In re K.L. and R.L. Decided April 4, 2019 Signed Opinion

This case explored the issue of a relative preference in the placement of children who are not reunified with one or both of their parents. Briefly, the DHHR filed an abuse and neglect petition against the biological parents due to issues involving domestic violence and illicit drug use.  The parents did not attempt to work on the goals in their family service plan and thus, the circuit court determined a termination of both parents’ rights was in the best interest of the children.  After the termination, the circuit court awarded custody of the children to their paternal aunt and uncle as the children’s blood relatives, even though those relatives lived in Michigan and had had limited contact with the children.  The foster parents informed the circuit court they wished to adopt the children and both children had made significant process in the foster parents’ home.  As a result of the circuit court’s decision, the DHHR, the GAL, and the foster parents all filed appeals challenging the lower court’s determination.

Upon review of this case, the Supreme Court of Appeals of West Virginia held there are only two statutory family preferences applicable to this case – (1) where possible, siblings should be raised together and (2) adoptive placement with grandparents is preferred over adoptive placement with foster parents/other individuals wishing to adopt.  The Court stressed there is no general relative preference regarding placement of the children and, as in all cases involving the custody of children, the decision should be based on what is in the children’s best interest.  The Court explained it found the circuit court to be clearly erroneous in awarding custody of the children to their paternal aunt and uncle, reversed the lower court’s order, and remanded the case to the lower court for entry of an order consistent with this opinion.

The Court emphasized the need for all parties, including the circuit court, to read the relevant statutes carefully and only apply the statutes that are applicable to the children’s current context (working toward reunification vs. TPR and working toward permanent placement).  For example, the Court stated:

Insofar as the parental rights of R.L. and K.L.’s parents were terminated and they were placed in the permanent guardianship of the DHHR pursuant to W. Va. Code § 49-4-604(b)(6), the dispositional alternatives of W. Va. Code § 49-4-604(b)(5), which concerns placing children temporarily with the DHHR, do not apply to the disposition made by the circuit court in its 17 November 3, 2017 dispositional order. Thus, the circuit court’s reliance on the provisions of W. Va. Code § 49-4-604, generally, do not support its finding of a relative preference.

Parties must be careful not to confuse placement preferences for temporary placements (working toward reunification) with placement preferences for permanent placements (parental rights have been terminated).

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