR arranged for the petitioners to have video calls with G.G. The petitioners were also afforded three in-person visits with G.G. prior to the hearing on the motions to intervene.
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 granting the motion filed by the respondents. The circuit court found that both the petitioners and the respondents were able to provide a suitable and fit placement for G.G. and noted that both had indicated a willingness to accept placement of her older siblings. The circuit court further found, however, that the determinative factor was G.G.’s best interests and that, given the amount of time she had resided with the respondents and the significant attachments that undoubtedly had been established, she should remain in that placement. Upon entry of the circuit court’s order, this appeal followed.
The record indicates that abuse and neglect proceedings were instituted again regarding G.G.’s siblings. Those proceedings are separate from this case.
II. Standard of Review
[1–5] 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 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). Because "[q]uestions 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). Finally, we apply the de novo standard of review to our examination of West Virginia Code § 49-2-126. As we have held, "[w]here 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). With these standards in mind, we proceed to review the circuit’s court decision.
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 West Virginia Code § 49-2-126(a)(5) which provides that foster children have "[t]he right to be placed in a kinship placement, when such placement meets the objectives set forth in this article." The petitioners contend that because the circuit court found that they were a fit and proper placement for G.G. and were willing to accept placement of her siblings, they, as G.G.’s maternal aunt and uncle, should have been allowed to intervene and ultimately adopt G.G. in accordance with the kinship placement right afforded by the Foster Child Bill of Rights.
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 West Virginia Code § 49-4-111(b)(3) (2015), they assert that it is only when a child has been with a foster family for more than eighteen months that a court must consider the child’s best interests when determining whether to terminate the foster care arrangement. In addition, the petitioners argue that the circuit court court’s conclusion that significant attachments between G.G. and the respondents had been established is simply "not true." In that regard, they contend, without any citing any authority other than what they say is "commonsense," that "[n]o child remembers anything before the age of two and in most cases three or four years of age" and "no child would remember being separated from a foster parent at that age." Finally, the petitioners argue that they should not be penalized because of the delay resulting from the ICPC process and continuances issued by the circuit court that caused G.G. to be in the custody of the respondents for eight months prior to the hearing on the motions to intervene, noting that they attempted to obtain placement of G.G. at the outset of the proceedings below.
West Virginia Code § 49-4-111(b) provides, in pertinent part:
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:
* * * *
(3) The foster care arrangement is terminated due to the child being united or reunited with a sibling or siblings[.]
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, the circuit court’s decision was reversed, and the case was remanded for a new permanency hearing.
[6, 7] 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 to W. 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.
[8] 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 West Virginia Code § 49-2-126 and reenacted it as the Foster Child Bill of Rights. This statute now recognizes that "[f]oster children and children in a kinship placement are active and participating members of the child welfare system" and affords them certain enumerated rights. W. Va. Code § 49-2-126(a). One of those rights is "the right to be placed in a kinship placement." W. Va. Code § 49-2-126(a)(5). This subsection' further states, however, that the right is only provided "when such placement meets the objectives set forth in this article." Id. And, as we determined in In re R.S., 244 W. Va. 564, 572, 855 S.E.2d 355, 363 (2021), this means "the statute requires consideration of the child’s ‘needs’ or best interest" in accordance with pre-existing statutory law and the significant body of case law of this Court concerning abuse and neglect proceedings. Id.
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 West Virginia Code § 49-2-126(a)(6), which provides a child
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 ease 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 advised the circuit court that it had located another foster family that would accept placement of all five siblings. That family’s home study was approved, and R.S.’s siblings were placed with them. Id. R.S. was not immediately placed with this new foster family, however, because his current foster parents asserted that he had developed a secure attachment to them, and they requested that the circuit court order an expert assessment to examine the risks of removing R.S. from their care. The circuit court granted the request, ordered an expert bonding assessment, and scheduled a full evidentiary hearing regarding R.S.’s permanent placement that was to be held after the assessment was completed. Id. However, before the assessment report was submitted, the circuit court issued another order requiring R.S. to be immediately removed from his current foster family and permanently placed with his siblings to comply with the newly enacted Foster Child Bill of Rights. In its order, the circuit court concluded that "under this new legislation it had no authority to consider R.S.’s best interests over the child’s right to be placed with his siblings." Id. R.S.’s foster parents appealed the decision, and we undertook an examination of the effect of the Foster Child Bill of Rights on R.S.’s placement.
