                                                                                FILED
No. 19-1089 - In re: J.P.                                                    June 15, 2020
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Hutchison, Justice, dissenting:

                  In this case, the majority has elevated the “rights” of the grandparent above

the best interests of the child. For almost a hundred years, this Court has made clear that

“[i]n a contest over the custody of an infant, the welfare of the child is the polar star by

which the discretion of the court is to be guided.” Syl., State ex rel. Palmer v. Postlewaite,

106 W.Va. 383, 145 S.E. 738 (1928).            I am shocked and dismayed that the majority

decided to cast aside this guiding principle when presented with undisputed evidence that

removing this child from his foster parents would be “too harmful” and would create a

“substantial risk” that he would develop reactive detachment disorder. Frustration with the

DHHR because of the bureaucratic delays that resulted in the grandfather’s home study not

being completed for more than a year was no excuse for the majority to ignore what is in

J.P.’s best interests. I do not wish to be a part of the tragedy that is going to befall this

fragile child when he is ripped away from the only stable home he has ever known because

of the majority’s desire to punish the DHHR. Accordingly, I vehemently dissent from the

majority’s opinion.



                  Finding the grandfather’s home study was delayed because of “the

shortcomings of the DHHR,” 1 the majority focused on providing a fair outcome for the



1
    Slip op. at 14.
                                                1
grandfather. Noting that the petitioner grandparents had immediately sought custody of

their grandson upon his removal from his mother’s home, the majority concluded that it

simply “could not ignore this State’s statutory preference carved out for grandparents.”

Slip op. at 20. While it is certainly unfortunate that the grandfather had to wait more than

a year for his home study to be completed, it was not this Court’s task to render a just result

for him, even if the DHHR was responsible for the delay. 2 Rather, it was this Court’s duty

to determine whether the circuit court’s placement decision was in the best interests of J.P.

regardless of the grandparent preference.



              This Court has long recognized that “the preference for grandparent

placement may be overcome . . . where the record viewed in its entirety establishe[s] that

such placement is not in the best interests of the child.” Syl. Pt. 4, in part, Napoleon S. v.

Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005). More recently, this Court reiterated that

the grandparent preference “is just that—a preference” and “emphasized[] the child’s best

interest remains paramount.” In re K.E., 240 W.Va. 220, 225, 809 S.E.2d 531, 536 (2018).

Indeed,

                     [b]y specifying in West Virginia Code § 49-3-1(a)(3)
              [now W. Va. Code § 49-4-114(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

       2
        As a former circuit court judge, I am quite familiar with the ICPC process. While
the record here suggests that the DHHR could have taken action to speed up the process,
my own experiences tell me that invariably there will be a lengthy delay in the proceedings
when an out-of-state home study must be completed. Even a phone call from a judge
inquiring about the status of such a home study often goes unanswered.
                                              2
              Human Resources and circuit courts of the best interests of the
              child, given all circumstances of the case.

Napoleon S., 217 W.Va. at 256, 617 S.E.2d at 803; syl. pt. 5. Accordingly,

              regardless of whether there exists a placement preference that
              applies to the facts of th[e] case, any preference always is
              tempered by a consideration of the children’s best interests. . .
              . In other words, if allegiance to a preferential placement does
              not promote the children’s best interests, such preference must
              yield to the placement that is most beneficial to the children.

In re K.L. 241 W.Va. 546, 557, 826 S.E.2d 671, 682 (2019). Therefore,

                     adoption by a child’s grandparents is permitted only if
              such adoptive placement serves the child’s best interests. If,
              upon a thorough review of the entire record, the circuit court
              believes that a grandparental adoption is not in the subject
              child’s best interests, it is not obligated to prefer the
              grandparents over another, alternative placement that does
              serve the child’s best interests.

In re Elizabeth F., 225 W.Va. 780, 787, 696 S.E.2d 296, 303 (2010).


              In this case, the circuit court heard testimony from several witnesses,

including an expert psychologist, Dr. James Behrmann, over the course of a three-day

placement hearing and concluded that affording custody of J.P. to his grandfather was not

in the child’s best interests. By ignoring critical testimony provided by Dr. Behrmann and

taking statements he made during the placement hearing out of context, the majority found

that the circuit court erred when it ruled that it was in J.P.’s best interests to remain with

his foster parents and be adopted by them. The majority reasoned that because Dr.

Behrmann stated that both homes were “appropriate placements for the child,” the

grandparent preference dictated that the grandfather be granted custody of J.P. Unlike the

                                              3
circuit court, however, the majority failed to comprehend crucial testimony from Dr.

Behrmann regarding the effect that removing J.P. from the custody of his foster parents

would have on his ability to form attachments with people in his life, including his

grandparents.



                During his testimony, Dr. Behrmann explained that

                       reactive detachment means I am never able to really
                connect deeply with someone. So my close relationships, my
                close friends, my marriages, my parenting of my own children
                becomes very difficult, becomes disruptive because I don’t
                know, I’m not good at deep empathy and connecting[.]

                       ....

                       [W]ith good attachment we have a number of positive
                correlates such as grades in school, solid friendships,
                responsiveness to authority, good parenting as an adult, a
                number of things all match when you have good attachment.
                The outcomes from that are much superior.

