In re J.P. ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
FILED
June 15, 2020
No. 19-1089 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE: J.P.
_________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable Bridget M. Cohee, Judge
Civil Action No. 18-JA-89
REVERSED AND REMANDED
_________________________________________________________
Submitted: May 20, 2020
Filed: June 15, 2020
Christian Riddell Patrick Morrisey
Riddell Law Group Attorney General
Martinsburg, West Virginia Lee Niezgoda
Attorney for the Petitioners, Paternal Assistant Attorney General
Grandfather, C.P. and Maternal Charleston, West Virginia
Grandmother, S.D. Attorneys for the Respondent,
West Virginia Department of Health
and Human Resources
Elizabeth Layne Diehl Stephanie E. Scales-Sherrin
Diehl Law PLLC Scales Law Office
Martinsburg, West Virginia Martinsburg, West Virginia
Guardian Ad Litem for the Attorney for the Respondents,
Minor Child, J.P. Foster Parents, R.M. & A.M.
JUSTICE JENKINS delivered the Opinion of the Court.
JUSTICE HUTCHISON dissents and reserves the right to file a separate opinion.
JUSTICE WORKMAN not participating.
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 Interest of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996).
2. “West Virginia Code § 49-3-1(a) provides for grandparent preference
in determining adoptive placement for a child where parental rights have been terminated
and also incorporates a best interests analysis within that determination by including the
requirement that the DHHR find that the grandparents would be suitable adoptive parents
prior to granting custody to the grandparents. The statute contemplates that placement
with grandparents is presumptively in the best interests of the child, and the preference for
grandparent placement may be overcome only where the record reviewed in its entirety
i
establishes that such placement is not in the best interests of the child.” Syllabus point 4,
Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
3. “By specifying in West Virginia Code § 49-3-1(a)(3) that the home
study must show that the grandparents ‘would be suitable adoptive parents,’ the
Legislature has implicitly included the requirement for an analysis by the Department of
Health and Human Resources and circuit courts of the best interests of the child, given all
circumstances of the case.” Syllabus point 5, Napoleon S. v. Walker, 217 W. Va. 254, 617
S.E.2d 801 (2005).
ii
Jenkins, Justice:
This is an appeal by Petitioners 1 C.P. (“Paternal Grandfather”), the minor
child J.P.’s 2 paternal grandfather, and S.D. (“Maternal Grandmother”), J.P.’s maternal
grandmother, from a final order entered October 28, 2019, by the Circuit Court of Berkeley
County. By that order, the circuit court permanently placed the minor child 3 with R.M.
and A.M. (“Foster Parents”) instead of with an appropriate grandparent. On appeal,
Petitioners claim that the circuit court disregarded the statutory grandparent preference
under West Virginia Code § 49-4-114(a)(3) (LexisNexis 2015) by placing the child with
the Foster Parents because (1) Paternal Grandfather was a fit caretaker; (2) bureaucratic
failures of the state agencies of West Virginia and Pennsylvania led to the child staying
with the Foster Parents for an extended period of time while waiting for Paternal
Grandfather’s home study to be completed; and (3) placement with Paternal Grandfather
is in the child’s best interest. Accordingly, we find that the circuit court erred by not
adhering to the grandparent preference in this case where bureaucratic delays caused the
child to remain in the home of the foster family for an extended period of time, and where
there has been no showing that Paternal Grandfather is unfit or that such placement is not
1
Where necessary, the grandparents also will be referred to collectively as
“the Petitioners.”
2
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., 240 W. Va. 679, 682 n.1, 815 S.E.2d
490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016).
See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving
children).
3
The minor child, J.P., is currently four years old.
1
in the child’s best interest. Having considered the briefs submitted on appeal, the appendix
record, the parties’ oral arguments, and the applicable legal authority, we reverse the final
order of the Circuit Court of Berkeley County, and remand this matter for further
proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
In June of 2017, Respondent West Virginia Department of Health and
Human Resources (“DHHR”) filed a child abuse and neglect petition against the biological
parents of J.P. claiming that their alleged drug abuse impacted their ability to care for J.P. 4
The child was removed from the home of his biological parents on or about June 26, 2017.
