State of West Virginia ex rel. L.D. v. The Honorable Judge Bridget Cohee, Circuit Court Judge of Berkeley County ( 2022 )

FILED
December 2, 2022
EDYTHE NASH GAISER, CLERK
No. 22-559 – State ex rel. L.D. v. Cohee SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Chief Justice Hutchison, concurring:
“For a century-and-a-half, the courts of this State have been guided by the
fundamental rule that, when addressing custody issues involving children, the best interests
of the child trump all other considerations. It is the polar star that steers all discretion.”
Brooke B. v. Ray, 230 W. Va. 355, 361-62, 738 S.E.2d 21, 27-28 (2013) (footnote citing
“polar star” cases omitted). As this Court said in 1925, “we must not lose sight of the rule
that obtains in most jurisdictions at the present day, that the welfare of the child is to be
regarded more than the technical legal rights of the parent.” Connor v. Harris, 100 W.Va.
313, 317, 130 S.E. 281, 283 (1925).
I concur with the majority’s decision: the evidence establishes that the circuit
court was bound under the law to return the child, L.D., to the custody of her parents. The
child had been in DHHR’s custody for fourteen months, the parents had successfully
completed their improvement period, and all of the parties agreed the child should be
returned. On this record, the circuit court should have been guided by the interests of the
child and promptly given her stability and continuity by returning her to her parents. 1
The same guiding principle applies to the lawyers in this case: they had a
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duty to expeditiously seek what was best for the child. By pursuing extraordinary relief
from this Court, rather than seeking a prompt ruling from the circuit court, I perceive that
they delayed rather than expedited her best interests.
1
I write separately to bring the Legislature’s attention to a legal conundrum
that was raised by the parties in their briefs. The parties discussed the ambiguous meaning
of “foster care” in West Virginia Code § 49-4-605(a)(1) (2018). That provision contains a
fifteen-month guideline that requires DHHR to take action, and thereby prompt some
resolution to an abuse and neglect action, if a child has been placed in “foster care” for at
least fifteen months. The statute says that DHHR
shall file or join in a petition or otherwise seek a ruling in any
pending proceeding to terminate parental rights:
(1) If a child has been in foster care for 15 of the most recent
22 months as determined by the earlier of the date of the first
judicial finding that the child is subjected to abuse or neglect
or the date which is 60 days after the child is removed from the
home[.]
(emphasis added.) See Syl. pts. 4 and 5, In re C.S., ___ W. Va. ___, 875 S.E.2d 350 (2022)
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(finding that while W. Va. Code § 49-4-605(a)(1) requires DHHR action, DHHR must still
prove, and the circuit court must still find, evidence of abuse or neglect). The majority
correctly found the statute does not apply to this case because the action had only been
pending for fourteen months when DHHR sought to return the child to the parents’ custody.
This statute works in conjunction with West Virginia Code § 49-4-610(9)
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(2015), which provides (with emphasis added) that
no combination of any improvement periods or extensions
thereto may cause a child to be in foster care more than fifteen
months of the most recent twenty-two months, unless the court
finds compelling circumstances by clear and convincing
evidence that it is in the child's best interests to extend the time
limits[.]
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Still, the Legislature has not defined “foster care” in Chapter 49 and, in the
context of this case, the term appears ambiguous. After discussing the law with my
colleagues, we have identified two competing but equally plausible interpretations of
“foster care.”
On the one hand, the interpretation offered by the parties is to say that
“kinship” or relative placement is not “foster care” under West Virginia Code § 49-4-
605(a)(1). In this case, DHHR placed the child with a relative (a cousin of the father’s)
after taking her from her parents’ custody. The parties assert that because DHHR had
placed the child in “kinship” care with a relative, and not with a stranger, the child was not
in “foster care” and DHHR was not bound by the fifteen-month rule in West Virginia Code
§ 49-4-605(a)(1).
Justice Walker recently discussed this interpretation in her concurrence to In
re H.W., ___ W. Va. ___, ___, 875 S.E.2d 247, 260 (2022) (Walker, J., concurring, with
whom Wooton J. joined). Justice Walker agreed that “foster care” is not defined, but noted
that since at least 2015, “foster family home” had been defined as “a private residence
which is used for the care on a residential basis of not more than six children who are
unrelated by blood, marriage, or adoption to any adult member of the household.” W. Va.
