In re K.E. & K.E.
Submitted: January 23, 2018
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
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
BY THE COURT
"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).
"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).
"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
K.E. and K.E. 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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
circuit court held a review hearing on March 23, 2017 to
address the Twins' permanent placement. 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.
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.
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."
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.
circuit court memorialized its bench ruling by Order entered
on May 1, 2017. ...