Lisa Davis Clark
Gibson, Lefler & Associates
Princeton, West Virginia
Attorney for the Appellant,
Patricia J.
Ronald Keith Flinchum
Guardian Ad Litem
Welch, West Virginia
Attorney for the Children,
Edward B., John David F., David Dewane F.,
George Franklin F., and Benny Jay J.
Sidney H. Bell
Prosecuting Attorney
Welch, West Virginia
Attorney for the West Virginia Department
of Health and Human Resources
Gloria M. Stephens
Welch, West Virginia
Attorney for Edward B., Sr.
Ronald D. Hassan
Welch, West Virginia
Attorney for David D. F.
Kevin A. Wade
Welch, West Virginia
Attorney for Charles C.
JUSTICE ALBRIGHT delivered the Opinion of the Court.
1.
“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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
2.
“In the law concerning
custody of minor children, no rule is more firmly established than that the
right of a natural parent to the custody of his or her infant child is paramount
to that of any other person; it is a fundamental personal liberty protected
and guaranteed by the Due Process Clauses of the West Virginia and United
States Constitutions.” Syl. Pt. 1, In
re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).
4.
Where a trial court order terminating parental rights merely declares that
there is no reasonable likelihood that a parent can eliminate the conditions
of neglect, without explicitly stating factual findings in the order or on
the record supporting such conclusion, and fails to state statutory findings
required by West Virginia Code § 49-6-5(a)(6) (1998) (Repl. Vol. 2001)
on the record or in the order, the order is inadequate. Likewise, where a
trial court removes a child from the custody of an allegedly neglectful parent
and places exclusive custody in another individual, the court must adhere
to the mandates of West Virginia Code § 49-6-5(a)(5), and failure to
include statutorily required findings in the order or on the record renders
the order inadequate.
Albright, Justice:
5.
Where it appears from the
record that the process established by the Rules of Procedure for Child Abuse
and Neglect Proceedings and related statutes for the disposition of cases
involving children adjudicated to be abused or neglected has been substantially
disregarded or frustrated, the resulting order of disposition will be vacated
and the case remanded for compliance with that process and entry of an appropriate
dispositional order.
6. “In formulating the
improvement period and family case plans, courts and social service workers
should cooperate to provide a workable approach for the resolution of family
problems which have prevented the child or children from receiving appropriate
care from their parents. The formulation of the improvement period and family
case plans should therefore be a consolidated, multi-disciplinary effort among
the court system, the parents, attorneys, social service agencies, and any other
helping personnel involved in assisting the family.” Syl. Pt. 4, In
re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
This
is an appeal by Patricia J.
(See footnote 1) (hereinafter “Appellant”
or “mother”) from an order of the Circuit Court of McDowell County
terminating the Appellant's parental rights to her son Benny J., transferring
exclusive legal and physical custody of three other children to their father,
and transferring legal and physical custody of a fifth child to the Department
of Health and Human Resources (hereinafter “DHHR”). The Appellant
contends, inter alia, that the lower court erred by failing to make specific
findings of fact required by West Virginia Code §§ 49-6-5(a)(5) and
49-6-5(a)(6) (1998) (Repl. Vol. 2001) when transferring custody or terminating
parental rights as a result of a finding of abuse or neglect.
(See footnote 2) Based
upon our review of the record and the arguments of counsel, we reverse the
decision of the lower court and remand this matter for further proceedings
consistent with this opinion.
On
February 29, 2000, child protective services worker John Propst
(See footnote 4)
visited the home for approximately twenty minutes and concluded that
the Appellant's eight-year-old son John required medical attention for a cut
on his face, incurred in a fall on a railroad tie. The Appellant had treated
the child's injury, but had not sought medical attention for the injury.
(See footnote 5)
Mr. Propst also noticed that the home was dirty and that furniture and
bags of clothing cluttered the rooms of the mobile home. As had been the case
during the time Mr. Propst had been working with the family, there was no
running water coming into the home. There was, however, a water line to the
front door of the mobile home where the mother obtained water for flushing
the toilet and other purposes. A
neighbor had assisted the Appellant in obtaining a water line to the front
door of the home.
