In the Interest of Jessica G. ( 2010 )

WORKMAN, Justice,

concurring:

(Filed June 24, 2010)

I write separately to emphasize that nothing in the majority opinion, nor in West Virginia Code § 49-6-5(a)(6) (2009), should be misconstrued to imply that the wishes of a child who is fourteen years or older, or who is of an age of discretion as determined by the court, must control a court’s decision on whether to terminate parental rights. West Virginia Code § 49-6-5(a)(6) provides that “[njotwithstanding any other provision of this article, the court shall give consideration to the wishes of a child fourteen years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights.” Id. (Emphasis added).

While the statute clearly requires a court to consider such a child’s wishes, it is not dispositive. This Court has continuously held that a major factor in eases involving children is the children’s best interest. See Syl. Pt. 7, in part, In Re Charity H., 215 W.Va. 208, 599 S.E.2d 631 (2004). (“ ‘[T]he primary goal in eases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).”). It should also be noted that “the Court is authorized to exercise a discretion conducive to the best interest of the child.” Hammond v. Dep’t of Pub. Assistance of Doddridge County, 142 W.Va. 208, 216, 95 S.E.2d 345, 349 (1956).

While a consideration for the child’s wishes is a factor to consider, also permanency and stability are other factors to consider. In In Re Katie S., the respondent mother argued “that long term foster care ... [was] the best option for ... [her] young ehildren[.]” 198 W.Va. at 89, 479 S.E.2d at 599. However, this Court found that argument to be without merit “because the respondent failed to show that she would in the future be able to care for her children.” Id. This Court found that it was in the best interest of the child to terminate the parental rights, rather than to order long-term foster care. Id. Further, according to the provisions of West Virginia Code § 49-6-5(a), courts are required to have a written permanency plan in place for each child found to be abused or neglected. Id. A permanency plan provides for the child to be returned to a parent or both parents or for adoption. If none of these options are available then the child is to enter long-term foster care; however, “[u]nder the Adoption and Safe Families Act, long-term foster care is the choice of last resort.” Black’s Law Dictionary 1254 (9th ed.2009). The ultimate decision remains squarely within the circuit court’s discretion; however, the best interests of the child remains the paramount consideration.