In re R.S., No. 20-0565

CourtSupreme Court of West Virginia
Writing for the CourtARMSTEAD, Justice
Citation244 W.Va. 564,855 S.E.2d 355
Parties IN RE: R.S.
Docket NumberNo. 20-0565
Decision Date16 March 2021

244 W.Va. 564
855 S.E.2d 355


No. 20-0565

Supreme Court of Appeals of West Virginia.

Submitted: February 10, 2021
Filed: March 16, 2021

Carlie M. Fisher, Esq., Schrader, Companion, Duff & Law, PLLC, Wheeling, West Virginia, Counsel for Petitioners, H.G. and B.G.

Mark D. Panepinto, Esq., Panepinto Law Offices, Wheeling, West Virginia, Guardian ad Litem for the child, R.S.

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

ARMSTEAD, Justice:

855 S.E.2d 358

This appeal concerns two foster families seeking permanent placement of the child, R.S.1 The circuit court ruled that new legislation, including W. Va. Code § 49-2-126(a)(6) (2020), mandated that R.S. be placed in the same home as his siblings. It determined that "there is nothing in this statute that directs that the Court do a balancing test or a best interest [of the child] analysis." The issue on appeal is whether the circuit court's interpretation of this new legislation was erroneous.

After review, we find that the circuit court's ruling is not supported by 1) the plain language of W. Va. Code § 49-2-126(a)(6), 2) pre-existing statutory law addressing the sibling preference, and 3) this Court's well-established caselaw that "the best interests of the child is the polar star by which decisions must be made which affect children." Michael K.T. v. Tina L.T. , 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (citation omitted). We reverse the circuit court's June 11, 2020, permanent placement order, and remand this matter to the circuit court for an evidentiary hearing, and further proceedings consistent with our ruling herein.


R.S. was born in 2018. He is the youngest of five children born to C.S. and J.S. ("biological parents"). R.S. was removed from his biological parents’ custody when he was three months old due to allegations of abuse and neglect, and placed in the custody of the West Virginia Department of Health and Human Resources ("DHHR"). During the next year, R.S. spent time in two foster homes. Approximately one year after being removed from his biological parents’ custody, R.S. and his four siblings were placed back with their biological parents. However, all five children were removed from the biological parents’ home shortly thereafter. After this removal, R.S. was placed with another foster family—Petitioners, H.G. and B.G. ("Petitioners").2 This placement was made in July of 2019.

855 S.E.2d 359

The circuit court terminated the biological parents’ parental rights in December of 2019. In February of 2020, Petitioners moved the circuit court to intervene, stating that they wanted to adopt R.S. Petitioners’ motion provided that R.S. had formed a strong emotional bond with them and their two young children. The circuit court granted their motion to intervene.

At a review hearing in March of 2020, the DHHR informed the circuit court that it had located another foster family ("the K family") that would accept placement of all five siblings, including R.S. Counsel for Petitioners reiterated their desire to adopt R.S. at this hearing. The circuit court ordered the DHHR to complete a home study of the K family's residence. On March 23, 2020, the K family's home study was approved, and the four oldest siblings were placed with them.

Petitioners filed a motion with the circuit court raising concerns about removing R.S. from their care, and asserting that R.S. had developed a secure attachment and stability in their home. Petitioners also alleged that the K family did not have a relationship with R.S., and that R.S. did not have a significant relationship with his siblings. Based on these concerns, Petitioners requested that the circuit court order an expert assessment to examine the risks in moving R.S. to the K family's home.

The DHHR filed a response to this motion. It agreed that an expert bonding assessment should be conducted, and stated that a full evidentiary hearing was required to determine which placement would be in R.S.’s best interest. The Guardian ad Litem ("GAL"), who represented R.S. and his four siblings, objected to the request to conduct an expert bonding assessment. The GAL did not file a motion explaining his objection. Instead, the GAL orally told the circuit court that he believed R.S. should be placed with his other siblings in the K family home immediately.3

The circuit court entered an order on June 3, 2020, granting the motion for an expert bonding assessment, and ordered that it be filed with the court prior to June 30, 2020. Further, the circuit court ordered that a full evidentiary hearing on R.S.’s permanent placement would occur on July 30, 2020.

