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In re K.L.

Supreme Court of West Virginia

April 4, 2019

IN RE K.L. AND R.L.

          Submitted: January 16, 2019

          Appeal from the Circuit Court of Randolph County The Honorable David H. Wilmoth, Judge Civil Action Nos. 17-JA-26 and 17-JA-27

          Heather M. Weese Law Office of Heather M. Weese, PLLC Elkins, West Virginia Guardian ad Litem for the Petitioners, Minor Children, K.L. and R.L.

          J. Brent Easton Brent Easton Attorney at Law PLLC Davis, West Virginia Attorney for the Petitioners, Foster Parents, R.C. and B.C.

          Debra V. Chafin Larry W. Chafin Law Office of Debra V. Chafin, PLLC Clarksburg, West Virginia Attorneys for the Respondents, Paternal Uncle and Aunt, B.L. and J.L.

          Patrick Morrisey Attorney General Charleston, West Virginia Melinda C. Dugas Assistant Attorney General Martinsburg, West Virginia Attorneys for the Petitioner, West Virginia Department of Health and Human Resources

         SYLLABUS BY THE COURT

         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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. 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.

         i

          3. "Once a court exercising proper jurisdiction has made a determination upon sufficient proof that a child has been neglected and his natural parents were so derelict in their duties as to be unfit, the welfare of the infant is the polar star by which the discretion of the court is to be guided in making its award of legal custody." Syllabus point 8, in part, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

         ii

          OPINION

          JENKINS, JUSTICE

         The Petitioners herein, the Guardian ad Litem ("Guardian") for the minor children, K.L.[1] and R.L.; the Department of Health and Human Resources ("DHHR"); and the children's foster parents, R.C. and B.C. ("Foster Parents"), [2] appeal from an "Order of Permanent Placement" entered April 30, 2018, by the Circuit Court of Randolph County. By that order, the circuit court awarded custody of the children to their paternal uncle and aunt, B.L. and J.L. ("Uncle and Aunt"). On appeal to this Court, the Petitioners assign error to the circuit court's decision. The Petitioners claim that the circuit court erroneously concluded, as a matter of law, that there exists, in the abuse and neglect context, a relative preference other than the preference afforded to grandparents and siblings and failed to consider the best interests of the children. Upon a review of the parties' arguments, the appendix record, and the pertinent authorities, we reverse the April 30, 2018 "Order of Permanent Placement" of the Randolph County Circuit Court and remand this case for further proceedings consistent with this Opinion. In summary, the only recognized familial preferences in abuse and neglect proceedings are those afforded to the subject child's grandparents and siblings; there is no preference afforded to blood relatives, generally, of a child subject to abuse and neglect proceedings.

         I.

         FACTS AND PROCEDURAL HISTORY

         The case sub judice began when the DHHR filed an abuse and neglect petition in May 2017 after the youngest child herein, K.L., was alleged to have been abused and/or neglected when he was born drug-exposed.[3] The DHHR filed an emergency petition charging both the children's Mother and the children's Father with abuse and neglect based upon allegations of domestic violence and illegal drug use by both parents. Specifically, the petition alleged that the parents "are unable to care for their children due to substance abuse, domestic violence, lack of appropriate supervision, and unsafe living conditions." The DHHR also sought ratification of the DHHR's assumption of emergency custody of both K.L., who remained in the hospital following his birth as a result of his drug exposure, and R.L., K.L.'s older sister who was approximately five years old, as well as its removal of R.L. from the home. The circuit court authorized the DHHR's assumption of emergency custody by order entered May 4, 2017, and approved the DHHR's actions by order entered May 9, 2017.

         Upon her removal from her parents' home, R.L. was placed with the Foster Parents. Following his release from the hospital, K.L. also was placed with the Foster Parents. The Foster Parents previously have cared for numerous foster children, many of whom have had special needs, and have adopted five children, two of whom still live in the home.

         It appears that the DHHR identified the Uncle and Aunt as a possible relative placement for the children when the DHHR assumed their custody, but, because they live in Michigan, nearly fifteen hours away, the DHHR did not consider the Uncle and Aunt as a temporary placement for the children during the pendency of the abuse and neglect proceedings. Rather, because the goal of the abuse and neglect case was the reunification of the children with their parents, the DHHR determined that the Uncle and Aunt lived too far away to be able to facilitate visits between the children and their parents should the parents be granted visitation during the proceedings. The Uncle and the children's Father are brothers and have a strained relationship such that the Uncle and Aunt had never met the children until after the circuit court's permanent placement hearing when the DHHR arranged visits with the Uncle and Aunt. The Uncle and Aunt have several children, three of whom continue to reside in their home, and the Uncle has significant experience caring for his autistic sibling. They expressed interest in caring for R.L. and K.L., either as a temporary or a permanent placement, and traveled to West Virginia to attend the parents' adjudicatory hearing in the summer of 2017; however, the Uncle and Aunt were not permitted to participate in the hearing because it was closed. There is also some indication that the Father objected to their presence at the hearing.