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 "W. Va. Code § 49-2-126(a)(6) directs that a child’s ability to remain with siblings is to be included as a factor when making a permanent placement ruling." Id. Continuing to apply the statute as written as we are required to do, we then determined that the language " ‘to be matched as closely as possibly 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." In re R.S., 244 W. Va. at 571, 855 S.E.2d at 362. In other words, the court "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 interests." Id.
See Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) ("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").
[9] 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 pre-existing, 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 West Virginia Code § 49-4-111(e), which does provide a sibling placement preference but also requires a determination that reunification of siblings is in the best interests of all the children. Id. In addition to the statutory requirement to consider the children’s best interests, we found that the circuit court’s decision was "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.’ " 244 W. Va. at 573, 855 S.E.2d at 364, quoting Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989). Accordingly, we held in syllabus point eleven of In re R.S. that
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 with W. Va. Code § 49-4-111(e) (2015).
244 W. Va. at 566, 855 S.E.2d at 357.
[10–12] Our analysis in In re R.S. with respect to subsection (a)(6) of West Virginia Code § 49-2-126 is equally applicable to subsection (a)(5). Like subsection (a)(6), West; Virginia Code § 49-2-126(a)(5) contains qualifying language that directs that a child’s placement in a kinship home should only occur "when such placement meets the objectives set forth in this article." This article, which addresses the State’s responsibilities for children, is part of Chapter 49, which has the stated purpose of providing a system of child welfare services to assure that "appropriate care is given and maintained" for children who become participating members of this system. W. Va. Code § 49-1-105 (2015). To achieve that purpose, the child’s best interests must be considered. Indeed, we have made clear that "regardless of whether there exists a placement' preference that applies to the facts of th[e] case, any preference always is tempered by a consideration of the children’s best interests." In re R.S., 244 W. Va. at 573-74, 855 S.E.2d at 364-65 (citation omitted). Stated another way, "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." Id. (citation omitted); see also In re Elizabeth F., 225 W. Va. 780, 786-87, 696 S.E.2d 296, 302-303 (2010) (explaining that "an integral part of implementation of the grandparent preference, as with all decisions concerning minor children, is the best interest of the child"). Accordingly, we now hold that West Virginia Code § 49-2-126(a)(5) 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. Applying our new holding to this case, we find that the circuit court did not err in considering G.G.’s best interests in ruling upon the parties’ motions to intervene.
The petitioners’ reliance upon West Virginia Code § 49-4-111(b)(3) was misplaced. As we made clear above, any decision concerning a minor child requires a consideration of the child’s best interests. Moreover, this statutory t provision has no application in this instance as it pertains to the reunification of a child with a sibling after the child has resided in a separate foster home for a period in excess of eighteen months. See n. 7, supra. Those are not the circumstances in this case.
[13] We wish to make clear that our holding today should not be construed to mean that we have found that West Virginia Code § 49-2-126(a)(5) provides an adoptive placement preference for a child’s blood relatives generally. This subsection does not contain any language to that effect, and accordingly, we decline to declare that such a preference exists. As we have previously explained, "[c]ourts are not free to read into the language what is not there, but rather should apply the statute as written." State ex rel. Frazier v. Meadows, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994). Notably, when providing adoptive placement preferences, the Legislature has done so through separate statutory enactments with clear language mandating that those placements be considered prior to any other prospective adoptive placement. See § W.Va. Code 49-4-114(a)(3) (2015) (providing grandparent preference) and W.Va. Code § 49-4-111 (2015) (providing sibling preference). As written, West Virginia Code § 49-2-126(a)(5) simply provides a right to a foster child, not an adoptive placement preference for the child’s relatives.