Incident to filing the petition,
an order was entered granting emergency powers to the DHHR, and the children
were taken to physicians for examinations under the authority of that order.
All children were healthy, except two-month old Benny, who had low weight
and was diagnosed with failure to thrive. He was admitted for hospitalization
on March 1, 2000, and discharged to foster care on March 4, 2000.
(See footnote 6)
The day after that visit, March
1, 2000, Mr. Propst, acting for the DHHR, filed a petition against the Appellant,
alleging that she had neglected her children. The petition alleged that the
mobile home was dirty and had no running water. In the petition, Mr. Propst
explained that the Appellant had cursed him and “the DHHR for not being
there when needed and sticking our noses up her ass when we didn't need to.”
Mr. Propst further alleged in the petition that the Appellant had failed to
keep medical appointments and that a truancy warrant was pending for her failure
to send the children to school. No allegations of abuse were filed, and the
petition stated that the DHHR did not believe that there existed any imminent
danger to the children.
The lower court conducted a
hearing for further temporary relief on March 9, 2000, and placed the children
in the legal custody of the DHHR. Edward, John, David, and George were placed
in the physical custody of Mr. David F., the biological father of John, David,
and George. The infant, Benny, was placed with the State due to his special
medical needs. The Appellant was granted visitation with the children.
(See footnote 7)
An amended petition was filed on April 7, 2000, alleging that Benny suffered
from failure to thrive and further alleging that the infant suffered a rash
where the Appellant had taped a diaper to his skin.
An adjudicatory hearing was
held on May 24, 2000, and testimony was taken. Mr. Propst testified concerning
the children's medical conditions, school attendance, and missed medical appointments.
The lower court asked Mr. Propst why the petition had been filed at this time
“[i]f this has been going on in some way, shape or form involving this
whole family for about a year or so. . . .” In response, Mr. Propst raised
the issue of lice and nits, an issue which does not appear in the petition or
amended petition, and explained as follows: “Mainly, the absences of the
children from school and the fact that they were coming to school every day with lice, the teachers were sending them home.”
(See footnote 8)
The lower court then suggested as follows:
Well,
you've been in and out of the home, as well as the others, for, you know,
at least twenty times and so forth for a year, did anyone give her any direction
or supervision or any help in, you know, getting rid of the mites. . . . [D]id
the Department or anyone else involved do something to find her a better place
or a cleaner place or to bring someone in if she was unable to do it. . .
.
Mr. Propst responded: “No, sir, we didn't bring anybody in to do that.
I was informed that they had a vacuum cleaner, and they could've vacuumed.”
During
that adjudicatory hearing, the Appellant testified that she had extended running
water from the outside into the home. She
explained that when Mr.
Propst told her to get the water fixed, she
was able to obtain running water in the home by paying a neighbor $146.00
to repair the mobile home's broken water pipes after the landlord, residing
in Virginia, failed to respond
to the Appellant's request for running water and some type of heat other than
the coal furnace in the home.
She also testified about
her bond with the children, as follows:
When questioned regarding
the family income, the Appellant explained that she received $460.00 per month
on behalf of David, based upon his seizure disability, and that she received
$312.00 per month in benefits and $148.00 per month in food stamps. Mr. F.
also allegedly paid the Appellant $50.00 in support monthly. The record does
not disclose how much, if any, of that income ended upon the entry of the
temporary relief order on March 9, 2000, transferring custody to persons other
than the Appellant. Having conducted this adjudicatory
hearing on May 24, 2000, the lower court entered the resulting order on June
26, 2000,
(See footnote 9) finding that the Appellant had neglected
the children. Specifically, the lower court found as follows:
[The Appellant] failed to provide
a safe home for the children, who lived with her in two rooms of a mobile home
with dangerous electrical wiring and without hot or cold running water inside
the home. She further failed to send the children to school on a regular basis,
resulting in her prosecution for truancy, and she failed to seek readily available
medical treatment for one of the children even though he had suffered a serious
injury to his face that should have received immediate, emergency medical care.