The mother completed an improvement period, and the child was returned to her custody
in September of 2017. In April of 2018, the father’s parental rights were involuntarily
terminated. Two months later, in June of 2018, the DHHR filed a second abuse and neglect
petition against mother after she was arrested for selling drugs to an undercover officer.
The DHHR immediately placed J.P. with the Foster Parents.
One day after being placed with the Foster Family, on June 29, 2018, the
Petitioners moved to intervene to have the child placed with their families in Philadelphia,
4
J.P.’s paternal half-brother was also a party in this proceeding, but he was
ultimately reunified with his biological mother and now lives with her in Philadelphia,
Pennsylvania.
2
Pennsylvania. Paternal Grandfather lives with his adult daughter in Philadelphia,
Pennsylvania, and Maternal Grandmother lives in her own residence, also in Philadelphia.
At a multidisciplinary team (“MDT”) meeting on July 26, 2018, Maternal Grandmother
requested that the child live with her or her adult daughter. She also indicated that she was
willing to move to West Virginia in order to have immediate placement of the child, and
to avoid waiting for a home study to be completed pursuant to the Interstate Compact on
the Placement of Children (“ICPC”). However, after the MDT meeting, it was determined
that Maternal Grandmother was not a suitable placement for the child. Therefore, at the
September 21, 2018 MDT meeting, Paternal Grandfather requested placement of J.P. with
him, and began completing paperwork for the ICPC process in Pennsylvania.
Two months later, on November 20, 2018, mother’s parental rights were
involuntarily terminated, and the circuit court granted the Petitioners’ motion to intervene.
At the hearing, Paternal Grandfather clarified that he was requesting placement of J.P., and
that he lived in the same home as his adult daughter, J.P.’s paternal aunt. Afterwards, the
circuit court entered an order pursuant to the ICPC directing the DHHR to complete an
ICPC home study of Paternal Grandfather’s home. From here, setbacks in submitting
information to the proper authorities caused delays in completing the home study; it is
undisputed that these delays were not attributable to the Petitioners or the appropriateness
of the Paternal Grandfather’s home.
3
In January of 2019, the circuit court held a status hearing and learned from
the guardian ad litem that the ICPC request had to be resubmitted by the DHHR.
Thereafter, the DHHR did not resubmit the requested documents until April. Once the
home study process was properly initiated, there were additional unspecified delays
attributable to Pennsylvania’s child welfare agency, which was assigned to conduct the
home study. On May 14, 2019, the Foster Parents moved to intervene and requested
permanent placement of the child. The circuit court granted them intervenor status on May
16, 2019.
In July of 2019, the circuit court held a series of hearings to determine J.P.’s
placement. The Foster Parents presented the testimony of Dr. James Piper “Toby”
Behrmann, a licensed clinical psychologist, who testified as an expert regarding child
development and psychology. 5 In this case, Dr. Behrmann spent a significant amount of
time examining signs of “Reactive Attachment Disorder.” According to Dr. Behrmann,
his main concern was that J.P. was at risk for “not attaching well . . . [t]he research shows
that at [age] two if you are struggling with attachment, your risk for not attaching goes
high.”
5
The Foster Parents retained the services of Dr. Behrmann. Meanwhile,
Paternal Grandfather was unable to afford to retain his own rebuttal expert. He asked the
court for state funding, but the court denied this request and stated that the Petitioners were
not entitled to state funding for placement decisions. As such, the only expert to testify on
the issue of placement in this matter was an expert retained by the Foster Parents.