We are mindful that West Virginia Code § 49-4-601a (2020), discussed further herein, does provide a preference for children to be placed with relatives or fictive kin when they are initially removed from the custody of their biological parents. Obviously, when a placement is made with relatives or fictive kin at the removal stage of the proceedings and parental rights are later terminated, that home would be the adoptive placement choice although it would still be subject to a best-interest-of-the-child analysis. However, where a child is not residing in a kinship placement at the permanency stage of the proceedings, West Virginia Code § 49-2-126(a)(5) does not provide an adoptive placement preference for blood relatives.
[14] 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 need's 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).
[15–17] Recognizing that" ‘continuity of relationships, surroundings and environmental influence’ during a child’s first three years of life" is vitally important, 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) ("A 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).
In re K.E. & K.E., 240 W. Va. 220, 227, 809 S.E.2d 531, 538 (2018) (additional citation omitted).
In this case, the circuit court found that G.G. had resided with the respondents for almost half of her life, which was during "one of the most formative points in a young life." The circuit court further found that "G.G. ha[d] become accustomed to the home and family providing for her care during [this] extended period of her life" and that "significant attachments, undoubtedly have been established with the [respondents], their household, routines, and parenting during this time." Although both the petitioners and the respondents were determined to be fit, able, and willing to accept placement of G.G., the circuit court concluded that the bonds and attachments that had been established between G.G. and the respondents were determinative of G.G.’s best interests. Thus, the circuit court decided that G.G. should remain in her current placement with the respondents.
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 coordi- nator, 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 put to the garage to let the dog in, she instantly changes and, in my professional opinion, that is an extreme bond.
In addition, the guardian ad litem submitted a comprehensive report in which she concluded that "moving G.G. at this time would be contrary to her best interests." She recommended a permanency plan for G.G. to be adopted by the respondents. Given this evidence, we are unable to find that the circuit court abused its discretion in its assessment of G.G.’s best interests.
[18] 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 West Virginia Code § 49-4-601a (2020) at the outset of this case, they would have been able to adopt G.G. West Virginia Code § 49-4-601a provides, in pertinent part:
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.
West Virginia Code § 49-4-601a was a newly enacted statute in June 2020, and it is unclear from the record before us as to whether it had become effective at the time G.G. was removed from her biological mother’s custody. Regardless of when the statute became applicable though, the record shows that the DHHR complied with its provisions. As discussed above, G.G. was initially placed with fictive kin, where she resided for several months.
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. 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).
It appears from the record that the relationship between G.G.’s mother and her sister had deteriorated during the time that the abuse and neglect proceedings occurred below.
[19, 20] 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. The decision regarding G.G.’s permanent placement had to be made based upon the circumstances existing at that time, not when the petitioners contend that they first sought custody of G.G. While we understand the petitioners’ desire to obtain custody of their niece and be a part of her life, bureaucratic errors and delays cannot dictate the outcome of a case where a child’s future is at stake. As we have long held, "the 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). Therefore, as discussed above, "in 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." McCoy, 189 W. Va. at 210, 429 S.E.2d at 492, syl. pt. 1, in part. Here, the circuit court determined that it is in G.G.’s best interests to remain in her current placement with the respondents, and we have found no basis to set aside that determination.
IV. Conclusion
Accordingly, for the foregoing reasons, the circuit court’s April 11, 2022, order is affirmed.
Affirmed.
JUSTICES WOOTON and BUNN concur and reserve the right to file concurring opinions.