This evidentiary hearing did not occur. Instead, the circuit court issued an order on June 11, 2020, without conducting an evidentiary hearing and without having received the expert bonding assessment. The circuit court ordered that R.S. be permanently placed with his siblings in the K family's home based upon newly enacted legislation, W. Va. Code § 49-2-126, and W. Va. Code § 49-2-127 (2020),4 which became effective on June 5, 2020. The circuit court concluded that under this new legislation, it had no authority to consider R.S.’s best interests over the child's right to be placed with his siblings. The order provides,

[t]he Court must balance the rights of [Petitioners] to be "considered" as permanent placement for [R.S.] against [R.S.’s] statutory right under W. Va. Code § 49-2-126(a)(6) to be placed with a foster family, when possible, with his siblings. [R.S.] has clearly and definitively exercised this right, by and through his GAL, who is acting in [R.S.’s] best interests. Obviously, it is possible to place [R.S.] with his siblings given that the siblings are currently placed with a DHHR approved foster family that desires to have [R.S.] permanently placed with them. Further, [R.S.’s] siblings want him placed there.

There is nothing in this statute that directs that the Court do a balancing test or a best interests analysis when [R.S.] has definitively exercised his statutory rights.

The circuit court stayed the order for thirty days to permit Petitioners to appeal, and ruled that R.S. would not be removed from

855 S.E.2d 360

Petitioners’ custody until the appeal was resolved. Petitioners filed a timely appeal of the circuit court's order in July of 2020, and retained custody of R.S. However, on December 5, 2020, the GAL filed an emergency motion with the circuit court to lift the stay of its prior order and to remove R.S. from Petitioners’ custody and place him with the K family. The GAL's motion alleged that Petitioners were encouraging R.S. to make unfounded allegations of physical abuse against the K family. According to Petitioners’ counsel, she received this motion on December 7, 2020, and requested the opportunity to file a response by the end of the day. However, before Petitioners had the opportunity to respond, the circuit court granted the motion on December 7, 2020, and R.S. was immediately removed and placed with the K family.5

During oral argument in this matter, counsel for Petitioners strongly contested the assertion that Petitioners encouraged R.S. to make unfounded allegations of physical abuse against the K family. Petitioners’ counsel argued that the GAL's emergency motion had no basis in fact, and that the GAL offered no evidence to support this allegation. The GAL's Rule 11(j)6 update to this Court included a general statement on the emergency motion:

The emergency motion was filed in light of what was perceived to be unfounded allegations of abuse and neglect alleged by the Appellants [Petitioners] and directed against the current foster to adopt family [the K family] alleging maltreatment of [the] minor child, R.S., during R.S.’s visits with his older sisters which occurred at the foster to adopt family's [the K family's] home. The allegations have been investigated and found to be without merit.

R.S. has resided with the K family since the circuit court granted the GAL's emergency motion in December of 2020.


Generally, "[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. 1, Napoleon S. v. Walker , 217 W. Va. 254, 617 S.E.2d 801 (2005) (internal citation omitted). This case requires us to examine W. Va. Code § 49-2-126. We 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. 3, Alden v. Harpers Ferry Police Civil Serv. Comm'n , 209 W. Va. 83, 543 S.E.2d 364 (2001) (internal citation omitted). With these standards in mind, we consider the parties’ arguments.


This appeal mainly concerns whether the circuit court erred in its interpretation of W. Va. Code § 49-2-126. We will...

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1 practice notes
  • Miller v. WesBanco Bank, Inc., No. 20-0041
    • United States
    • Supreme Court of West Virginia
    • June 11, 2021
    ...that were purposely included[.]" Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013) ; In re R. S. , 244 W.Va. 564, ––––, 855 S.E.2d 355, 364 (W. Va. 2021) ("Our rules of statutory construction do not permit us to disregard a statute without legislative dir......
1 cases
  • Miller v. WesBanco Bank, Inc., No. 20-0041
    • United States
    • Supreme Court of West Virginia
    • June 11, 2021
    ...a statute] that were purposely included[.]" Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013) ; In re R. S. , 244 W.Va. 564, ––––, 855 S.E.2d 355, 364 (W. Va. 2021) ("Our rules of statutory construction do not permit us to disregard a statute without legislative di......

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