In re H.

• Decision Date: 14 June 2011
• Docket Number: Nos. 35750,35751.,s. 35750
• Court: West Virginia Supreme Court
• Parties: In re HUNTER H.

227 W.Va. 699

715 S.E.2d 397

In re HUNTER H.

Nos. 35750

35751.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 2011.Decided June 14, 2011.

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 the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “ W.Va.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 presumably 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.” Syllabus Point 4, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005).

3. “By specifying in W.Va.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).

4. “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.” Syllabus Point 3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

Lisa M. Hawrot, Esquire, Jacob A. Manning, Esquire, Dinsmore & Shohl, LLP, Wheeling, WV, for Appellants.Robert G. McCoid, Esquire, McCamic, Sacco, Pizzuti & McCoid, PLLC, Wheeling, WV, for Appellee.Darrell V. McGraw, Jr., Attorney General, Katherine M. Bond, Assistant Attorney General, for Appellee.Joseph J. Moses, Esquire, Wheeling, WV, Guardian ad Litem.

PER CURIAM:

This is a consolidated appeal from the Circuit Court of Ohio County wherein the circuit court ordered that the minor child, Hunter H.¹, be permanently placed with his maternal grandmother, rather than his foster parents, whom the child had lived with for three years and who were seeking to adopt him.

The appellants, the foster parents and Hunter H.'s guardian ad litem, appeal from the circuit court's order and raise three main arguments: (1) the circuit court erred by giving improper weight to the statutory and Department of Health and Human Resources (“DHHR”) policy preference for grandparent adoption, rather than focusing its analysis on the best interests of the child; (2) the circuit court's findings of fact were clearly erroneous and implausible in light of the entire evidentiary record; and (3) the circuit court erred when it failed to grant the foster parents' motion to stay and erred by ordering Hunter H. to be immediately transferred from his foster parents to his grandmother without a gradual transition period.

After a thorough review of this matter, we agree with the appellants that the circuit court erred by giving improper weight to the grandparent preference, rather than focusing its analysis on the best interests of the child. We therefore reverse the circuit court's ruling and remand for entry of an order requiring that Hunter be placed with his foster parents for adoption.

I.Facts & Background

Hunter H. was born on March 6, 2006. When Hunter was approximately 17 months old, his maternal grandmother, Donna D. (“Grandmother Donna” or “grandmother”) contacted the DHHR because she feared for Hunter's safety after discovering that his biological parents were using crack cocaine.² On August 16, 2007, Grandmother Donna agreed to take custody of Hunter until a safety plan could be put into place. The DHHR subsequently received information that Grandmother Donna's husband, Frank B., regularly used marijuana and alcohol and had difficulty controlling his behavior. Due to these concerns, the DHHR sought to remove Hunter from Grandmother Donna's house and filed an abuse and neglect petition on behalf of Hunter, naming Hunter's biological parents, as well as Grandmother Donna and Frank B. as respondents. The child case plan prepared by Hunter's child protective services worker on September 22, 2009, described the conditions that existed in Grandmother Donna's residence prior to Hunter's removal:

Hunter H. was staying with his maternal grandmother at that time as the result of a safety plan. Due to the illegal drug use and domestic violence between Amanda L. and Robert H. (Hunter's natural parents) and the criminal history and drug use by paternal grandfather Frank B., it was determined to be in the best interest of Hunter H. that he [sic] removed from the home. The actions of the caretakers put Hunter at high risk of harm.Hunter was subsequently removed from Grandmother Donna's residence and placed with foster parents, Joyce and Jerry W., where he resided continuously from August 2007 through August 2010.

Three months after Hunter was removed, Grandmother Donna asked the DHHR to conduct a home study of her residence so that she could be considered as a permanent placement option for Hunter. This home study was denied in December 2007 because of Frank B.'s substance abuse problems and his erratic behavior. Grandmother Donna and Frank B. were dismissed as respondents from the abuse and neglect petition in May 2008 because they were not being considered as a permanent placement option for Hunter at that time.³

Due to a change in circumstance, Grandmother Donna's separation and impending divorce from Frank B.⁴, the DHHR conducted a second home study of her residence in May 2009. Prior to this second home study, Grandmother Donna underwent a psychological evaluation with Dr. Fremouw, who concluded that she had “no strategy” for disciplining Hunter and that she had a “tendency to deny or avoid common problems.” Despite these issues, Dr. Fremouw characterized her as “a loving grandmother who is committed to her grandchild,” but also stated that she needed to learn more appropriate ways of disciplining young children other than “yelling” at them or “smacking” them.

The second home study of Grandmother Donna's residence was approved on July 28, 2009. Following this approved home study, the DHHR sought to permanently move Hunter from the foster parents house and place him with Grandmother Donna. Hunter's guardian ad litem raised a number of objections to this proposed move, stating that it was not in the child's best interest to be removed from a stable, loving environment. He noted that Hunter was thriving with his foster family, identified his foster parents as “mom” and “dad” and identified his foster parents' daughter as “sis.” The guardian ad litem was also concerned that Grandmother Donna had not gone through an improvement period after being named as a respondent in the abuse and neglect petition. He stated, “I don't recall any case that any child was returned to a home of a respondent custodian” without the respondent completing an improvement period. ⁵ The guardian ad litem was also concerned with the possibility that Hunter's biological mother, who had relinquished her parental rights due to her drug problem, would be allowed to have contact with Hunter if he was moved to Grandmother Donna's house.

Despite these objections, the DHHR requested that Hunter be placed with Grandmother Donna following a multidisciplinary treatment team (“MDT”) meeting on August 18, 2009. The foster parents filed a motion to intervene, which the circuit court granted. Following four days of testimony regarding Hunter's permanent placement, the circuit court ordered that Hunter “be immediately and permanently placed with his maternal grandmother, Ms. Donna D.,” because she had a successful home study, was recommended for placement by the DHHR, and because of the statutory grandparent preference found in W.Va.Code § 49–3–1(a)(3) [2001]. The foster parents and guardian ad litem filed motions to stay this order, which the circuit court denied on August 12, 2010.⁶ Following the denial of these motions to stay, Hunter was placed with Grandmother Donna. The foster parents and guardian ad litem appeal from the circuit court's order placing custody of Hunter with Grandmother Donna.

II.Standard of Review

The standard of review that governs appeals in abuse and neglect cases is set forth in Syllabus Point 1 of In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). It states:

Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such...