WOOTON, J., concurring:
This Court is confronted with a case involving a child’s placement "only because too many people love this [child]." In re Clifford K., 217 W. Va. 625, 646, 619 S.E.2d 138, 159 (2005); see also In re J.P., 243 W. Va. 394, 400, 844 S.E.2d 165, 171 (2020) (same). Sadly, this is a rare occurrence in abuse and neglect cases. Here, the circuit court was tasked with deciding which of two equally suitable and loving homes should prevail in the contest to serve as G.G.’s permanent, adoptive placement. On one side are the foster parents — the family with whom G.G. has been placed for so much of her young life; on the other are G.G.’s maternal aunt and uncle, whom she only met late in these proceedings, but who clearly want only the best for her. In resolving that contest the circuit court ultimately determined that G.G.’s best interests were served by remaining with the foster parents, basing that decision largely on the amount of time G.G. had been in the foster parents’ home, and on the lack of a statutory preference for permanent placement with blood relatives of the child.
I concur with the majority’s conclusion that under the current legal framework there is no statutory preference for permanent placement with blood relatives, generally, See Syl. Pt. 2, in part, In re K.L., 241 W. Va. 546, 826 S.E.2d 671 (2019) ("Apart from the grandparent and the sibling preferences, there does not exist an adoptive placement preference for a child’s blood relatives, generally."). While I agree with the majority’s analysis of the law as it stands today, I believe recent amendments to the code suggest that the legislature may be moving towards legislation establishing a placement preference for a child’s blood relatives, Accordingly, I write separately for two reasons: (1) to highlight that there is no statutory preference for permanent placement with a child’s relatives; and (2) to stress that if there is to be such a permanent placement preference it will (and should) be accomplished through legislation.
Petitioners argued before this Court that in enacting the Foster Child Bill of Rights, West Virginia Code section 49-2-126 (Supp, 2022), the Legislature created a statutory placement preference for blood relatives, Specifically, Petitioners point to section 49-2- 126(a)(5), which provides that children in the child welfare system have "[t]he right to be placed in a kinship placement, when such placement meets the objectives set forth in this article[.]" The majority correctly concludes that this language requires the circuit to analyze whether a child’s placement in a kinship placement would serve his or her best interests. While I agree with the majority that this language does not in itself create a statutory adoptive placement preference for the child’s relatives, a review of Chapter 49 suggests that such a preference may have been contemplated—not just by the language in section 49-2-126(a)(5), but by other provisions referencing placement with relatives of the child.
The Foster Child Bill of Rights clearly establishes that a child has "[t]he right to live in a safe and healthy environment, and the least restrictive environment possible[.]" Id. § 49-2-126(a)(1) (emphasis added). In this regard, the legislation leaves little question as to what constitutes the "least restrictive environment possible"; to wit: West Virginia Code section 49-4-601a (Supp. 2022) provides that "placement of a child with a relative is the least restrictive alternative living arrangement." There is no reason to believe the Legislature would ascribe the phrase "least restrictive environment possible" a different meaning in the Foster Child Bill of Rights (West Virginia Code § 49-2-126(a)(1)) than in West Virginia Code § 49-4-601a.
I agree with the majority that the plain language of section 49-4-601a limits its application to initial placements after the child is removed from the home, and acknowledge that there is no similarly limiting language found in the Foster Child Bill of Rights. At a minimum, this suggests that in affording a child the general right to live in "the least restrictive environment possible" and the separate right to "be placed in a kinship placement," the Legislature may be suggesting that a child’s relatives are to be entitled to some type of preference.1a The question is whether the Legislature intends that to be an adoptive placement preference.
I believe this Court is constrained from answering that question in the affirmative; the various statutory references to placement with relatives do not rise to a level sufficient for this Court to determine that there exists in the law an adoptive placement preference for the child’s relatives, generally. Simply stated, other than grandparents and siblings, there is no clear statutory directive to deviate from this Court’s holdings that there is no permanent placement preference for a child’s relatives, generally.