Code 49-1-206 (emphasis added). She also pointed out that a “foster parent” is defined as
nothing more than a person certified by DHHR “to provide foster care.” However, the
abuse and neglect statutes define a “kinship parent” as a person chosen “to provide kinship
placement,” that is, “the placement of the child with a relative of the child . . . or a
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placement of a child with a fictive kin[.]” ___ W. Va. at ___, 875 S.E.2d at 262 (quoting
W. Va. Code § 49-1-206). Justice Walker concluded that if one construes the various
statutes pertaining to kinship and foster placement together, it appears that the Legislature
intended for a relative, kinship placement to be distinct from a foster placement with non-
relatives. Taken together, the term “foster care” in West Virginia Code § 49-4-605(a)(1)
could be narrowly interpreted to encompass only placement of a child with non-relatives.
Hence, if DHHR gives a child a kinship placement with a relative, then the assertion can
be made that DHHR and the courts are not bound by the fifteen-month rule; the child can
be left in the kinship placement indefinitely. That is the position taken by the petitioner in
this action.
On the other hand, while the foregoing interpretation is inherently logical, it
is contrary to the polar-star principle of every abuse and neglect action: expeditiously
finding what is in the best interests of the child. This polar star applies also in the
interpretation of the abuse and neglect statutes. It is axiomatic that children are not served
by becoming long-term wards of the State, and often suffer from long-term separation from
their parents. Whether children are being placed with non-relative caregivers or their kin,
they need continuity and stability in their relationships. Generally, stability means either
returning them to their parents (if the conditions of abuse or neglect have been remedied)
or seeking permanent placement or adoption by others. Eviscerating the fifteen-month
limitation for DHHR when a child is in a temporary kinship placement creates conditions
for abuse and neglect cases to linger indefinitely.
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By interpreting the term “foster care” in West Virginia Code § 49-4-
605(a)(1) to encompass placements with both non-relative foster parents and kinship
parents, DHHR and the circuit courts will be impelled to bring closure to abuse and neglect
actions within the fifteen-month guideline imposed by the Legislature. By adopting the
alternative and excluding kinship placements from the fifteen-month requirement, a court
would be giving DHHR a blank check to put relative placements on the back burner and
allow a case to drag on ad infinitum. A child could be placed in a kinship relative’s house
and neither DHHR nor the courts would have any incentive to finalize the case. At great
expense to the State, the child would be adrift, never achieving permanency, and never
knowing when, or if, they will be reunited with their parent. For the courts, the impact
would be equally damaging: abuse and neglect cases would never close, and the required
sixty- or ninety-day reviews of cases would repeatedly clog the dockets of the circuit
courts, when this time could be used to resolve other cases equally in need of closure.
In sum, interpreting “foster care” in West Virginia Code § 49-4-605(a)(1) to
exclude kinship parents is at once a logical reading of the statute that may yet yield harmful
consequences for the children at the heart of the abuse and neglect system. Placing a child
with their kin, such as a grandparent, aunt, or uncle, is certainly an optimal solution in the
short term. But to exclude kinship placements from the meaning of “foster care” in West
Virginia Code § 49-4-605(a)(1) seems to violate the goal of the abuse and neglect statutory
scheme: expeditiously finding what is best for children.
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Hence, there are two equally compelling interpretations to West Virginia
Code § 49-4-605(a)(1), both of which are based on the Legislature’s use of the undefined
term “foster care.” The interpretation of the statute is not some hypothetical classroom
question; it has come to this Court twice in the last six months and is likely to reappear in
short order. Accordingly, I ask the Legislature to act and clarify the term “foster care,” and
specify whether DHHR’s duty to act within fifteen months in West Virginia Code § 49-4-
605(a)(1) is as binding upon DHHR when it has placed the child with a kinship relative as
it is when the child has been placed with non-relative.
I otherwise respectfully concur with the majority.
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