                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                     FILED
In re K.S.                                                                        June 12, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 19-0080 (Randolph County 16-JA-122)                                              OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioners Aunt S.N. and Uncle R.N., by counsel Morris C. Davis, appeal the Circuit Court
of Randolph County’s December 19, 2018, order denying them permanent placement of K.S.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem,
Heather M. Weese, filed a response on behalf of the child also in support of the circuit court’s
order. On appeal, petitioners argue that the circuit court erred in finding that it was in the child’s
best interests to be placed with the foster parents.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

         In 2016, the DHHR initiated child abuse and neglect proceedings against K.S.’s parents
after it received disclosures of sexual abuse by the father and substance abuse by the mother. The
parents were eventually adjudicated as abusing parents. The mother relinquished her parental
rights in September of 2017, and the father’s parental rights were involuntarily terminated shortly
after in November of 2017. Thereafter, the circuit court had to determine permanent placement for
the child, K.S.

       Throughout the entirety of the proceedings, K.S.’s half-sister, K.H., was placed in a foster
home, while K.S. went through multiple placements. K.S. was initially placed in the home of a
maternal uncle, but was removed in January of 2018 due to allegations of the home being unfit.
K.S. was then placed in a kinship placement. In April of 2018, petitioners, K.S.’s aunt and uncle,


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).


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moved the circuit court to intervene in the proceedings and requested placement of the child.2 The
circuit court granted petitioners’ motion to intervene. At some point thereafter, K.S. was placed in
the same foster home as his half-sister.

        In October of 2018, the circuit court held a final permanency hearing in regard to K.S. The
DHHR requested that the circuit court grant placement of K.S. to the foster parents so that the
siblings could be adopted together. The DHHR alleged that this placement was in the child’s best
interests and that placement with petitioners was not recommended due to aggravated
circumstances. In support, the DHHR presented the testimony of a Child Protective Services
(“CPS”) worker, who reported that petitioner S.N. previously had her parental rights to an older
child terminated around 1996. Moreover, the worker raised concerns over subsequent referrals and
allegations regarding petitioner S.N.’s knowledge of, and possible participation in, the sexual
abuse of other children by her ex-husband. However, petitioner S.N. testified that she did not have
knowledge of, or participate in, the sexual abuse perpetrated by her ex-husband. Further,
petitioners testified that they played an important role in K.S.’s life prior to the initiation of the
underlying proceedings, including caring for the child, taking him out to eat, and taking him to do
fun activities. After hearing evidence, the circuit court determined that placement with the foster
parents was in K.S.’s best interests so that he could maintain a relationship with K.H. The circuit
court based this decision on the fact that the DHHR had not approved petitioners’ home and
petitioner S.N.’s prior termination of parental rights. While the circuit court acknowledged that the
prior termination of parental rights occurred nearly twenty-two years ago, it stated that “such things
are not necessarily remedied over time” and expressed concern over whether petitioner S.N. could
protect the child if placed in her care given the evidence presented. It is from the December 19,
2018, order denying them placement of K.S. that petitioners appeal.3

       The Court has previously established the following standard of review in cases such as this:

               “Although conclusions of law reached by a circuit court are subject to de
       novo review, when an action, such as an abuse and neglect case, is tried upon the
       facts without a jury, the circuit court shall make a determination based upon the
       evidence and shall make findings of fact and conclusions of law as to whether such
       child is abused or neglected. These findings shall not be set aside by a reviewing
       court unless clearly erroneous. A finding is clearly erroneous when, although there
       is evidence to support the finding, the reviewing court on the entire evidence is left
       with the definite and firm conviction that a mistake has been committed. However,
       a reviewing court may not overturn a finding simply because it would have decided
       the case differently, and it must affirm a finding if the circuit court’s account of the
       evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
       Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).



       2
           Petitioners are not the aunt and uncle of K.H. and do not request custody of this child.
       3
        The mother voluntarily relinquished her parental rights, and the father’s parental rights
were involuntarily terminated. The child was placed in a foster home with a permanency plan of
adoption therein.
                                                   2
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioners argue that the circuit court erred in finding that it was in the child’s
best interests to be placed with the foster parents. While petitioners acknowledge that West
Virginia Code § 49-4-111 establishes a statutory preference for placing siblings in the same home,
they argue that this preference “must be tempered with a best interest analysis because in custody
matters the best interests of the child are ‘paramount.’” Petitioners contend that they have played
a significant role in K.S.’s life and that petitioner S.N. has acted as a caretaker for the child at
times. Because of their connection with the child, petitioners argue that placement in their home
was in the child’s best interests and the circuit court erred in permanently placing the child with
the foster parents. We find petitioners’ arguments to be unpersuasive.

        We have previously held that “[i]n a contest involving the custody of an infant the welfare
of the child is the polar star by which the discretion of the court will be guided.” Syl. Pt. 2, State
ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948). Very recently, this Court
clarified that

       no preference is afforded to blood relatives, generally, when placing a child for
       adoption. . . . [W]e now specifically hold that only two statutory familial
       preferences applicable to the adoption of a child are recognized in this State: (1) a
       preference for adoptive placement with the child’s grandparents set forth in W. Va.
       Code § 49-4-114(a)(3) . . . and (2) a preference for placing siblings into the same
       adoptive home pursuant to W. Va. Code § 49-4-111 . . . . Apart from the grandparent
       and the sibling preferences, there does not exist an adoptive placement preference
       for a child’s blood relatives, generally.

In re K.L., -- W. Va. --, 826 S.E.2d 671, 681 (2019). However, petitioner correctly notes that such
preferences must be tempered by the best interests of the child. Indeed, “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.” Id. (citing In re Elizabeth F., 225 W. Va.
780, 787, 696 S.E.2d 296, 303 (2010)).

        Having reviewed the record, we find no error in the circuit court’s conclusion that
placement with the foster parents is in the child’s best interests. Clearly, there is a preference for
placing K.S. in the foster parents’ home given their custody of, and anticipated adoption of, the
child’s half-sibling, K.H. Accordingly, the child need only be placed elsewhere if placement with
his half-sibling is not in his best interests. However, no such evidence was submitted. Rather, the
record establishes that the children are close in age and were living together prior to the initiation
of the underlying proceedings. Following the initiation of the proceedings, K.S. was moved from
home to home until placed with the current foster family, who now wishes to adopt him and give
him a sense of permanency.

        Further, the DHHR raised serious concerns about petitioners’ ability to parent the child.
Petitioner S.N.’s parental rights to an older child were previously terminated and she was accused
of having knowledge of and participating in sexual abuse perpetrated by her ex-husband. While
no criminal charges were ever brought against petitioner S.N., the court noted that it remained

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concerned about her failure to remedy the prior conditions of abuse that led to the termination of
her parental rights. Lastly, while petitioners argue that petitioner S.N. has previously acted as
caretaker for the child and has a strong bond with him, they offered no evidence to corroborate her
self-serving testimony. Accordingly, we find that the circuit court did not abuse its discretion in
determining that placement of K.S. with the foster parents was in his best interests and that
petitioners are entitled to no relief in this regard.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 19, 2018, order is hereby affirmed.



                                                                                        Affirmed.

ISSUED: June 12, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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