Dr. Behrmann testified that J.P. had a “decent and growing” attachment to his foster

parents, particularly his foster dad who had been a stay-at-home parent for J.P. since his

placement with them. J.P.’s attachment to his grandfather was described by Dr. Behrmann

to be “less than with the [foster parents.]” Critically, Dr. Behrmann testified that J.P was

“at great risk” for reactive detachment disorder because of the different placements and

“disruptions with his mom” during the first year of his life. He explained:

                       So [J.P.] is still much more focused on how you help
                him rather than just liking the relationship and enjoying being
                in it.



                                              4
                      That’s a real sign of risk of not attaching deeply. It’s,
               again, across these parenting figures across time, situations,
               home, pool, visitation center, and also matches what I know
               about his early days, that disruption is not having a consistent
               organized, caring caretaker is predictive of attachment
               disorder. So his history matches that risk factor as well as
               matches what I saw.

                      Because of that it’s very risky for him to have to form
               another attachment again. The more you do this at the later age
               the greater risk for not attaching. He’s at the cusp of that.

                      Research shows that at two [years of age] your risk goes
               up substantially in terms of not deeply attaching if you haven’t
               formed that already. At three [J.P.’s age at that time] your way
               at the outside end of the risks. The risk percentage goes up
               much more in study after study.

                       So psychologically from my perspective I think there’s
               a real risk at this point of moving him again.

While Dr. Behrmann noted that he was not making a custody recommendation because he

had not examined the parties’ homes and had not spent a sufficient amount of time with

them, he opined to a reasonable degree of certainty that “there is a substantial risk of [J.P.’s]

inability to attach deeply if he’s moved again from the place [the foster parents’ home] he’s

attached.” 3


               “[T]he primary goal in cases involving abuse and neglect . . . must be the

health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479



       3
         Dr. Behrmann was only asked to complete a bonding assessment. He visited and observed
J.P. with the foster parents in their home. He also observed J.P. visiting with his grandparents and
cousins at a hotel pool. Notably, the grandfather’s daughter (J.P.’s aunt) who lives in the
grandfather’s home and who will be one of J.P.’s primary caretakers when he is placed with them
did not attend this visitation.
                                                 5
S.E.2d 589 (1996). J.P. has now spent more than half of his life with his foster parents

who have provided the only secure and stable home J.P. has ever known. Because of the

abuse he suffered during the first year of his life, J.P. is a very fragile child from a

psychological perspective. There was undisputed evidence presented during the placement

hearing that J.P. has a substantial risk of developing reactive detachment disorder if he is

removed from his foster family. There was also undisputed evidence that J.P. has a

growing attachment to his foster family. J.P.’s bond with his foster family was not only

evident from Dr. Behrmann’s testimony, but from that of J.P.’s foster father as well. In

that regard, J.P.’s foster father testified that when J.P. was first placed with them,

communication with him was difficult, and he had frequent, intense tantrums. 4            When

asked to describe J.P. after he had been in their home for thirteen months, J.P.’s foster

father testified,

                      [J.P.] we call the best hugger in the house. He’s always
               smiling. He’s fun. He has a great time with his [foster]
               siblings. He has a great time playing outside.

                       Since we can communicate with his speech, we are able
               to really work with him and he’s really becoming his own.

It is clear to me, as it was to the circuit court, that for J.P.’s health and welfare, he should

remain with his foster parents.




       4
          The record indicates that J.P. participated in the Birth to Three Program. When he was
first evaluated in August 2018, he had “at least a forty-percent delay in communication skills.”
                                               6
              While I sympathize with the grandfather and understand his desire to raise

his grandson, the decision regarding J.P.’s permanent placement should have been based

upon the circumstances that existed at the time of the placement hearing, not at the time

when the grandparent petitioners first sought custody of J.P. Although I believe that J.P.

should be adopted by his foster parents, by no means do I think that the grandparent

petitioners should have been excluded from J.P.’s life. Our law allows for continued

visitation and communication between third parties and an adopted child so long as there

is “mutual assent between [the] adoptive parent(s) and [the] third party” and such an

agreement is made part of the final adoption order. Syl. Pt. 5, in part, Murrell B. v.

Clarence R., 242 W.Va. 358, 836 S.E.2d 9 (2019); see also W.Va. Code § 48-22-704(e)

(2001). The record here indicates that J.P.’s foster parents were amenable to such an

agreement with the petitioner grandparents, and, in fact, the circuit court ordered the parties

to discuss the terms of such future visitations so that the agreement could be made a part

of the final adoption order. 5



              If the majority had actually taken the time to carefully review the record in

this case and then applied our long established law with respect to custody matters, it would

have concluded, as I did, that the circuit court chose the best result for J.P.—adoption by


       5
        The record submitted to this Court contains an agreement proposed by the foster
parents that provided for visits between J.P and his grandparents at least seven times a year,
two of which would have been overnight stays.




                                              7
his foster parents and continued visitation and communication with his grandparents.

Instead, the majority was so displeased with the DHHR’s conduct that it ignored both the

evidence in this case and the law. The majority simply decided it was going to punish the

DHHR by ripping this young child from the only stable and secure home he has ever

known.



              I am extremely sad for J.P. that the majority has disregarded what is clearly

in his best interests, and I am deeply troubled by the precedent that this decision creates.

Accordingly, I respectfully dissent from the majority’s opinion in this case.




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