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In re K.E.

Supreme Court of West Virginia

February 20, 2018

In re K.E. & K.E.

          Submitted: January 23, 2018

         Appeal from the Circuit Court of McDowell County The Honorable Booker T. Stephens, Judge Civil Action Nos. 16-JA-035, 036

          William O. Huffman, Esq. Law Office of William O. Huffman Princeton, West Virginia Counsel for the Petitioners C.G. and K.G.

          Philip A. LaCaria, Esq. Law Office of Philip A. LaCaria Welch, West Virginia Guardian ad Litem to K.E. and K.E.

          Patrick Morrisey, Esq. Attorney General S. L. Evans, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent Department of Health and Human Resources


         1. "Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syllabus Point 1, In Interest of Tiffany Marie S., 196 W.Va. 223');">196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "West Virginia Code § 49-3-1(a) provides for grandparent preference in determining adoptive placement for a child where parental rights have been terminated and also incorporates a best interests analysis within that determination by including the requirement that the DHHR find that the grandparents would be suitable adoptive parents prior to granting custody to the grandparents. The statute contemplates that placement with grandparents is presumptively in the best interests of the child, and the preference for grandparent placement may be overcome only where the record reviewed in its entirety establishes that such placement is not in the best interests of the child." Syllabus Point 4, Napoleon S. v. Walker, 217 W.Va. 254');">217 W.Va. 254, 617 S.E.2d 801 (2005).

         3. "By specifying in West Virginia Code § 49-3-1(a)(3) that the home study must show that the grandparents 'would be suitable adoptive parents, ' the Legislature has implicitly included the requirement for an analysis by the Department of Health and Human Resources and circuit courts of the best interests of the child, given all circumstances of the case." Syllabus Point 5, Napoleon S. v. Walker, 217 W.Va. 254');">217 W.Va. 254, 617 S.E.2d 801 (2005).


          WALKER, Justice

         Twins K.E. and K.E.[1] were born dependent on drugs in April 2016. The West Virginia Department of Health and Human Resources (DHHR) immediately placed the Twins in foster care. Later, the Circuit Court of McDowell County terminated the parental rights of their biological parents, and both their foster parents and their paternal grandparents sought to provide the Twins with a permanent home. Relying on the "grandparent preference" contained in West Virginia Code § 49-4-114(a)(3) (2015), the circuit court selected the grandparents for permanent placement.

         At issue here is whether the circuit court correctly applied the grandparent preference in permanently placing the Twins. On the particular circumstances of the Twins' case, and in light of our prior guidance regarding the application of that preference, we conclude that it did not. Accordingly, we reverse the circuit court's order awarding permanent placement of the Twins to their paternal grandparents and remand this matter to the circuit court for entry of an order requiring DHHR to gradually transition K.E. and K.E. to the custody of C.G. and K.G., their foster parents.


         The Twins were born in April 2016 at Welch Community Hospital in McDowell County. Their mother, R.E., tested positive for cocaine, benzodiazepines, and Suboxone at their birth. Following delivery, the Twins tested positive for cocaine and showed signs of withdrawal. They were immediately transferred from Welch Community Hospital to Carilion Roanoke Memorial Hospital in Roanoke, Virginia (Roanoke Memorial), for treatment of their withdrawal symptoms. They remained at Roanoke Memorial for the first few weeks of their lives. R.E. did not accompany them from Welch, West Virginia, to Roanoke, Virginia, approximately 140 miles away.

         DHHR immediately took protective custody of the Twins. DHHR did not consider granting protective custody of the Twins to a member of R.E.'s family because she had previously told DHHR that they were not "appropriate." Instead, DHHR placed the Twins with foster parents C.G. and K.G., who also cared for the Twins' older, half-brother T.N.[2] C.G. and K.G. reside in Mercer County, West Virginia, where they work and care for seven (7) other children. Yet, either C.G. or K.G. remained with the Twins at Roanoke Memorial through the Twins' hospitalization. No member of the Twins' biological family visited them at Roanoke Memorial or asked DHHR to do so.