4
During his testimony, Dr. Behrmann presented the findings of the bonding
assessment he performed on the child and the adult parties, i.e., the Foster Parents and the
Petitioners. He first testified that the child acted appropriately with the Foster Parents and
the other children in their home. Specifically, Dr. Behrmann commented on the foster
father and how well he was “attuned” to the child’s frustrations and moods. However,
while the child appeared to be on the verge of forming an attachment with the Foster
Parents—in particularly, the foster father—the attachment had not yet formed, but was
“decent and growing.” Finally, Dr. Behrmann opined that the child was delayed in his
ability to form deep close interpersonal bonds and was at an increased risk of developing
Reactive Attachment Disorder if removed from the Foster Parents’ home.
Next, Dr. Behrmann offered testimony on the interactions between the
Petitioners and the child. He noted that Paternal Grandfather “did a good job. He was able
to pick up on [J.P.].” Dr. Behrmann acknowledged that the child had spent more of his life
with the Foster Parents than with Paternal Grandfather, and therefore, he observed that
“attachment was less [with Paternal Grandfather] than with [Foster Parents].” However,
he did note that Paternal Grandfather “was a comfort” and the child “was able to feel met
by what [Paternal Grandfather] did for him.” Regarding the child’s ability to bond with
Paternal Grandfather through placement, Dr. Behrmann stated: “The sad thing for me was
I think Pennsylvania wouldn’t accelerate whatever you need to do to look at the transfer so
that cost another year. That was a critical time period in terms of attachment disorder
risks.”
5
However, despite his concerns regarding the risk of J.P.’s inability to form
deep attachments, Dr. Behrmann testified that both the Foster Parents and the Paternal
Grandfather were appropriate placements for the child and reported no concerns with the
child’s interactions with either party. When asked if he had any opinion about whether it
would be detrimental to remove the child from the Foster Parents, Dr. Behrmann
unequivocally stated: “I want to be clear I am not making a custody recommendation. I
don’t have the data. I haven’t examined the homes. I haven’t seen them enough. I don’t
know enough of the case.” 6
The circuit court also heard testimony from a DHHR worker, a social worker
from the Children’s Home Society, the Paternal Grandfather, and the Foster Parents. When
questioned about the status of the home study, the DHHR worker testified that the ICPC
request for the home study—first requested in November of 2018—was resubmitted in
April of 2019, after a series of delays. She also testified that the DHHR had no
6
Dr. Behrmann commented repeatedly on the fact that “[t]here are a lot of
good people involved here. All the above parenting figures, at this point in time, deeply
care about [J.P.].” After spending time with all of the parties involved, Dr. Behrmann
commented once again on the difficulty of this case and his inability to make a final
placement determination. In his report filed with the circuit court, Dr. Behrmann described
some “regressive behavior” that J.P. experienced at his foster home after spending a
weekend with the Petitioners:
Was it because of extended time away from the [Foster
Parents] and thus inherently too stressful on [J.P], being away
from his now emotionally attached anchor point in life – [foster
father]? Or was [J.P.] fitting to/bonding to paternal grandfather
and maternal grandmother and found leaving them difficult,
taking a while to re-attach to [foster father]? I can’t know.
6
recommendation regarding the permanent placement of the child because Paternal
Grandfather’s home study had not been completed. However, she indicated that the DHHR
would be more likely to recommend placement with the Foster Parents because the child
had been in their care for over thirteen months. The circuit court stated that it would
withhold its ruling until the completion of a home study of Paternal Grandfather’s home.
The circuit court held a final placement hearing on September 9, 2019. At
the hearing, a letter dated September 6, 2019, was presented indicating that a third-party
company had completed a home study of Paternal Grandfather’s home in Philadelphia.
However, the DHHR argued that the letter was not an official document of the State of
Pennsylvania and stated that it had not received any official documentation regarding the
home study required by the ICPC.
