In re Carol B.

• Decision Date: 29 June 2001
• Docket Number: No. 28888.,28888.
• Citation: 209 W.Va. 658,550 S.E.2d 636
• Parties: In re Shanee CAROL B.
• Court: West Virginia Supreme Court

550 S.E.2d 636

209 W.Va. 658

In re Shanee CAROL B.

No. 28888.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 2001.

Decided June 29, 2001.

Harley E. Stollings, Esq., Summersville, West Virginia, Guardian ad Litem.

Gregory W. Sproles, Esq., Breckinridge, Davis & Sproles, Summersville, West Virginia, for Ralph & Patricia B.

Margaret L. Workman, Esq., Margaret Workman Law, Charleston, West Virginia, Attorney for Richard & Valerie A.

Darrell V. McGraw, Jr., Esq., Attorney General, Tanya Godfrey, Esq., Assistant Attorney General, Charleston, Keith W. McMillion, Esq., Prosecuting Attorney of Nicholas County, Kelly Hamon, Esq., Assistant Prosecuting Attorney of Nicholas County, Summersville, West Virginia, Attorneys for West Virginia Dept. of H&HR. MAYNARD, Justice:

This is a disputed adoption case. The Circuit Court of Nicholas County awarded the infant, Shanee Carol B.,¹ to her paternal aunt and uncle, Ralph and Patricia B., the appellees. The infant's maternal aunt and uncle, Richard and Valerie A., now appeal this ruling. For the reasons stated below, we reverse.

I. FACTS

In September, 2000, Eric and Krissa B., the biological parents of Shanee Carol B. ("Shanee"), born on July 16, 1998, relinquished their parental rights to Shanee after a finding of neglect. Subsequently, Ralph and Patricia B. ("the Bs"), the paternal aunt and uncle of Shanee, appellees herein, sought to adopt her. The appellants, Richard and Valerie A. ("the As"), Shanee's maternal aunt and uncle, also sought to adopt her. Previously, Richard and Valerie A. adopted Shanee's siblings, Eric, born on January 1, 1996, and Shaquilla, born on January 23, 1993, after the children's biological parents relinquished their parental rights to these children. Shanee has been living with Richard and Valerie A. since May 2000, when she was temporarily placed there by the West Virginia Department of Health and Human Resources ("DHHR").

The Circuit Court of Nicholas County held several hearings to determine the ultimate placement of Shanee. During one of these hearings, Shanee's Child Protective Services Worker from the DHHR testified that Shanee should be placed with Richard and Valerie A. This recommendation was based in large part on the "sibling preference" found in W.Va.Code § 49-2-14(e), and on the psychological profiles of the prospective parents. The guardian ad litem recommended that Shanee be placed with Ralph and Patricia B. Admitted into evidence were the psychological profiles performed by Stephen L. O'Keefe, Ph.D., and his letter to the judge in which he recommended shared parenting between the parties. Also, Dr. O'Keefe, who performed the psychological profiles on both sets of prospective parents, testified that, although both couples are appropriate for the placement of Shanee, he recommended Mr. and Mrs. B.²

By order of November 21, 2000, the circuit court found that it is in the best interests of Shanee to be placed with Ralph and Patricia B., and that visitation of one weekend a month be continued with Richard and Valerie A. for six months. The circuit court made the following findings of fact and conclusions of law.

1. The Court has considered the preference for sibling placement contained in West Virginia Code § 49-2-14 and find [sic] the presumption of placement is rebutted due to the following:

a. The infant, Shanee Carol [B.], was born to the natural parents after the rights to any siblings had been terminated and said siblings had been adopted.

b. No sibling bond was ever formed between the infant ... and her siblings and therefore no siblings [sic] relationship actually exists, also there were occasional visits on holidays.

c. The Court originally place[d] the infant... in the temporary care of the [sic] Ralph and Patricia [B.], and was asked to move the child to the [As] by the [DHHR] as they felt placement with the siblings was mandatory. At the time the infant... was moved, the Court stated that it would not consider the move when deciding final placement.

d. The relationship between Ralph [B.] and Patricia [B.] on the one hand and the infant ... were [sic] formed while the child was still quite young and before the removal of the infant ... as Ralph [B.] and Patricia [B.] babysat for the infant ..., fed her and bathed her.

