In re G.G.

896 S.E.2d 662

IN RE: G.G.

No. 22-0365

Supreme Court of Appeals of West Virginia.

Submitted: April 26, 2023

Filed: June 8, 2023

Concurring Opinion of Justice Bunn June 21, 2023

Syllabus by the Court

1. " ‘This Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, Napoleon S. v. Walker, 217 W. Va. 254,617 S.E.2d 801 (2005).

2. "Questions relating to … custody of the children are within the sound discretion of the court … its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syl., in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).

3. "Where 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).

4. "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." Syl. Pt. 2, In re K.L. and R.L., 241 W. Va. 546, 826 S.E.2d 671 (2019).

5. West Virginia Code § 49-2-126(a)(5) (2020) requires a circuit court to conduct a best-interest-of-the-child analysis before removing a foster child from his or her foster family home and placing that child in a kinship placement.

6. As written, West Virginia Code § 49- 2-126(a)(5) (2020) simply provides a right to a foster child, not an adoptive placement preference for the child’s relatives.

7. "The best interests of a child are served by preserving important relationships in that child’s life." Syl. Pt. 2, State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993).

8. "[T]he primary goal in cases involving abuse and neglect … must be the health and welfare of the children." Syl, Pt. 3, in part, In re Katie S., 198 W. Va, 79, 479 S.E.2d 589 (1996).

9. "[I]n a contest involving the custody of an infant where there is no biological parent involved, the best interests of the child are the polar star by which the discretion of the court will be guided." Syl. Pt. 1, in part, State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993).

Appeal from the Circuit Court of Raleigh County, Honorable Darl W. Poling, Judge, Civil Action No. 20-JA-73-P

Joseph H. Spano, Jr., Esq., Pritt & Spano, PLLC, Charleston, West Virginia, Attorney for Petitioners, S.M. and A.M.

Patrick Morrisey, Esq., Attorney General, Brittany Ryers-Hindbaugh, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for WV DHHR

Robert P. Dunlap, II, Esq., Dunlap and Associates, PLLC, Beckley, West Virginia, Attorney for Intervenors, J.M. and A.M.

Amber R. Hinkle, Esq., Taylor & Hinkle, Beckley, West Virginia, Guardian ad Litem

HUTCHISON, Justice:

The petitioners, S.M.¹ and A.M., appeal the April 11, 2022, order of the Circuit Court of Raleigh County denying their motion to intervene in this abuse and neglect case involving their niece, G.G. The petitioners filed their motion after the parental rights of G.G.’s biological parents were terminated, seeking to intervene at the permanency stage of the proceedings below and, ultimately, adopt G.G. In denying the petitioners’ motion, the circuit court found that it was in G.G.’s best interests to be adopted by the respondents, J.M. and A.M.,² who have been her foster parents since July 1, 2021. In this appeal, the petitioners contend that the circuit court erred in its finding. They argue that the Foster Child Bill of Rights, codified at West Virginia Code § 49-2-126 (2020), provides a preference for G.G. to be placed with her blood relatives and that because they were found to be a fit and suitable placement; they should have been allowed to adopt G.G. Upon consideration of the parties’ briefs and oral arguments, the submitted appendix records, and the pertinent authorities, we find no error and, therefore, affirm the circuit court’s decision.

I. Facts and Procedural Background

In May of .2019, approximately one year before G.G. was born, the West Virginia Department of Health and Human Resources ("DHHR") instituted an abuse and neglect proceeding against G.G.’s mother alleging that she had failed to supervise her other two children, A.R. and M.R., and was not providing them with adequate food and housing. There was also an allegation of drug activity in the home. G.G. mother’s stipulated to the allegations in the abuse and neglect petition, and at the time of G.G.’s birth, she had been granted a post-adjudicatory improvement period. Upon admission to the hospital to give birth, G.G.’s mother tested positive for heroin. Consequently, the DHHR amended the abuse and neglect petition in June 2020 to allege drug use by G.G.’s mother and to add G.G. to the proceedings. The DHHR then placed G.G. with Active kin.³

In April 2021, G.G.’s mother’s parental rights to her two older children were terminated,⁴ and she was granted a post-adjudicatory improvement period with respect to G.G. On July 1, 2021, the DHHR removed G.G. from the custody of her fictive kin and placed her with the respondents. While the Record is unclear as to exactly why G.G. was removed from her initial placement, it appears to have been due to a housing issue. Thereafter, G.G.’s biological father voluntarily relinquished his parental rights, and G.G.’s mother’s parental rights were involuntarily terminated at a final dispositional hearing in September 2021.⁵

On November 1, 2021, the respondents filed a motion to intervene in the abuse and neglect proceedings, seeking to adopt G.G. Ten days later, the petitioners filed their motion to intervene, also seeking permanent placement of G.G. Because the petitioners reside in Georgia, the DHHR was required to initiate a home study pursuant to the Interstate Compact on the Placement of Children ("ICPC"). See W. Va. Code §§ 49-7- 101 & 102 (2015); While that process was ongoing, the DHHR arranged for the petitioners to have video calls with G.G. The petitioners were also afforded three in-person visits with G.G. prior to the hearing on the motions to intervene.

The Circuit court held the hearing on the parties’ motions to intervene over the course of two days in March 2022. Both the petitioners and the respondents called multiple witnesses to testify, and the DHHR presented testimony as well. On April 11, 2022, the circuit court issued its ruling denying the petitioners’ motion to intervene and granting the motion filed by the respondents. The circuit court found that both the petitioners and the respondents were able to provide a suitable and fit placement for G.G. and noted that both had indicated a willingness to accept placement of her older siblings.⁶ The circuit court further found, however, that the determinative factor was G.G.’s best interests and that, given the amount of time she had resided with the respondents and the significant attachments that undoubtedly had been established, she should remain in that placement. Upon entry of the circuit court’s order, this appeal followed.

II. Standard of Review

[1–5] We recently adopted a standard of review for appeals concerning the denial of motions for permissive intervention in child abuse and neglect proceedings. See Syl. Pt. 1, In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022). Although the petitioners in this case are appealing the denial of their motion to intervene, the procedural posture of this case differs vastly from In re H.W. In this case, the circuit court held a full evidentiary hearing after the petitioners and the respondents filed their motions to intervene and then issued an order that not only denied the petitioners’ motion, but also determined G.G.’s permanent placement. While the circuit court did not grant the petitioners’ motion to intervene, it allowed them to fully participate in the hearing to the same extent it permitted the respondents, whose motion to intervene was ultimately granted. Accordingly, " ‘[t]his Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. Pt. 1, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). Because "[q]uestions relating to … custody of the children are within the sound discretion of the court … its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syl., in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). Finally, we apply the de novo standard of review to our examination of West Virginia Code § 49-2-126. As we have held, "[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). With these standards in mind, we proceed to review the circuit’s court decision.

III. Discussion

In this appeal, the petitioners argue that the circuit court’s decision to allow the respondents to intervene and, ultimately, adopt G.G. is contrary to a clearly established preference for relative placement set forth in the Foster Child Bill of Rights. In...