Just
that I love my children. They are my life. Nobody can live without air, and
I can't live without them. They're the reason I go on. They're the reason I struggle. Sure, I had to pack that
water, and it was hard on me, but I didn't make it harder for them. I still
kept them clean and stuff. I tried.
When the lower court asked why she had not demanded further assistance with
running water from the DHHR, the Appellant responded: “It would be kind
of hard to demand that the Department . . . do something for me when - - I
mean, they say I - - I miss appointments and things. . . .”
With specific regard to the infant Benny, the court found as follows:
The
Court additionally finds that . . . [the Appellant] seriously neglected the
basic needs of infant respondent Benny . . . [J.] by failing to provide adequate
nourishment and emotional support, resulting in the infant being diagnosed by
a pediatrician with “failure to thrive” and anemia. Said child had
gained only a few ounces in the two months since his birth on December 27, 1999.
. . .
The lower court ordered “that the parents continue to have reasonable visitation,
contact and communication with the infants under the Department's supervision,
but there shall be no forced visitation.”
On June 14, 2000, Mr. Propst
provided a child youth and family case plan recommending reunification of the
family as the permanency plan,
(See footnote 10) with an estimated achievement
date of December 12, 2000. There is no indication in the plan, as filed, regarding
whether it was preceded by the convening of a multi-disciplinary treatment team,
as required by Rule 51 of the West Virginia Rules of Procedure For Child Abuse
and Neglect Proceedings, nor does the record contain any order of the court
convening such a team. The plan identified desired outcomes for the Appellant
as follows: problem solving, self- sufficiency, parenting knowledge/skill, and
learning the importance of scheduling and being in charge of every day life.
Weekly visits by the Paul Miller Home-Based Services were recommended.
(See footnote 11)
The lower court refused to delay its disposition for the requested four-week period, denied the Appellant's request for an improvement period without express findings of fact or conclusions of law, and proceeded to the following dispositions. The court placed exclusive physical and legal custody of John, David, and George with their father, David F. The custody of Edward, whose location was unknown due to the fact that he ran away from Mr. F.'s home, was placed in the DHHR until his eighteenth birthday. With regard to these children, the dispositional order recites that liberal visitation is to be allowed the mother. (See footnote 12)
With regard to the infant
Benny, the lower court found, in the July 10, 2000, dispositional order, that
“there is no reasonable likelihood that . . . [the Appellant] can eliminate
the conditions which led to the neglect of the child.” Consequently,
the lower court terminated
the Appellant's parental rights to Benny and ordered that he be placed for adoption. The lower court further
found that Benny's biological father, Charles C., had abandoned his rights
to Benny. The court provided that, upon application of the Appellant at some
later date,
the Appellant
might secure visitation rights with Benny to be exercised under the supervision
of the DHHR.
The
lower court, through its dispositional order, implicitly rejected the case
and permanency plan submitted by the DHHR. Despite
the clear requirements of West Virginia Code §§ 49-6-5 and -5a,
as well as Rules 36 and 39 of the Rules of Procedure for Child Abuse and Neglect
Proceedings, the dispositional
order did not require the DHHR to submit a revised plan, a permanency plan,
or to conduct a permanent placement review conference.
West
Virginia Code § 49-6-5(a)(6) enumerates the standards to which courts
must adhere in deciding whether parental rights may be terminated. The statute
provides that the court must include specific findings within the dispositional
order, as follows:
Under West Virginia Code
§ 49-6-5(a)(5), a trial court may commit the child or children to “a
suitable person who may be appointed guardian by the court” where the
court finds “that the abusing parent or parents are presently unwilling
or unable to provide adequately for the child's needs.” Id. When
this manner of disposition is utilized, as it was for Edward, John, David, and George in this case, the statute provides the
following guidance for the court:
Rule 36 of the Rules of
Procedure for Child Abuse and Neglect Proceedings has supplemented these statutory
requirements by specifying that there shall be findings of fact and conclusions
of law set forth in writing or on the record and that the dispositional order
shall fix the date and time of the first permanent placement review conference
and may include the following information, all of which was omitted from the
lower court's order in this case: The lower court's findings
regarding the basis for the termination of parental rights with regard to
Benny consisted of the following: “It is further ORDERED that the parental
rights of . . . [the Appellant] with respect to infant Benny . . . [J.] be
permanently terminated due to this Court's finding that there is no reasonable
likelihood that . . . [the Appellant] can eliminate the conditions which led
to the neglect of the child.” Similarly, the lower court
failed to make specific findings in its order with regard to the disposition
of Edward, John, David, and George. The court's findings with regard to those
four children consisted of the following: As it pertains to Benny,
the dispositional order fails to state, as required by statute in termination
of parental rights cases, why reunification is not in the best interests of
Benny, whether the DHHR made reasonable efforts to “preserve the family
and to prevent the placement or to eliminate the need for removing the child
from the child's home,” and whether the DHHR “made reasonable efforts
to preserve and reunify the family including a description of what efforts
were made or that such efforts were unreasonable due to specific circumstances.”