After hearing final arguments from counsel, the circuit court went on to hand
down its ruling by making additional findings of fact. In rendering its ruling, the court
stressed that it had relied heavily on the testimony of Dr. Behrmann to determine which
placement was in J.P.’s best interest. The court further noted that it also considered the
mental and physical health of the parties and voiced its concerns about Paternal
Grandfather’s long term ability to parent a young child. 7 Ultimately, the circuit court found
7
The circuit court noted in its order that it had
concerns about the [P]aternal [G]randfather’s ability, due to his
age, to parent a very young child long-term, specifically as the
7
that it was in the child’s best interest to remain with the Foster Parents, and further found
that the best interests of the child outweighed the statutory preference for grandparent
adoption set forth in West Virginia Code § § 49-4-114(a)(3). The circuit court entered an
order reflecting its decision on October 28, 2019. It is from this order that Petitioners
appeal.
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
child approaches adolescence and later teenage years. The
[c]ourt is concerned that the challenges of parenting an older
adolescent could be too much for the [P]aternal [G]randfather
at that time in his life.
Paternal Grandfather was fifty-two years old at the time of the September 2019 final
placement hearing. Without any additional findings regarding Paternal Grandfather’s
health, we are not persuaded by the argument that Paternal Grandfather’s age of fifty-two
years would hinder his ability to parent J.P.
8
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., 196 W. Va. 223, 470 S.E.2d 177 (1996). Moreover,
because we will be examining the statutory grandparent preference, 8 we also must be
mindful of
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., 194 W. Va.
138, 459 S.E.2d 415 (1995).
In re K.L. and R.L., 241 W. Va. 546, 552, 826 S.E.2d 671, 677 (2019). With these
standards in mind, we now address the issue presented: whether the circuit court correctly
applied the grandparent preference found in West Virginia Code § 49-4-114(a)(3) under
the facts of this case.
III.
DISCUSSION
In the case sub judice, this Court is faced with a situation where multiple
families are fighting for the opportunity to provide J.P. with a safe, secure, and loving
home. Both the Foster Parents and the Petitioners have expressed interest in adopting the
8
See Section III, infra, for the text of West Virginia Code § 49-4-114(a)(3).
9
child, yet only one family can prevail under the law. In short, we are once again faced
with a situation in which we are litigating a child’s placement “only because too many
people love this little boy.” In re Clifford K., 217 W. Va. 625, 646, 619 S.E.2d 138, 159
(2005). Here, the circuit court examined two suitable placements for J.P.—one placement
with his Paternal Grandfather in Philadelphia, Pennsylvania, in close proximity to his
Maternal Grandmother and biological half-brother, and the other placement with the
Foster Parents, with whom he has lived for the duration of these proceedings—and,
ultimately placed J.P. with the Foster Parents. In making its placement decision, the
circuit court gave great weight to the fact that the child had spent a large portion of his life
in foster care and was, therefore, on the cusp of building an attachment with the Foster
Parents. However, on appeal to this Court, the Petitioners contend that the circuit court
erred in failing to apply a statutory policy preference for grandparent adoption, and
emphasized that the child’s extended foster care stay was due to bureaucratic failures in
both the West Virginia and Pennsylvania child welfare systems, and thus, the circuit court
failed to give them an adequate opportunity to receive placement of their grandchild under
the grandparent preference established by the West Virginia legislature.
In support of their position, the Petitioners argue that the circuit court erred
in refusing to place J.P. with Paternal Grandfather after he had a favorable home study and
a satisfactory evaluation from Dr. Behrmann. They further contend that procedural delays
and breakdowns in the ICPC process magnified the extent to which the child was injured
10
because the ICPC process, as employed in this matter, failed to adequately and timely allow
for consistent and familiar kinship interactions with the child when he needed it most.
Conversely, the Foster Parents and the DHHR argue that placement with the
Foster Parents did not occur only because the DHHR and the ICPC failed to procure a
timely home study of the Paternal Grandfather’s home. Rather, they contend that in
deciding to place the child with the Foster Parents, the circuit court found that while “both
parties would be able to provide a loving, secure home for the child, the [c]ourt believe[d]
that allowing the child to remain in the home of the foster family, with an adoption by
same, [was] in the child’s best interest.” Additionally, in furtherance of its goal to meet
the best interests of the child, the court found that the Foster Parents have shown “that they
will seek out the appropriate services that the child needs, and engage in said services, in
order to attempt to help the child heal from the damage he has suffered and will continue
to do so in the future.”
