In re K.L. and R.L.
In re K.L. and R.L.
Opinion
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 *674 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 *675 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 *676 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 so ruling, the circuit court determined as follows:
Pursuant to the provisions ofW. Va. Code § 49-6-604 , following a termination of parental rights, this Court must determine whether the children should be considered for permanent placement with a fit and willing relative.
Pursuant to the provisions ofW. Va. Code § 49-6-608 , following a termination of parental rights, this Court must identify reasons for appropriate disposition, including whether the children should be placed in a relative's home that is fit and willing to provide appropriate care and supervision.
It is the policy of DHHR to place children with relatives, rather than non-relatives, whenever possible.
....
The provisions ofW. Va. Code § 49-4-302 require DHHR to notify and afford to the nearest blood relative the opportunity to take custody of children removed from their parents.
....
It is both the policy of DHHR and the law of this state that a relative placement is preferred to a non-relative foster placement.
It is the law of this state that the best interests of the children be considered when permanency is determined. In light of the statutory provisions regarding placement of children, and decisions of the West Virginia Supreme Court of Appeals, the best interests of the children include considerations of being united with relatives for permanency to afford them the opportunity to develop those family relationships as they grow and mature.
....
To deny the recognized preference of family placement as a result of policy, statutory provisions, and state inaction is contrary to the best interests of the children. ...
The court further ordered that the children be transitioned to their Uncle and Aunt's custody within ninety days.
Following entry of the circuit court's order, the Guardian moved for a stay thereof pending an appeal to this Court. The circuit court refused to stay transition of the children from the Foster Parents to their Uncle and Aunt. Thereafter, the Petitioners filed the instant appeal from the circuit court's "Order of Permanent Placement" and requested this Court to stay the transfer of custody. By order entered June 18, 2018, we granted the stay.
In the meantime, the parties arranged for the children to meet their Uncle and Aunt for visitations to facilitate the children's transition to their Uncle and Aunt's home. Because the Uncle and Aunt live approximately fifteen hours away, they rented an apartment close to the Foster Parent's home so that they could visit more frequently with the children. After a period of weekly visits between R.L., K.L., and their Uncle and Aunt, however, R.L.'s psychologist recommended the visits occur less often due to R.L.'s reactions thereto, which included wetting herself, acting out, and fear and apprehension when going to locations after she had visited with her Uncle and Aunt in those places but at times when no visit was scheduled to occur there. R.L. also underwent additional psychological and diagnostic testing through which it was determined that she is not autistic but that she does experience intellectual challenges.
Through the parties' Rule 11 updates, 6 it appears that K.L. has continued to thrive in *677 the Foster Parents' care. R.L. has continued to receive therapy services and attend public school, and is also participating in recreation league sports. Visits between the children and their Uncle and Aunt continued through the summer of 2018 and into September 2018. Thereafter, the Uncle and Aunt stated that they were unable to travel to West Virginia to visit with R.L. and K.L. due to their children's school and sports activities and because of the significant expense they already had incurred in obtaining counsel to represent them in these proceedings and renting an apartment to facilitate the summer visitation schedule. Since their last visit with R.L. and K.L. on September 29, 2018, the Uncle and Aunt have not visited with or had any other contact with R.L. and K.L.
It is within this context that we consider the Petitioners' appeal to this Court.
II.
STANDARD OF REVIEW
The instant proceeding is before this Court on appeal from the circuit court's final order in an abuse and neglect proceeding. In this context, we previously have held that,
[a]lthough 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.
Syl. pt. 1,
In re Tiffany Marie S.
,
Additionally, given that the pivotal issue herein is whether there exists a preference for relatives in addition to the grandparent and sibling preferences established by the Legislature, we also must consider the propriety of the meaning ascribed to the pertinent statutes by the circuit court. With respect to such matters, we previously have held that "[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.
,
III.
DISCUSSION
The case sub judice is before the Court because too many families love R.L. and K.L. and want to provide the best possible future for these children who have endured untold abuse and neglect in their young lives. Both the Foster Parents, with whom the children have resided since their removal from their parents' home, and the children's Uncle and Aunt, who are biologically related to the children, have expressed an interest in adopting them. Yet only one placement can prevail due to the preference for placing siblings in the same adoptive home. 7 In selecting the children's Uncle and Aunt to be their permanent custodians, the circuit court determined there exists a "blood relative" preference in addition to the statutory preferences afforded to siblings and grandparents in abuse and *678 neglect proceedings. On appeal to this Court, however, the Petitioners challenge this presumption of an additional preference for relatives, generally, as well as the circuit court's conclusion that awarding custody of the children to their Uncle and Aunt is the permanent placement that most effectively promotes the best interests of R.L. and K.L.