The grandparent preference and the sibling preference both are set forth in distinct statutory provisions or subsections addressing only the preference and any attendant considerations in effectuating that preference. For example, the grandparent preference embodied at West Virginia Code section 49-4-114(a)(3) (2015) provides: "[f]or purposes of my placement of a child for adoption by the department, the department shall first consider the suitability and willingness of any known grandparent or grandparents to adopt the child…. [the department] shall assure that the grandparents are offered the placement of the child prior to the consideration of any other prospective adoptive parents." Id. (emphasis added). The language could not be plainer: grandparents are entitled to the first chance at adoptive placement of the child. The subsection then sets out plainly what is required to effectuate that preference (e.g., a successful home study). See id. Likewise, the statute establishing the sibling preference (West Virginia Code section 49-4-111 (2015)), delineates a preference for keeping siblings together, when possible, and if in the best interests of the children. There is no comparable statutory permanent placement preference for blood relatives.
Abuse and neglect proceedings involve the protection of the most vulnerable persons in this State’s court system: our children. The development of rules concerning the protec- tion of those children is a complex task, necessitating the careful balancing of many factors, not the least of which is the best interests of those children. While we may appreciate the potential benefits of a permanent placement preference for a child’s relatives, the fact remains that under our system of government the Legislature has the responsibility to examine the legal framework, assess any available evidence, consider expert opinions, and engage in a comprehensive evaluation of what would aid in serving the best interests of the children of this state. See Syl. Pt. 2, in part, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009) ("It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions.") (emphasis in original). While a child’s relatives may offer potential advantages as placement options—as the Legislature has recognized in providing that relatives receive preference for initial placement, see West Virginia Code section 49-4-601a—it is not within the purview of this Court to create a permanent placement preference in the absence of clear legislative guidance. "The principles of judicial conservatism require us … not to bestow upon ourselves the role of superlegislature simply because we do not believe [the Legislature] went far enough." Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cnty., 235 W. Va. 283, 298, 773 S.E.2d 627, 642 (2015) (Benjamin, J., concurring) (emphasis in original).2a For that reason, if the Legislature desires that such a preference exist, it must revise the Code to make that clear; and if the public wishes that such a preference exist, its remedy lies not with us, but with the elected members of the Legislature.
In sum, I agree with the majority that currently there is no statutory preference for permanent placement of a child with blood relatives of that child. While there are hints or suggestions, there is no clear statutory expression sufficient to justify this Court concluding that such a preference is the express public policy of the State. Accordingly, for the foregoing reasons I respectfully concur.
BUNN, Justice, concurring:
(Filed June 21, 2023)
I agree with the majority’s determination that G.G.’s best interests require her continued placement with her foster parents. After having been placed with her foster family when she was just over one year old and having now resided in their care for approximately two years, disruption of this placement would likely wreak havoc on the young child’s life given the significant attachments she has formed with her foster family. See Syl. pt. 2, State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993) ("The best interests of a child are served by preserving important relationships in that child’s life."). Therefore, I concur with the majority’s opinion in this case.
I write separately to express my frustration with the protracted delays that have led to G.G.’s long-term placement with her foster family and contributed to the formation of the bond she now has with them to the exclusion of her right to form a relationship with her biological relatives. See W. Va. Code § 49-2-126(a)(5) (recognizing that "[f]oster children and children in a kinship placement are active and participating members of the child welfare system and have the following rights: … The right, to be placed in a kinship placement, when such placement meets the objectives set forth in this article[.]"). All too often in abuse and neglect cases, bureaucratic delays in the identification of a child’s relatives and consideration of the appropriateness of placing a child in their care result in real life consequences for the children subject to such proceedings. This case is no exception.