To resolve the matter presently before us, we need look no further than the
law of this State. The West Virginia Legislature recognized the importance of grandparent-
grandchild relationships when it adopted the grandparent preference to govern the adoption
of children whose parents’ parental rights have been terminated in the context of abuse and
neglect proceedings. Under West Virginia Code § 49-4-114(a)(3), the DHHR is expressly
required to determine whether grandparent placement would be appropriate before
considering placing a child with other potential adoptive parents:
11
For purposes of any placement of a child for adoption by the
department, the department shall first consider the suitability
and willingness of any known grandparent or grandparents to
adopt the child. Once grandparents who are interested in
adopting the child have been identified, the department shall
conduct a home study evaluation, including home visits and
individual interviews by a licensed social worker. If the
department determines, based on the home study evaluation,
that the grandparents would be suitable adoptive parents, it
shall assure that the grandparents are offered the placement of
the child prior to the consideration of any other prospective
adoptive parents.
The grandparent preference also has been set forth in the DHHR’s internal
regulations, which state, in part: “The statute contemplates that placement with
grandparents is presumptively in the best interests of the child, and the preference for
grandparent placement may be overcome only where the record reviewed in its entirety
establishes that such placement is not in the best interests of the child.” See West Virginia
Department of Health and Human Resources, Adoption Policy § 7.3 (revised March 17,
2020).
Further, we have specifically recognized that “[t]he grandparent preference
articulated in West Virginia Code § 49-3-1(a) must be recognized as essential guidance in
the determination of child placement.” Napoleon S. v. Walker, 217 W. Va. 254, 261, 617
S.E.2d 801, 808. Nonetheless, while we emphasize the importance of the grandparent
preference, we also note that this Court has found that the preference is not absolute. In
the case of In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 (2010) (per curiam), this
12
Court reversed the circuit court’s placement of a child with her grandparents, and reiterated
that the best interests of the child must always be considered in the first instance.
Specifically, the Court stated:
Our prior holdings in Napoleon are critically important insofar
as we explicitly recognized that a crucial component of the
grandparent preference is that the adoptive placement of the
subject child with his/her grandparents must serve the child’s
best interests. Absent such a finding, adoptive placement with
the child’s grandparents is not proper.
In re Elizabeth F. at 786, 696 S.E.2d at 302. Thus, while this preference must be balanced
with the best interests of the child, it is the child’s best interest that serves as the ultimate
determinable factor. See, e.g., Syl. pt. 5, in part, Carter v. Carter, 196 W. Va. 239, 470
S.E.2d 193 (1996) (“In . . . custody matters, we have traditionally held paramount the best
interests of the child.”).
In this regard, we have examined the interplay of the grandparent preference
statute and the child’s best interest, and explained that
West Virginia Code § 49-3-1(a)[3] provides for
grandparent preference in determining adoptive placement for
a child where parental rights have been terminated and also
incorporates a best interests analysis within that determination
by including the requirement that the DHHR find that the
grandparents would be suitable adoptive parents prior to
granting custody to the grandparents. The statute contemplates
that placement with grandparents is presumptively in the best
interests of the child, and the preference for grandparent
placement may be overcome only where the record reviewed
in its entirety establishes that such placement is not in the best
interests of the child.
Syl. pt. 4, Napoleon S., 217 W. Va. 254, 617 S.E.2d 801 (emphasis added). Moreover,
13
[b]y specifying in West Virginia Code § 49-3-1(a)(3)
that the home study must show that the grandparents “would
be suitable adoptive parents,” the Legislature has implicitly
included the requirement for an analysis by the Department of
Health and Human Resources and circuit courts of the best
interests of the child, given all circumstances of the case.