Child abuse and neglect proceedings are governed by statute.
See generally
Although the goal of abuse and neglect proceedings is the reunification of children and their parents,
8
when such an outcome cannot be achieved, as was the case herein, the matter proceeds to disposition under
In this case, the circuit court, in its November 3, 2017 dispositional order, ordered that, "[b]ased upon necessity for the welfare and best interest of the children, and other findings ..., the parental rights of [the Mother] and [the Father] are terminated." As such, there was no "nonabusing parent" to whom the court could award custody of R.L. and K.L. Thus, the only custodial placement available to the court under
Despite this clear statutory language, however, the circuit court nevertheless recognized there to exist a statutory "relative" preference when determining a child's permanent placement in an abuse and neglect proceeding. Although the child abuse and neglect statutory scheme does recognize two familial placement preferences that would apply to the instant proceedings, namely the sibling preference 9 and the grandparent *679 preference, 10 neither of these provisions formed the basis for the circuit court's decision. Rather, in recognizing a relative preference, generally, the circuit court relied upon various statutory provisions that do not apply to the case sub judice .
In deciding to place R.L. and K.L. with their Uncle and Aunt, the circuit court repeatedly reiterated a preference for placing children with their "blood relatives" based both in statutory law and the DHHR's policies. Neither of these sources of authority, though, support the circuit court's decision. First, the circuit court relied upon the dispositional statute,
[u]pon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs, commit[s] the child temporarily to the care, custody, and control of the state department, a licensed private child welfare agency, or a suitable person who may be appointed guardian by the court.
*680
The next statute cited by the circuit court as authority for a relative preference also does not apply to the instant proceeding. In support of its ruling, the circuit court also referenced in its "Order of Permanent Placement"
[i]f the court finds, pursuant to this article, that the department is not required to make reasonable efforts to preserve the family, then, notwithstanding any other provision, a permanency hearing must be held within thirty days following entry of the court order so finding, and a permanent placement review hearing must be conducted at least once every ninety days thereafter until a permanent placement is achieved.
In the underlying abuse and neglect proceedings, the circuit court held a disposition hearing on October 17, 2017, and entered its order memorializing its rulings on November 3, 2017. Thereafter, the circuit court held a hearing on October 30, 2017, to expedite the completion of paperwork required by the ICPC and a permanent placement review hearing on January 10, 2018. The final permanent placement hearing was held on March 22, 2018, and the court entered its "Order of Permanent Placement" on April 30, 2018. As such, the circuit court, having terminated the parents' parental rights upon a finding that the family could not be preserved because the conditions of abuse and neglect could not be substantially corrected, proceeded to a permanent placement decision in accordance with
This "fit and willing relative" language is contained in the following section, however, which governs permanency decisions that have not been completed within twelve months of the DHHR having been awarded custody of the subject children:
[i]f, twelve months after receipt by the department or its authorized agent of physical care, custody, and control of a child either by a court-ordered placement or by a voluntary agreement, the department has not placed a child in an adoptive home; placed the child with a natural parent, placed the child in legal guardianship, or permanently placed the child with a fit and willing relative, the court shall hold a permanency hearing.
The circuit court additionally referenced
Finally, the circuit court intimates that the DHHR's own policy also supports a conclusion that there exists a preference for relatives when deciding a child's permanent placement. This argument already has been considered by this Court and was squarely rejected. In
Kristopher O. v. Mazzone
,
Based upon our review of the law governing abuse and neglect proceedings in this State and the authorities relied upon by the circuit court in rendering its rulings, below, we reach the same conclusion as our brethren in the
Kristopher
case and echo that Court's declaration that no preference is afforded to blood relatives, generally, when placing a child for adoption. Accordingly, we now specifically hold that 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
*682 Thus, based upon the foregoing authorities, it is clear that the circuit court erred by finding there to exist a blood relative preference in this State and to rely thereon as a basis for placing R.L. and K.L. with their Uncle and Aunt.
In addition to their contention that the circuit court erred by finding there to exist a "blood relative" preference, the Petitioners also argue that the circuit court improperly assessed the best interests of R.L. and K.L. when placing them with their Uncle and Aunt because it concluded that "the best interests of the children include considerations of being united with relatives for permanency." To support their argument that the children's best interests would be promoted by placing them with the Foster Parents and not with their Uncle and Aunt, the Petitioners cite record evidence demonstrating R.L.'s severe separation anxiety and intolerance for change, as well as treatment notes regarding her neurological deficits and significant social, educational, and developmental delays.