W. Va. Code § 49-6-5(a)(6). With regard to the other four children, the
order fails to state why reunification with their mother is contrary to their
best interests and whether the DHHR has made reasonable efforts to preserve
the family and to prevent the need for removal. See W. Va. Code §
49-6-5(a)(5).
Upon
a finding that there is no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future, and when
necessary for the welfare of the child, terminate the parental, custodial
or guardianship rights and/or responsibilities of the abusing parent and commit
the child to the permanent sole custody of the nonabusing parent, if there
be one, or, if not, to either the permanent guardianship of the department
or a licensed child welfare agency. If the court shall so find, then in fixing
its dispositional order, the court shall consider the following factors:
(1) The child's need for continuity of care and caretakers; (2) the amount
of time required for the child to be integrated into a stable and permanent
home environment; and (3) other factors as the court considers necessary and
proper. Notwithstanding any other provision of this article, the court shall
give consideration to the wishes of a child fourteen years of age or older
or otherwise of an age of discretion as determined by the court, regarding
the permanent termination of parental rights. No adoption of a child shall
take place until all proceedings for termination of parental rights under
this article and appeals thereof are final. In determining whether or not parental
rights should be terminated, the court shall consider the efforts made by
the department to provide remedial and reunification services to the parent.
The court order shall state: (1) That continuation in the home is
not in the best interest of the child and why; (2) why reunification is not
in the best interests of the child; (3) whether or not the department made
reasonable efforts, with the child's health and safety being the paramount
concern, to preserve the family and to prevent the placement or to eliminate
the need for removing the child from the child's home and to make it possible
for the child to safely return home, or that the emergency situation made
such efforts unreasonable or impossible; and (4) whether or not the department
made reasonable efforts to preserve and reunify the family including a description
of what efforts were made or that such efforts were unreasonable due to specific
circumstances.
W. Va. Code § 49-6-5(a)(6) (emphasis
supplied).
(See footnote 16)
The court order
shall state: (1) That continuation in the home is contrary to the best
interests of the child and why; (2) whether or not the department has made
reasonable efforts, with the child's health and safety being the paramount
concern, to preserve the family and to prevent or eliminate the need for;
removing the child from the child's home and to make it possible for the child
to safely return home; what efforts were made or that the emergency situation
made such efforts unreasonable or impossible; and (3) the specific circumstances
of the situation which made such efforts unreasonable if services were not
offered by the department.
W. Va. Code § 49-6-5(a)(5) (emphasis supplied).
(1) Terms of visitation;
(2) Services to be provided
to the child and family;
(3) Restraining orders controlling
the conduct of any party who is likely to frustrate the disposition order;
(4) Actions to be taken by
the parent(s) to correct the identified problems;
(5) Conditions regarding the
child's placement, including steps to meet the child's special needs while in
placement;
(6) If the child is separated
from siblings, steps to unite them and/or to maintain regular contact during
the separation if it is in the best interest of each child; and
(7) Terms and conditions of
the family case plan or the child's case plan.
W. Va. R. P. Child Abuse & Neglect Proc. 36(c).
Upon
due consideration of the Department's recommendations, it is ORDERED that
the full and exclusive legal and physical custody of infants John . . . [F.],
David . . . [F.], and George . . . [F.] be transferred and awarded to their
biological parent, David . . . [F.]. [The Appellant] is granted reasonable
and liberal contact, communication and visitation with those children.