The Legislature has established definite and fairly rigid time limits to govern the Conduct of abuse and neglect cases,1b and this Court also recognizes stringent timelines to guide the resolution of these proceedings.2b These time limits help ensure that abuse and neglect cases are given priority and are solved as expeditiously as possible for the young lives at stake in such proceedings. Our constant refrain for over three decades is 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 Int. of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Unfortunately, the continued search for a child’s relatives, and the exhaustive investigative process3b employed to ensure the relatives are an appropriate placement for the child, very often causes the child to form deep and immutable attachments to the foster parents with whom she has been temporarily placed—so much so that once a relative is finally approved as a suitable caregiver, such relative placement would no longer serve the child’s best interests. This case is an example of that very scenario.
Despite the efforts of G.G.’s relatives to serve as her caregivers during the underlying abuse and neglect proceeding, it appears that the DHHR4b first told them that they had come forward too soon. Later, when the fictive kin placement failed and the DHHR sought a new placement for G.G., the relatives were not considered—until nearly three months later when they again initiated contact with the DHHR to seek her custody. While the relatives timely completed the appropriate paperwork to be considered as an out-of-state placement for G.G., unexplained delays and breakdowns in communication resulted in an additional five-month period before the relatives’ home was finally approved, as an appropriate placement. After these delays, the circuit court determined that young G.G. had formed such a deep bond with her foster family that moving her to another placement, albeit with her relatives, would be more detrimental to her well-being than beneficial.
I understand and appreciate the issues regarding staff retention, inadequate resources, and other institutional difficulties that may hamper the DHHR’s ability to devote its full attention to any particular child entrusted to its care during the course of an abuse and neglect case. See generally State ex rel. W. Va. Dep’t of Health & Hum. Res. v. Bloom, 247 W. Va. 433, 880 S.E.2d 899 (2022). However, where, as here, a child’s biological relatives initiate contact with the DHHR during a previous abuse and neglect proceeding concerning the child’s siblings and are effectively rebuffed because they have expressed interest in receiving placement of the children too early, it does not seem prohibitively difficult to retain the relatives’ information so that they may be contacted should they be needed as caregivers in the future—particularly when the Legislature has enacted a series of statutes specifically addressing the DHHR’s record keeping responsibilities concerning children who have been entrusted to its care or to whom it has provided services, See W. Va. Code §§ 49-5- 101 to 106. In other words, insofar as the DHHR apparently keeps records of a child’s siblings, even when the child and her siblings are born across different years, it certainly seems possible to also include the child’s known relatives in those records for ease of reference in any future abuse and neglect proceeding.
The extensive efforts of the DHHR in striving to protect the children of this State through the abuse and neglect process do not go unnoticed. See W. Va. Code §§ 49-2- 802(a)-(b) (requiring DHHR to "establish or designate in every county a local child protective services office" and further directing "[t]he local child protective services office shall investigate all reports of child abuse or neglect" and "provide protective services to prevent further abuse or neglect of children and provide for or arrange for and coordinate and monitor the provision of those services necessary to ensure the safety of children," among other enumerated duties (emphasis added)). See also W. Va. Code § 49-1-105 (recognizing purposes of child welfare system generally and corresponding duties of state agencies to achieve those goals). However, the DHHR should also remain mindful of the need for timely and prompt action in such proceedings to ensure that children’s rights are not inadvertently trammeled. As the majority astutely noted, "[r]egardless of who is responsible for the delay in this case, the child is the unfortunate victim." W. Va. Dep’t of Hum. Serv. v. La Red Ann C.L., 175 W. Va. 330, 337 n.8, 332 S.E.2d 632, 638 n.8 (1985). This quote aptly describes the various quagmires in the DHHR’s process that shaped the contours of G.G.’s abuse and neglect proceeding and contributed to her long-term placement with foster parents instead of enabling her to form a bond with, and be placed with, her biological relatives who desperately sought her care. I only hope that, in future abuse and neglect cases, the DHHR will remain vigilant in its continuing efforts to safeguard the rights of the children it seeks to protect and that the courts presiding over those proceedings will remain steadfast ta their efforts to ensure that such cases are resolved as expeditiously as possible. For these reasons, I respectfully concur with the majority’s opinion in this case.