Syl. pt. 5, Napoleon S., 217 W. Va. 254, 614 S.E.2d 801.
As noted above, the sole issue before this Court is whether, with respect to
the permanent placement of J.P., the circuit court erred in placing him with the Foster
Parents for adoption rather than with Paternal Grandfather in view of the statutory
preference for grandparent placement. Based upon our review of the foregoing authorities
relied upon, we find that the circuit court erred in placing J.P. with the Foster Parents.
Unlike this Court’s previous cases 9 dealing with the grandparent preference,
the current case largely turns on the delays and shortcomings of the West Virginia DHHR
9
This Court has a long history of analyzing the statutory grandparent
preference located at West Virginia Code § 49-4-114(a)(3). However, in the majority of
these cases, the best interests of the child trumped the grandparent preference because the
grandparent was found to be unfit. See, e.g., In re K.E., 240 W. Va. 220, 809 S.E.2d 531
(2018) (awarding placement of the child to the foster family because grandparents took
minimal steps to obtain custody at the beginning of the proceedings and concerns arose
over the fact that the grandparents’ children, i.e., the parents whose rights had been
terminated, lived down the street in a house owned by the grandparents); In re L.M., 235
W. Va. 436, 774 S.E.2d 517 (2015) (ruling that custody of the child should be given to
foster family after learning that maternal grandparents had exposed grandchildren to items
from biological mother’s meth-contaminated home); In re Aaron H., 229 W. Va. 677, 735
S.E.2d 274 (2012) (ruling that adoptive placement of child with foster parents was proper
because grandfather could not comply with submitting paperwork; he did not request
additional time to complete the required paperwork, and he was found to be “transient”);
14
and its counterpart agencies in Pennsylvania. As this Court has emphasized, abuse and
neglect proceedings constitute a large part of our docket, and “[m]any of these cases are
replete with failures of the DHHR to live up to their responsibilities, not only to protect
children who are abused and/or neglected, but to address these children’s individualized
special needs which are often related to or the result of the abuse and/or neglect.” State ex
rel. W. Va. Dep’t of Health & Human Res. v. Dyer, 242 W. Va. 505, ___, 836 S.E.2d 472,
482 (2019). Consequentially, as a result of these unfortunate delays, we find that the circuit
court in the present case failed to apply the grandparent preference in an appropriate
manner. While we recognize that this case presented a difficult decision for the circuit
court—where two families were vying to provide the child with a safe, secure, and loving
home—it must be noted that being presented with a difficult decision does not excuse a
circuit court from examining all of the evidence required to be considered by the governing
statutory law and the applicable decisions of this Court.
In re Hunter H., 227 W. Va. 699, 715 S.E.2d 397 (2011) (placing child with foster family
because grandmother had occasional drug use in the home, and she resorted to yelling and
smacking as a form of discipline); In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296
(2010) (per curiam) (finding that best interests of the child were met by placement with the
foster family due to grandparent’s willingness to allow child multiple interactions with
grandparent’s adult children who abused drugs and whose rights to the child had been
terminated).
Unlike the grandparents in the above-referenced cases, in the case sub judice,
Paternal Grandfather was found to be a fit, suitable placement for the child.
15
Here, the circuit court focused almost exclusively on Dr. Behrmann’s expert
testimony regarding the child being on “the cusp” of forming a strong attachment bond
with the Foster Parents, the length of time the child had spent with the Foster Parents over
the course of his short life, and the importance of the child remaining “in a consistent
placement.” We acknowledge that each of these concerns is valid and important to the
circuit court’s decision. Nevertheless, in making these findings, the court ignored that the
length of said placement was almost entirely the fault of the delays caused and perpetuated
by the West Virginia and Pennsylvania state agencies involved, and utterly failed to give
any credence to the statutory law applicable to the unique facts of this case.