         When she arrived at the Foster Parents' home, R.L. exhibited significant developmental, social, emotional, and educational delays, although she was almost five years old. As recounted by the children's foster care providers, DHHR case worker, and Foster Parents, R.L. could not communicate verbally; could not feed, clothe, or bathe herself; shied away from human contact; and spent most of her time rolled into a ball in the corner of a room moaning, whining, and squealing. Alternate diagnostic theories for R.L.'s conduct ranged from extreme neglect to autism or some other unspecified neurological disorder.

         K.L. remained in the hospital for approximately one month after his birth as a result of his withdrawal from the substances to which he was exposed in utero. When K.L. arrived at the Foster Parents' home, he was underweight and continued to receive therapeutic services to overcome the effects of his prenatal drug exposure.

         At the conclusion of the adjudicatory hearing, the circuit court granted both parents visitation with the children pending clean drug screens. However, neither parent participated in services, submitted to drug screens, or exercised visitation with their children. Moreover, both parents' attendance at the underlying abuse and neglect hearings was sporadic. Consequently, the circuit court held their dispositional hearing in October 2017, and, by order entered November 3, 2017, terminated both parents' parental rights to R.L. and K.L.

         During this time, the DHHR caseworker assigned to this matter began completing the paperwork required by the Interstate Compact for the Placement of Children ("ICPC")[4] that was necessary for the Uncle and Aunt to be considered as an adoptive placement for R.L. and K.L. The DHHR submitted the home study request to the State of Michigan shortly after the circuit court entered its dispositional order terminating the parents' parental rights. In January 2018, the DHHR received the Michigan home study report approving the Uncle and Aunt as an adoptive placement for the children.

         While the abuse and neglect case was proceeding, R.L. received numerous therapeutic services-private speech therapy paid for by the Foster Parents; in-home services provided by the Foster Parents; and speech, occupational, and developmental therapy provided through the Preston County, West Virginia, public school system. By the time of the circuit court's permanent placement hearing in March 2018, R.L. was attending public school kindergarten; feeding, dressing, and bathing herself with assistance; interacting with people and showing affection; and speaking with a vocabulary of approximately fifty words. Although she continued to have significant delays as compared to her peers, [5] R.L. made great strides while living with the Foster Parents. Nevertheless, R.L. continued to exhibit severe separation anxiety and an intolerance for change. For instance, when R.L.'s teacher's aide had an extended medical leave of absence, R.L. began acting out in school, having tantrums, and refusing to do classwork. R.L. also experienced, and continues to have, severe separation anxiety when her Foster Mother is not present to pick her up from the school bus when she returns home from school; on these occasions, R.L. cries and screams until she makes herself sick. The Foster Mother testified that she has to leave a video for R.L. every time she is not home when R.L. returns from school or the child is inconsolable and that she had to leave such a video to attend the permanency hearing.

         K.L. continued to thrive while living with the Foster Parents such that he was dismissed from West Virginia Birth to Three services at the age of six months because he no longer experienced any developmental delays. The only lingering issue that K.L. continues to face is low weight.

         At the permanent placement hearing in the underlying abuse and neglect case, held on March 22, 2018, both the Foster Parents and the Uncle and Aunt appeared to assert their interest in serving as a permanent placement for R.L. and K.L. and ultimately adopting the children. The DHHR and the Guardian also participated in the hearing and recommended that the children's best interests would be served by continuing their placement with the Foster Parents. R.L.'s separation anxiety and inability to tolerate change was so severe that the DHHR and the Guardian felt that placement with the Uncle and Aunt, with whom the children had no relationship and who they had never met, would cause R.L. to regress to the point she may not be able to regain the developmental progress she had made while in the Foster Parents' care.

         By "Order of Permanent Placement" entered April 30, 2018, the circuit court awarded the Uncle and Aunt custody of R.L. and K.L. finding them to be the preferred placement because they are the children's "blood relatives." In ...


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