It
is ORDERED that the full and exclusive legal and physical custody of infant
Edward . . . [B.] be awarded to the West Virginia Department of Health and Human Resources until he becomes
18 years of age.
In
the law concerning custody of minor children, no rule is more firmly established
than that the right of a natural parent to the custody of his or her infant
child is paramount to that of any other person; it is a fundamental personal
liberty protected and guaranteed by the Due Process Clauses of the West Virginia
and United States Constitutions.
Id. at 225, 207 S.E.2d at 130-31; see
also Syl. Pt. 1, State
ex rel. W. Va. Dep't of Human Servs. v. Cheryl M., 177 W. Va. 688, 356
S.E.2d 181 (1987).
In
clear recognition of these critical interests, and by steadfastly adhering to
the polar star test of looking to the best interests of our children and their
right to healthy, happy productive lives, this Court, over a substantial period
of time, has expressed an unwavering interest in providing comprehensive and
fair procedures for the consideration of abuse and neglect cases. As this most
important area of the law has expanded, this Court has insisted that the directives
of applicable rules and legislative enactments must be carefully identified,
respected, and incorporated within our court system. The Rules of Procedure
for Child Abuse and Neglect Proceedings and the related statutes detailing fair,
prompt, and thorough procedures for child abuse and neglect cases are not mere
general guidance; rather, they are stated in mandatory terms and vest carefully
described and circumscribed discretion in our courts, intended to protect the due process rights of the parents as well
as the rights of the innocent children. Procedurally, these various
directives also provide the necessary framework for appellate review of a
circuit court's action. Where a lower court has not shown compliance with
these requirements in a final order, and such cannot be readily gleaned by
this Court from the record, the laudable and indispensable goal of proper
appellate review is thwarted. As the Supreme Court of Wisconsin emphasized
in In re T.R.M., 303 N.W.2d 581 (Wis. 1981), “[a]dequate findings
must be made in order to protect the rights of litigants and to facilitate
review of the record by an appellate court.” Id. at 583. The Wisconsin
court also emphasized that the trial court's “findings are also deficient
with respect to a lack of a specific and formal determination regarding the
best interests of . . . [the child]” and noted that the trial court was
“under an obligation to make findings with regard to the best interests
of the child in relation to the evidence adduced.” Id; see
also In re Welfare of M.M., 452 N.W.2d 236 (Minn. 1990) (holding trial
court's findings of fact inadequate to facilitate effective appellate review
and reversing decision after independent review of record). In In re Adoption/Guardianship
No. 87A262, 590 A.2d 165 (Md. 1991), the Maryland court explained as follows:
[The] legislative requirement
of consideration of the factors itemized in [the statute] demonstrates the
intent that the utmost caution should be exercised in any decision to terminate parental rights.
In cases where parental rights are terminated, it is important that each factor
be addressed specifically not only to demonstrate that all factors were considered
but also to provide a record for review of this drastic measure.
Id. at 168. “Clear and complete findings by the trial judge are
essential to enable us properly to exercise and not exceed our powers of review.”
Nicpon v. Nicpon, 157 N.W.2d 464, 467 (Mich. Ct. App. 1968); see
In re Denzel A., 733 A.2d 298 (Conn. App. Ct. 1999) (holding that trial
court mandated to consider and make written findings of fact regarding statutory
factors in dispositional phase of termination of parental rights hearing).
Furthermore, Rules 29 to 31,
34, and 36 to 42 of the Rules of Procedure for Child Abuse and Neglect Proceedings
and the related statutes provide an orderly but prompt process for bringing
about a full consideration of the best interests of children adjudicated to
be neglected or abused and the proper disposition of such cases. The Rules provide
a full opportunity for hearing, judicial consideration of the case plan and
its possible revision, and timely disposition of the case under the provisions
of West Virginia Code § 49-6-5, with adequate findings in the order or
on the record. The Rules further provide stringent guidelines and time limitations
for any improvement period granted and timely follow-up regarding the efficacy
of any plan for the permanent placement of the child or children outside the
parental home.