Petitioners have been involved in the underlying abuse and neglect
proceedings, and have expressed their interest in adopting J.P. since the very beginning of
this case—specifically, Petitioners came to West Virginia, retained an attorney, and
requested placement of the child just one day after he was removed from his mother’s home
and placed with the Foster Parents in June of 2018. In November of 2018, once it was
decided that Paternal Grandfather would be the grandparent seeking J.P.’s placement, the
circuit court entered an order pursuant to the ICPC, directing the DHHR to facilitate the
completion of an ICPC home study of Paternal Grandfather’s home. However, once the
paperwork was submitted, a series of bureaucratic delays ensued.
In January of 2019, the DHHR was informed that it had requested the wrong
home study under the ICPC, and that it needed to resubmit the paperwork. At the
16
placement hearing in July of 2019, the DHHR employee testified that the documentation
was not resubmitted to the State of Pennsylvania until late March or early April—some
three to four months after the DHHR had learned of its mistake. When asked why the
resubmission was delayed for so long, the DHHR employee testified: “Because I was not
aware how to do an ICPC.” At the final placement hearing in September of 2019, the
circuit court acknowledged that a letter from Pennsylvania New Foundations, Inc., was
filed with the court. The letter—addressed to Paternal Grandfather—informed him that he
was approved as an ICPC Resource Parent. Counsel for the DHHR stated that it had been
unable to get a “clear answer” from anyone in Pennsylvania as to whether Paternal
Grandfather had been officially approved by that State. The circuit court suggested that
the DHHR should be able to verify the letter through an ICPC worker in Charleston;
however, the DHHR never produced anyone to testify in this regard. Despite the existence
of the letter, however, the circuit court noted in its final order that the letter “was not an
official document indicating the status of whether or not the [Paternal Grandfather’s] home
study had actually been passed by the State of Pennsylvania or West Virginia.” Although
these delays are not attributable to any one agency, and no one person can be fairly accused
of causing them, such lengthy delays and missteps are unacceptable particularly when a
young child is awaiting permanency. See Syl. pt. 1, in part, In Interest of Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991) (“Child abuse and neglect cases must be recognized as
being among the highest priority for the courts’ attention. Unjustified procedural delays
wreak havoc on a child’s development, stability and security.”).
17
We find that the evidence provided to us in the record illustrates that
Paternal Grandfather is fit to care for his grandson, J.P., and that placing the child with
Paternal Grandfather is in J.P.’s best interest. As this Court held in Napoleon S.: “The
statute contemplates that placement with grandparents is presumptively in the best
interests of the child, and the preference for grandparent placement may be overcome only
where the record reviewed in its entirety establishes that such placement is not in the best
interests of the child.” Syl. pt. 4, in part, Napoleon S. v. Walker, 217 W. Va. 254, 617
S.E.2d 801 (2005) (emphasis added); see also West Virginia Code § 49-4-114(a)(3).
While this Court appreciates the thorough testimony and observations of Dr. Behrmann
and the circuit court’s attempt to act in the best interests of the child in this case, we find
that the evidence put forth shows that Paternal Grandfather should have been granted
placement of the child in accordance with the statutory grandparent preference. 10 Here,
10
This Court has emphasized the importance of grandparent-grandchild
relationships in prior cases. As we stated in Petition of Nearhoof, 178 W. Va. 359, 359
S.E.2d 587 (1987):
It is biological fact that grandparents are bound to their
grandchildren by the unbreakable links of heredity. It is
common human experience that the concern and interest
grandparents take in the welfare of their grandchildren far
exceeds anything explicable in purely biological terms. A very
special relationship often arises and continues between
grandparents and grandchildren. The tensions and conflicts
which commonly mar relations between parents and children
are often absent between those very same parents and their
grandchildren. Visits with a grandparent are often a precious
part of a child’s experience and there are benefits which
devolve upon the grandchild from the relationship with his
grandparents which he cannot derive from any other
relationship. Neither the Legislature nor this Court is blind to
18
there was no evidence presented to the circuit court that showed unfitness on behalf of the
Paternal Grandfather. Rather, in rendering its ruling, the circuit court explicitly stated that
Paternal Grandfather was able to provide a safe, secure, and loving environment for the
child: “I do not think either party would not be able to provide a stable and loving
environment. I believe that both of the homes could provide that.”
