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In re K.C.

Supreme Court of West Virginia

February 7, 2019

In re K.C.

          Raleigh County 16-JA-117

          MEMORANDUM DECISION

         The petitioners, SC and E.C. (hereinafter "grandparents"), by counsel Daniel J. Burns, appeal the February 5, 2018, order of the Circuit Court of Raleigh County placing their grandchild, K.C., with the respondents, K.G. and J.G. (hereinafter "foster parents"), for adoption in this abuse and neglect case.[1] The foster parents, by counsel Jennifer Dempsey Meeteer, filed a response asking this Court to affirm the circuit court's decision. The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, and the guardian ad litem, Stanley I. Selden, also filed responses in support of the circuit court's order. In this appeal, the grandparents argue that the circuit court erred by failing to apply the statutory preferences for grandparent adoption and keeping siblings together. They also contend that the circuit court erred by relying upon the opinion of the guardian ad litem with regard to K.C.'s permanent placement.

         Upon consideration of the parties' briefs, oral arguments, the record on appeal, and the pertinent authorities, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         I. Facts and Procedural History

         K.C. is the third child of S.C., his mother, and M.W., his father. When he was born in August 2016, K.C. tested positive for drugs.[2] At that time, K.C.'s parents were already subject to an abuse and neglect proceeding, which had begun soon after the birth of their first child, B.W. in 2012.[3] The initial abuse and neglect petition, which was filed on October 12, 2012, alleged that the mother was abusing drugs intravenously and her drug use prevented her from being able to care for her child. The petition further alleged that the father was also abusing drugs and his parental rights to another child from a previous relationship had been terminated because of severe domestic violence. Upon the filing of the petition, B.W. was removed from the parental home and placed with his maternal grandparents, the petitioners herein. Thereafter, the parents stipulated to the allegations in the petition and were granted post-adjudicatory improvement periods. In January 2014, the father's parental rights to B.W. were involuntarily terminated because he failed to comply with the terms of his improvement period. The mother was afforded an additional improvement period which continued through the birth of her second child, the older K.C., [4]in June 2014. Upon the birth of the second child, the abuse and neglect petition was amended to include him; the father was also made a party to the proceeding again.

         In August 2014, the circuit court was informed that the grandparents, who then had physical custody of both children, were allowing the father to visit B.W. even though his parental rights had been terminated. The circuit court also learned that the grandparents had allowed the mother to reside in their home throughout the entire case, even when she was abusing drugs. Consequently, the children were removed from the home of the grandparents but were soon returned after a multi-disciplinary team meeting, during which the grandparents agreed to a "safety plan" whereby they would contact Child Protective Services ("CPS") and have the mother leave the home if she appeared to be under the influence of drugs or was allowing the children to have contact with their father. The case continued with both mother and father agreeing to seek substance abuse treatment.

         In August 2015, the mother was arrested for trespassing, shoplifting, and possession of a controlled substance. A couple of months later, she attempted to falsify a drug screen. Subsequently, the mother entered substance abuse treatment again. The mother's improvement period continued, as did the improvement period of the father, who had also entered another drug addiction treatment program.

         At the time of K.C.'s birth in August 2016, the home study of the grandparents had not yet been completed. According to the DHHR, K.C. was placed with the respondent foster parents because the grandmother told a CPS worker that she could not care for all three children without their mother's help and that she did not believe her daughter would change her behavior if she took custody of the baby. There was also concern on the part of DHHR that the maternal grandmother's disabled brother, who also lived in her home, was a convicted felon.[5] A third amended abuse and neglect petition was filed by the DHHR to include K.C. in the proceeding. K.C. remained in the hospital for three weeks after his birth to wean him from the drugs in his system. Upon being designated as his foster parents, K.G. and J.G. immediately began to visit K.C. in the hospital and help feed him.

