State ex rel. L.D. v. Cohee

• Decision Date: 02 December 2022
• Docket Number: 22-559
• Parties: State ex rel. L.D. v. Cohee
• Court: West Virginia Supreme Court

State ex rel. L.D. v. Cohee

No. 22-559

Supreme Court of Appeals of West Virginia

December 2, 2022

Chief Justice Hutchison, concurring:

"For a century-and-a-half, the courts of this State have been guided by the fundamental rule that, when addressing custody issues involving children, the best interests of the child trump all other considerations. It is the polar star that steers all discretion." Brooke B. v. Ray, 230 W.Va. 355, 361-62, 738 S.E.2d 21, 27-28 (2013) (footnote citing "polar star" cases omitted). As this Court said in 1925, "we must not lose sight of the rule that obtains in most jurisdictions at the present day, that the welfare of the child is to be regarded more than the technical legal rights of the parent." Connor v Harris, 100 W.Va. 313, 317, 130 S.E. 281, 283 (1925).

I concur with the majority's decision: the evidence establishes that the circuit court was bound under the law to return the child, L.D., to the custody of her parents. The child had been in DHHR's custody for fourteen months, the parents had successfully completed their improvement period and all of the parties agreed the child should be returned. On this record, the circuit court should have been guided by the interests of the child and promptly given her stability and continuity by returning her to her parents.^[1] I write separately to bring the Legislature's attention to a legal conundrum that was raised by the parties in their briefs. The parties discussed the ambiguous meaning of "foster care" in West Virginia Code § 49-4-605(a)(1) (2018). That provision contains a fifteen-month guideline that requires DHHR to take action and thereby prompt some resolution to an abuse and neglect action, if a child has been placed in "foster care" for at least fifteen months. The statute says that DHHR

shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights:

(1) If a child has been in foster care for 15 of the most recent 22 months as determined by the earlier of the date of the first judicial finding that the child is subjected to abuse or neglect or the date which is 60 days after the child is removed from the home[.]

(emphasis added.)^[2] See Syl. pts. 4 and 5, In re C.S., __ W.Va.__, 875 S.E.2d 350 (2022) (finding that while W.Va. Code § 49-4-605(a)(1) requires DHHR action DHHR must still prove, and the circuit court must still find, evidence of abuse or neglect). The majority correctly found the statute does not apply to this case because the action had only been pending for fourteen months when DHHR sought to return the child to the parents' custody.

Still, the Legislature has not defined "foster care" in Chapter 49 and, in the context of this case, the term appears ambiguous. After discussing the law with my colleagues, we have identified two competing but equally plausible interpretations of "foster care."

On the one hand, the interpretation offered by the parties is to say that "kinship" or relative placement is not "foster care" under West Virginia Code § 49-4-605(a)(1). In this case, DHHR placed the child with a relative (a cousin of the father's) after taking her from her parents' custody. The parties assert that because DHHR had placed the child in "kinship" care with a relative, and not with a stranger, the child was not in "foster care" and DHHR was not bound by the fifteen-month rule in West Virginia Code § 49-4-605(a)(1).

Justice Walker recently discussed this interpretation in her concurrence to re H.W., ___ W.Va. ___, ___, 875 S.E.2d 247, 260 (2022) (Walker, J, concurring, with whom Wooton J. joined). Justice Walker agreed that "foster care" is not defined, but noted that since at least 2015, "foster family home" had been defined as "a private residence which is used for the care on a residential basis of not more than six children who are unrelated by blood, marriage, or adoption to any adult member of the household." W.Va. Code 49-1-206 (emphasis added). She also pointed out that a "foster parent" is defined as nothing more than a person certified by DHHR "to provide foster care." However, the abuse and neglect statutes define a "kinship parent" as a person chosen "to provide kinship placement," that is, "the placement of the child with a relative of the child . . . or a placement of a child with a fictive kin[.]" __ W.Va. at__, 875 S.E.2d at 262 (quoting W.Va. Code § 49-1-206). Justice Walker concluded that if one construes the various statutes pertaining to kinship and foster placement together, it appears that the Legislature intended for a relative, kinship placement to be distinct from a foster placement with non-relatives. Taken together, the term "foster care" in West Virginia Code § 49-4-605(a)(1) could be narrowly interpreted to encompass only placement of a child with non-relatives. Hence, if DHHR gives a child a kinship placement with a relative, then the assertion can be made that DHHR and the courts are not bound by the fifteen-month rule; the child can be left in the kinship placement indefinitely. That is the position taken by the petitioner in this action.

On the other hand, while the foregoing interpretation is inherently logical, it is contrary to the polar-star principle of every abuse and neglect action: expeditiously finding what is in the best interests of the child. This polar star applies also in the...