Furthermore, it was the Guardian ad Litem’s opinion that grandparent
placement was in J.P.’s best interest. At the final placement hearing, the Guardian told
the court:
All I can do as the Guardian Ad Litem is see how [J.P.]
interacts with his foster parents, see how [J.P.] interacts with
his grandparents, and review the court reports, review the
records from the social workers and professionals who have
been trained at being able to identify any concerns, review the
recommendations of Dr. Behrmann, and then make a
recommendation to the Court[.] . . . I believe in doing so that is
why my position has been and continues to be under the current
situation to allow for [J.P.] to be placed permanently with his
paternal grandfather.
The Guardian further emphasized her position in the brief she submitted to this Court. She
strongly noted that it was her recommendation “that placement with the foster family would
in her opinion provide short term relief to immediate risks of developing attachment
human truths which grandparents and grandchildren have
always known.
Id. at 364, 359 S.E.2d at 592 (quoting Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199,
204-05 (1975)).
19
disorders[,] but run contrary to the [child’s] long-term cultural, biological, familial, and
ethnic interests.” Further, the GAL feared
that as the [child] reaches an age of greater understanding and
begins to learn of these proceedings and the measures taken by
his biological family to keep him within the family unit[, it]
will cause the [child] longterm sorrow and resentment in
adolescence and adulthood which may likely destroy any bond
the [child] would have formed with his foster parents and
deprive him of the long-term attachments he would need in
adulthood. 11
Accordingly, we find that the best interests of J.P. would best be promoted
by placing him with Paternal Grandfather. Although this is a difficult decision based on
the adequacy of both homes, we cannot ignore this State’s statutory preference carved out
for grandparents who are found to be a fit and appropriate placement for their grandchild.
Therefore, we reverse the circuit court’s final order placing the child with the Foster Parents
and remand this case for entry of an order permanently placing the child with Paternal
Grandfather. 12 Upon remand, the circuit court is further instructed to ensure that the
11
We would be remiss if we did not acknowledge the Guardian ad Litem’s
diligent representation of J.P. in this case. In spite of countless delays by the DHHR in
requesting Paternal Grandfather’s home study and the additional delays propounded by the
agencies in Pennsylvania, the Guardian, when faced with this lack of information, took it
upon herself to travel to Philadelphia to visit Paternal Grandfather’s home to determine its
suitability for J.P.’s placement. We greatly appreciate the Guardian’s advocacy for her
minor client’s best interests, and her willingness to conduct such an investigation in this
case when information was lacking.
12
In light of our conclusion that the circuit court erred when it disregarded
the statutory grandparent preference, we need not address Petitioners’ alternative
contention that the circuit court also erred by failing to apply the statutory sibling
preference to the facts of this case. See West Virginia Code § 49-4-111(d)-(f) (LexisNexis
2015).
20
appropriate measures are implemented in facilitating this custodial transfer to minimize
any harm to the child. See Syl. pt. 3, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d
400 (1991) (“It is a traumatic experience for children to undergo sudden and dramatic
changes in their permanent custodians. Lower courts in cases such as these should provide,
whenever possible, for a gradual transition period, especially where young children are
involved. Further, such gradual transition periods should be developed in a manner
intended to foster the emotional adjustment of the children to this change and to maintain
as much stability as possible in their lives.”).
IV.
CONCLUSION
For the reasons set forth above, the October 28, 2019 order of the Circuit
Court of Berkeley County is hereby reversed, and this case is remanded for further
proceedings consistent with this Opinion.
Reversed and Remanded.
21