         On March 24, 2017, a disposition hearing was held with respect to both parents. At that time, both parents voluntarily relinquished their parental rights to the children. The court ruled that the mother could have post-termination visitation with the children at the discretion of the adoptive parents. The court was informed that the grandparents were now seeking custody of K.C. in addition to the other two older children. At the same time, the foster parents were also seeking to adopt K.C. Consequently, the grandparents and foster parents were granted intervenor status. On October 23, 2017, the court held the first evidentiary hearing concerning K.C.'s permanent placement and heard testimony from several caseworkers who had been involved in the proceeding.[6]

         At the first permanency hearing, Traci Hairston, the original CPS worker assigned to the case, testified that she was involved with the parties through May 2017, when she left her employment. She stated that shortly after K.C. was born, the grandmother told her that she was unable to take custody of him because it would be too difficult for her to care for another child. According to Ms. Hairston, the grandmother further stated that she thought her daughter, the children's mother, "might improve" if K.C. was separated from the family and placed in foster care. Ms. Hairston also testified that the grandparents had yet to pass a home study when K.C. was born, and DHHR was, therefore, uncomfortable with placing a third child in their care. Ms. Hairston further stated that it was only when it became apparent that the mother was not going to succeed in regaining custody of her children, that the grandmother began sending her text messages to let her know that she and her husband were also seeking to adopt K.C. Ms. Hairston opined that while there was a bond between all three children, K.C.'s bond with his foster parents was stronger. Ms. Hairston stated that the DHHR's plan was to allow the grandparents to adopt the two older children, which they had essentially raised from birth, and to allow the foster parents to adopt K.C.

         Kelly Cook Stevens, who provided contract services for DHHR, testified that she was involved with the mother's parenting and visitation. She stated that the grandmother told her before K.C was born that she did not want custody of him and desired to have him placed in a foster home, explaining that she was tired from taking care of the other two children and her disabled brother. According to Ms. Stevens, the grandmother also said that she did not believe the children's mother would ever change if she took custody of the baby. However, Ms. Stevens later received text messages from the grandmother indicating that she desired custody of K.C. Another CPS worker provided similar testimony.

         During the permanency hearings, the circuit court also heard considerable evidence regarding the home studies of the grandparents. Debbie Totten, a home finding service supervisor, explained the reasons for the failed home studies, which included the grandparents' failure to provide character references; failure to undergo physical examinations to show that they were in good health and able to care for the children; failure to undergo the required training for foster and adoptive parents; failure to provide proof of pet vaccinations; failure to remove clutter from the home; failure to purchase an additional toddler bed or crib; failure to provide vehicle registrations; and failure to provide sufficient fingerprints for background checks on other adults living in the home. There was also concern about whether there were enough bedrooms in the home should K.C. be placed with his grandparents. However, another home finding specialist, Garrett Lester, testified at a subsequent hearing that there was room in the grandparents' bedroom for K.C. to sleep. He explained that DHHR policy permits a child to sleep in a room with adults until the child is two and a half years old.

         The court also heard testimony from Leah Williams, the adoption worker for the foster parents. She testified that the foster parents' home study was completed in October 2014, at which time they were approved as a certified foster home. She described the foster parents as "proactive parents" going beyond what is asked of them. She noted that their house is always clean, and there have never been any concerns about their foster placements. She further testified that the foster parents have two older boys they previously adopted, and they consider K.C. to be their brother. Ms. Williams stated that there is a strong bond between K.C. and his foster family.

         During the placement hearing held in December 2017, the maternal grandmother testified. She admitted that she purposely did not pass the home study by withholding information and not completing the requirements. She did this to delay the process in an effort to allow her daughter, the children's mother, to have more time to complete drug rehabilitation and be in a position to have the children returned to her. Both foster parents testified at the subsequent hearing. They explained that K.C. required a lot of care initially because he was born addicted to drugs and was not eating or gaining weight. The foster father testified that he is a home health nurse and that his experience helped him in taking care of K.C. He further testified that K.C. suffers from emotional anxiety and is very attached to his wife, who is a stay at home mom. The foster parents stated that K.C. calls them "mom" and "dad," and they believe it would be difficult for him to leave their care because he has separation anxiety. The foster parents indicated they had no difficulty in allowing K.C. to visit his maternal grandparents' home to spend time with his brothers.

         At the final permanency hearing on January 8, 2018, the guardian ad litem gave an oral report to the court regarding his visits to both prospective placement homes. With respect to K.C., the guardian ad litem stated that he believed it would be detrimental to K.C.'s emotional and mental health to be removed from the foster parents' custody because he has lived with them his entire life and has strongly bonded with them. Accordingly, the guardian ad litem ...


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