2. Placement of the infant ... with Ralph [B.] and Patricia [B.] would be in the best interest of the infant ... for the following reasons:

a. Ralph [B.] and Patricia [B.] are the natural uncle and aunt of the infant, Shanee Carol [B.], and were frequent caretakers of the child and provided financial and support services to said infant ... before her removal from the home of the biological parents.

b. After an investigation the Guardian-Ad-Litem recommended that placement with [the Bs] would be in the best interests of the infant[.]

c. A psychological evaluation of Dr. Stephen O'Keefe found that either of the homes would be beneficial to the child but that placement with [the Bs] was in the best interest of the infant[.]

d. The [DHHR's] recommendation of placement with [the As] was because they felt they were bound by West Virginia Code § 49-2-14.

e. Even though both fathers had psychological issues with placing the child in the home according to Dr. O'Keefe, the scales in that regard tilt in favor of placement with [the Bs].

f. Even though both prospective fathers had criminal records that would be considered minor and would not interfere with either's ability to be an appropriate parent.

g. The infant, Shanee Carol [B.], had bonded with both [the Bs] and [the As].

h. Dr. Stephen L. O'Keefe, a psychologist who conducted a psychological evaluation on all of the relevant parties, recommended placement of the infant ... with Ralph [B.]and Patricia [B.].

i. [The Bs] do not have a child in their home j. Based upon the testimony of Dr. O'Keefe, the two (2) siblings are [sic] in the home of [the As], are very demanding siblings.

3. The Court does conclude by finding that the placement of the child with [the Bs] in which the infant ... is the only child in the home, would allow the infant... to have greater security, attention and resources, and further, that Dr. O'Keefe found that placement with the infant's ... siblings may not be in the best interest of any of the children due to the extra stress that would be placed on the parents.

The circuit court stayed the execution of the order for seven days in order to allow Richard and Valerie A. to file an appeal. This Court subsequently granted the petition for appeal and stayed the execution of the circuit court's order pending resolution of the appeal.

II. STANDARD OF REVIEW

Prior to discussing the issues raised by the parties, we set forth the applicable standards of review.

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Also, "[w]e review the circuit court's application of the law to undisputed facts de novo." In Re Petrey, 206 W.Va. 489, 490, 525 S.E.2d 680, 681 (1999). See also Lee v. Gentlemen's Club, Inc., 208 W.Va. 564, 542 S.E.2d 78 (2000); State ex rel. United Mine Workers v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997); and Lawrence v. Cue Paging Corp., 194 W.Va. 638, 461 S.E.2d 144 (1995).

III. DISCUSSION

Richard and Valerie A. and the DHHR aver that the circuit court erred in failing to adhere to the strong sibling preference mandated by West Virginia statute and case law. They argue that our law prefers that Shanee remain with her two siblings absent clear and convincing evidence to the contrary.

Ralph and Patricia B. and the guardian ad litem respond that the sibling preference expressed in W.Va.Code § 49-2-14 is rebutted by the evidence. First, they note that Shanee never developed a close bond with her siblings because they were removed from the household prior to her birth, and there is no evidence that Shanee even knew her siblings prior to being placed with Richard and Valerie A. in May 2000. Second, W.Va.Code § 49-2-14(e) provides for the separation of siblings if harm would result to one or more of the siblings by joining them, and if reunification would not be in their best interests. The guardian ad litem claims that both of these circumstances are present here as shown by Dr. O'Keefe's testimony that Eric, Shanee's brother, is "hyper"³ and demanding, and that his competition with his sister Shaquilla is "unusual" and "extreme." The guardian ad litem concludes that the needs of both Shanee and Eric would be compromised by competition for attention in the A. household. Finally, the guardian ad litem points to Dr. O'Keefe's finding that Richard A. is emotionally detached from the children and his wife and dissatisfied with life in general as evidence that Shanee should not be placed with Richard and Valerie A.

This case is governed by W.Va.Code § 49-2-14(e) (1995)⁴ which states:

(e) When a child is in a foster care arrangement and is residing separately from a sibling or siblings who are in another foster home or who have been adopted by another family and the parents with whom the placed or adopted sibling or siblings reside have made application to the department to establish an intent to adopt or to enter into a foster care arrangement regarding a child so that said child may be united or reunited with a sibling or siblings, the state department shall upon a determination of the fitness of the persons and household seeking to enter into a foster care arrangement or seek an adoption which would unite or reunite siblings, and if termination and new placement are in the best interests of the

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