The preeminent concern in all cases involving children, be it an abuse and neglect proceeding or a matter of child custody, is the best interests of the children. In this regard, we specifically have held that
[o]nce 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.
Syl. pt. 8, in part,
In re Willis
,
It is apparent from a review of the record in this case that the severe anxiety suffered by R.L. coupled with the regression of her behaviors following her visits with the Uncle and Aunt suggest that the more suitable, and least traumatic, placement to satisfy R.L.'s best interests would be with the Foster Parents. Moreover, the Court is deeply troubled by the virtual abandonment of the children by the Uncle and Aunt who *683 previously fought so vigilantly to attain their custody. While financial constraints and other familial obligations are understandable impediments to more frequent visits with R.L. and K.L., which require a fifteen hour journey, the Uncle and Aunt's lack of any contact whatsoever with the children for the past six and one-half months, and counting, causes the Court great concern regarding the Uncle and Aunt's actual commitment to these children, particularly when such lengthy absences and periods of no contact can seem like an eternity to a young child. Furthermore, continued long distance interaction with the children, through cards or letters, phone calls or video chats, or simply email undeniably would be an easy and cost-effective method of maintaining contact and communicating with the children to allay their fears and promote their sense of comfort and security with the Uncle and Aunt. But, alas, the Uncle and Aunt have failed to take even these most basic and simplistic steps to facilitate a relationship with, and demonstrate their commitment to undertaking the custodial responsibility for, R.L. and K.L.-the very same children the Uncle and Aunt claim they want to adopt.
Given R.L.'s fragile emotional state and the tender years of K.L., during which time sudden and abrupt changes in caretakers is discouraged, 12 we simply do not find that removing R.L. and K.L. from the home of the Foster Parents, in which they have flourished, and placing them with relatives, whose present commitment to the children is questionable at best and practically nonexistent at worst, would promote the children's best interests. Rather, we find the best interests of R.L. and K.L. would best be promoted by allowing them to remain in the Foster Parents' home. In the Foster Parents' household, R.L. finds great comfort and security, which has allowed her to overcome many obstacles and to thrive in their care. For K.L., the Foster Parents' home is the only home he has ever known in his short life. Accordingly, we reverse the circuit court's April 30, 2018 "Order of Permanent Placement" placing the children with their Uncle and Aunt and remand this case for entry of an order finding that placement with the Foster Parents promotes the best interests of R.L. and K.L. and permanently placing the children with the Foster Parents.
IV.
CONCLUSION
For the foregoing reasons, the April 30, 2018 "Order of Permanent Placement" of the Circuit Court of Randolph County is hereby reversed, and this case is remanded for further proceedings consistent with this Opinion.
Reversed and Remanded.
In cases involving sensitive facts, we refer to the parties by their initials rather than their full names.
See, e.g.
,
In re I.M.K.
,
Where necessary, the Petitioners also will be referred to collectively as "the Petitioners."
At the time of K.L.'s birth, the Mother tested positive for Buprenorphine, Cannabinoids, and Benzodiazepines. K.L. experienced withdrawal symptoms due to the substances in his system at birth; however, which substances are not apparent in the record.
The Interstate Compact for the Placement of Children ("ICPC") governs the interstate placement of children, including adoptive placements, to ensure that children will be living in safe and suitable homes.
See generally
For example, while R.L. was communicating with a vocabulary of approximately fifty words, that was significantly less than the roughly 2,500 word vocabulary common for other children her age.
Rule 11 of the West Virginia Rules of Appellate Procedure requires the parties in appeals from abuse and neglect proceedings to provide an update regarding the subject child's current status. See W. Va. R. App. P. 11(j) ("The parties shall provide a written statement of any change in the circumstances that were set forth in the briefs within one week of any oral argument scheduled by the Court or within such other time as may be specified by order.").
See note 9, infra .
See
State ex rel. Amy M. v. Kaufman
,
The sibling preference is set forth in
Having found that no blood relative preference exists vis-à-vis adoptive placements, the only other preferences potentially applicable to the case sub judice are the grandparent preference, which the parties have not asserted herein, and the sibling preference, which the parties have conceded has been followed by considering adoptive placements for the children that would place them in the same household.
See
Syl. pt. 3, in part,
James M. v. Maynard
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.