In re J.P.

• Decision Date: 15 June 2020
• Docket Number: No. 19-1089,19-1089
• Citation: 844 S.E.2d 165
• Parties: IN RE: J.P.
• Court: West Virginia Supreme Court

844 S.E.2d 165

IN RE: J.P.

No. 19-1089

Supreme Court of Appeals of West Virginia.

Submitted: May 20, 2020

Filed: June 15, 2020

Christian Riddell, Riddell Law Group, Martinsburg, West Virginia, Attorney for the Petitioners, Paternal Grandfather, C.P. and Maternal Grandmother, S.D.

Patrick Morrisey, Attorney General, Lee Niezgoda, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent, West Virginia Department of Health and Human Resources.

Elizabeth Layne Diehl, Diehl Law PLLC, Martinsburg, West Virginia, Guardian Ad Litem for the Minor Child, J.P.

Stephanie E. Scales-Sherrin, Scales Law Office, Martinsburg, West Virginia, Attorney for the Respondents, Foster Parents, R.M. & A.M.

Jenkins, Justice:

This is an appeal by Petitioners¹ C.P. ("Paternal Grandfather"), the minor child J.P.’s² 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 child³ 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 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, 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.

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."

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."

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 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...