         DHHR did not know the identity of the Twins' biological father when they were born in April 2016. In May 2016, however, R.E.'s long-time boyfriend, E.N., told DHHR that he was "most likely" the Twins' father. This could not be confirmed by DNA testing, though, until September 2016 due to E.N.'s lack of cooperation. According to DHHR reports, no biological relatives of the Twins-including E.N.'s parents-had expressed interest in giving the Twins a home as of November 2016. The Twins' biological parents, E.N. and R.E., stopped attending proceedings in the Twins' abuse and neglect case after May 2016, and they made no efforts to enter drug rehabilitation as directed by DHHR. Concluding that the biological parents' actions "borderline[d] on abandonment, " the circuit court terminated their parental rights in December 2016. Meanwhile, the Twins remained in C.G. and K.G's care. As of November 2016, C.G. and K.G had retained counsel and gained intervenor status in the Twins' abuse and neglect case.

         In late December 2016 or early January 2017, E.N.'s mother, M.D. (the Twins' paternal grandmother), contacted Child Protective Services Worker Amanda Starling (Starling) seeking permanent custody of the Twins. M.D. and Starling were already acquainted. They had met because M.D. and her husband, D.D. (the Grandparents), served as guardians to another daughter of E.N.-the Twins' half-sister. Starling followed up on M.D.'s call with a home visit. She then referred the case to DHHR's adoption unit, where it was assigned to Lydia Lambert (Lambert), Region IV Adoption Specialist, in approximately January 2017.

         The circuit court held a review hearing on March 23, 2017 to address the Twins' permanent placement.[3] During the hearing, the Twins' guardian ad litem recommended that the Twins remain with the foster parents, C.G. and K.G. Lambert, speaking on behalf of DHHR, recommended that the Twins be permanently placed with the Grandparents because they were an approved foster home and they were guardians to the Twins' half-sister. Lambert also stated that M.D. had told DHHR employee Marsha Phillips (Phillips) that she was interested in caring for the Twins if they were, in fact, her son's children, as early as August 2016.

         The circuit court then questioned M.D., who confirmed that she had expressed interest in the Twins to Phillips in August 2016. She further represented that she had told the Twins' foster mother that she wanted to care for the Twins if they proved to be her biological grandchildren. M.D. also stated that she called Starling "500 times" about the matter before late December 2016 or early January 2017. In response to questioning by the court, Starling flatly denied that M.D. contacted her before late December 2016 or early January 2017.

          During the March 2017 hearing, it became apparent that the Twins' biological parents, R.E. and E.N., remained a part of the Grandparents' lives. Starling testified that, in September 2016, she notified R.E. and E.N. of the Twins' paternity by calling the only contact telephone number they had given her-the Grandparents' home. Upon calling that telephone number, Starling spoke directly to R.E., who then shared the test results with E.N., who was also present in the home at the time. Starling also testified that E.N. entered the Grandparents' home while she conducted the home visit in late 2016 or early 2017. Finally, Starling testified that R.E. and E.N. live a few doors down from the Grandparents, in a house owned by the Grandparents. According to Starling, when parental rights are terminated due to drug use and the biological parent has not attempted rehabilitation, "there is no contact to be made between the terminated parents and the children."

         Approximately one month later, on April 26, 2017, the circuit court ruled that the Twins should be permanently placed with their Grandparents. The circuit court explained,

This goes against the recommendation of the guardian ad litem, but I feel that since these children are so young that-that they will not be affected. If they were much older, I think we-we would have a-would have a different outlook and a different result, but they're one-year-old children or no more than two. They're still babies. Also, I defer to blood relatives, I'll just tell you, whenever that's possible. Plus, the grandparents have a-is it a [sic.] half-sister? . . . That you already have of [the Twins]. So that will be the Court's ruling. . . . -in the best interest of these children that they be returned to the grandparents.

         The circuit court memorialized its bench ruling by Order entered on May 1, 2017. ...

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