Although
the family case plan was formulated and submitted to the lower court prior
to the dispositional hearing, the strategies recommended in the plan were
never employed to address the family's problems. Similar strategies may have
been utilized in previous contact between the DHHR and the Appellant, but
the forms of outreach referenced in the plan were not attempted. Additionally,
the family case plan does not appear to adequately address one of the predominant
obstacles facing the Appellant, her alleged lack of financial resources. It
does suggest the use of Paul Miller Home-Based Services for weekly monitoring
and guidance in instructing the Appellant in scheduling her normal routines.
Yet it does not otherwise appear to identify precise methods by which the
Appellant might improve her parenting skills, and many desired outcomes are
stated in abstract terms, such as “problem solving,” “self-sufficiency,”
and “parenting knowledge/skill.”
Moreover, it appears that the
court below rejected the case plan during the dispositional hearing after the
father of three of the children objected and asked the court to proceed to terminate
the Appellant's parental rights, contrary to the child case plan filed by the
DHHR, and the court proceeded to terminate Appellant's parental rights. In contrast
to this procedure, Rule 34 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings requires the court to rule by order on the case
plan and, if the court rejects the plan, order the DHHR to submit a revised
plan within thirty days and schedule a new dispositional hearing within forty-five
days. In violation of Rule 36, the lower court failed to set the date and time
for the first permanency review conference.
Based
upon the lower court's numerous failures to comply with the statutory requirements
and the procedures required by the Rules of Procedure for Child Abuse and
Neglect Proceedings, this matter must be reversed and remanded. As promptly
as may appear feasible to the trial court, this matter shall be brought on
for the development of an appropriate family and child case plan, including
the utilization of a multidisciplinary team;
(See footnote 17)
a determination of
the propriety of an improvement period; subsequent improvement period hearings, if an improvement period
is granted;
a full dispositional
hearing and decision; and such permanency conferences, plans, hearings, foster
care reviews, and status conferences as the lower court concludes will bring
this matter to prompt closure, with due regard to the Rules of Procedure For
Child Abuse and Neglect Proceedings.
In State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996), this Court explained its position of improvements periods, as follows:
“The goal of an improvement period is to facilitate the reunification of families whenever that reunification is in the best interests of the children involved.” Id. at 258, 470 S.E.2d at 212. We recognized that “[b]oth the statute and our case law grant trial courts considerable flexibility in developing meaningful improvement periods designed to address the myriad possible problems causing abuse and neglect.” Id. at 258, 470 S.E.2d at 212; see also In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000). Additional guidance is found in syllabus point four of In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991):rights to continued association; (See footnote 23) and (5) evaluation of propriety of the termination of Charles C.'s parental rights. (See footnote 24)
Based on the foregoing, we hereby
reverse the July 10, 2000, decision of the Circuit Court of McDowell County
and remand this matter for further proceedings and evaluation consistent with
this opinion. Based upon the time problems discussed earlier, the mandate herein
shall issue forthwith. While this Court is cognizant that thorough evaluation
on remand may consume significant time for the honorable judge to whom this
matter will be assigned, this Court respectfully recommends that the lower court
make all reasonable efforts to promptly conclude these proceedings, to the end
that these children may enjoy a stable and certain future as early as is practicable.
The urgency of the lower court's further consideration is underscored by the
seriousness of these matters, as well as the fact that considerable delays,
over which no party had control, were encountered in the proceedings.
When
parental rights are terminated due to neglect or abuse, the circuit court
may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child.
Among other things, the circuit court should consider whether a close emotional
bond has been established between parent and child and the child's wishes,
if he or she is of appropriate maturity to make such request. The evidence
must indicate that such visitation or continued contact would not be detrimental
to the child's well being and would be in the child's best interest.
As we explained in In re Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995),
a court should “inquire into the relationship . . . [the child] has formed
with his foster parents and, if it is in his best interests, fashion a plan
for continued association between the foster parents and the child.”
Id. at 638, 461 S.E.2d at 144.
Footnote: 24