Harley E. Stollings, Esq.
Summersville, West Virginia
Guardian ad Litem
Gregory W. Sproles, Esq.
Breckinridge, Davis & Sproles
Summersville, West Virginia
Attorney for Ralph & Patricia B.
Margaret L. Workman, Esq.
Margaret Workman Law
Charleston, West Virginia
Attorney for Richard & Valerie A.
Darrell V. McGraw, Jr., Esq.
Attorney General
Tanya Godfrey, Esq.
Assistant Attorney General
Charleston, West Virginia
and
Keith W. McMillion, Esq.
Prosecuting Attorney of Nicholas County
Kelly Hamon, Esq.
Assistant Prosecuting Attorney of Nicholas County
Summersville, West Virginia
Attorneys for WV Dept. of H&HR
JUSTICE MAYNARD delivered the Opinion of the Court.
1. “In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the circuit
court's underlying factual findings under a clearly erroneous standard. Questions of law are
subject to a de novo review.” Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201
W.Va. 108, 492 S.E.2d 167 (1997).
2.
“In . . . custody matters, we have traditionally held paramount the best
interests of the child.” Syllabus Point 5, in part, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d
193 (1996).
3. “In cases where there is a termination of parental rights, the circuit court
should consider whether continued association with siblings in other placements is in the
child's best interests, and if such continued association is in such child's best interests, the
court should enter an appropriate order to preserve the rights of siblings to continued
contact.” Syllabus Point 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).
4. W.Va. Code § 49-2-14(e) (1995) provides for a “sibling preference”
wherein the West Virginia Department of Health and Human Resources is to place a child
who is in the department's custody with the foster or adoptive parent(s) of the child's sibling
or siblings, where the foster or adoptive parents seek the care and custody of the child, and
the department determines (1) the fitness of the persons seeking to enter into a foster care or
adoption arrangement which would unite or reunite the siblings, and (2) placement of the
child with his or her siblings is in the best interests of the children. In any proceeding
brought by the department to maintain separation of siblings, such separation may be ordered
only if the circuit court determines that clear and convincing evidence supports the
department's determination. Upon review by the circuit court of the department's
determination to unite a child with his or her siblings, such determination shall be
disregarded only where the circuit court finds, by clear and convincing evidence, that the
persons with whom the department seeks to place the child are unfit or that placement of the
child with his or her siblings is not in the best interests of one or all of the children.
5. “Questions relating to . . . custody of the children are within the sound
discretion of the court and its action with respect to such matters will not be disturbed on
appeal unless it clearly appears that such discretion has been abused.” Syllabus, Nichols v.
Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).
Maynard, Justice:
This is a disputed adoption case. The Circuit Court of Nicholas County
awarded the infant, Shanee Carol B.,See footnote 1
1
to her paternal aunt and uncle, Ralph and Patricia B.,
the appellees. The infant's maternal aunt and uncle, Richard and Valerie A., now appeal this
ruling. For the reasons stated below, we reverse.
In September, 2000, Eric and Krissa B., the biological parents of Shanee Carol
B. (“Shanee”), born on July 16, 1998, relinquished their parental rights to Shanee after a
finding of neglect. Subsequently, Ralph and Patricia B. (“the Bs”), the paternal aunt and
uncle of Shanee, appellees herein, sought to adopt her. The appellants, Richard and Valerie
A. (“the As”), Shanee's maternal aunt and uncle, also sought to adopt her. Previously,
Richard and Valerie A. adopted Shanee's siblings, Eric, born on January 1, 1996, and
Shaquilla, born on January 23, 1993, after the children's biological parents relinquished their
parental rights to these children. Shanee has been living with Richard and Valerie A. since
May 2000, when she was temporarily placed there by the West Virginia Department of
Health and Human Resources (“DHHR”).
The Circuit Court of Nicholas County held several hearings to determine the
ultimate placement of Shanee. During one of these hearings, Shanee's Child Protective
Services Worker from the DHHR testified that Shanee should be placed with Richard and
Valerie A. This recommendation was based in large part on the “sibling preference” found
in W.Va. Code § 49-2-14(e), and on the psychological profiles of the prospective parents.
The guardian ad litem recommended that Shanee be placed with Ralph and Patricia B.
Admitted into evidence were the psychological profiles performed by Stephen L. O'Keefe,
Ph.D., and his letter to the judge in which he recommended shared parenting between the
parties. Also, Dr. O'Keefe, who performed the psychological profiles on both sets of
prospective parents, testified that, although both couples are appropriate for the placement
of Shanee, he recommended Mr. and Mrs. B.See footnote 2
2
By order of November 21, 2000, the circuit court found that it is in the best
interests of Shanee to be placed with Ralph and Patricia B., and that visitation of one
weekend a month be continued with Richard and Valerie A. for six months.
The circuit court
made the following findings of fact and conclusions of law.
1. The Court has considered the preference for
sibling placement contained in West Virginia Code §49-
2-14 and find [sic] the presumption of placement is
rebutted due to the following:
a. The infant, Shanee Carol [B.], was born to the
natural parents after the rights to any siblings had been
terminated and said siblings had been adopted.
b. No sibling bond was ever formed between the
infant . . . and her siblings and therefore no siblings [sic]
relationship actually exists, also there were occasional
visits on holidays.
c. The Court originally place[d] the infant . . . in the
temporary care of the [sic] Ralph and Patricia [B.], and
was asked to move the child to the [As] by the [DHHR]
as they felt placement with the siblings was mandatory.
At the time the infant . . . was moved, the Court stated
that it would not consider the move when deciding final
placement.
d. The relationship between Ralph [B.] and Patricia
[B.] on the one hand and the infant . . . were [sic] formed
while the child was still quite young and before the
removal of the infant . . . as Ralph [B.] and Patricia [B.]
babysat for the infant . . . , fed her and bathed her.
2. Placement of the infant . . . with Ralph [B.] and
Patricia [B.] would be in the best interest of the infant .
. . for the following reasons:
a. Ralph [B.] and Patricia [B.] are the natural uncle
and aunt of the infant, Shanee Carol [B.], and were
frequent caretakers of the child and provided financial
and support services to said infant . . . before her removal
from the home of the biological parents.
b. After an investigation the Guardian-Ad-Litem
recommended that placement with [the Bs] would be in
the best interests of the infant[.]
c. A psychological evaluation of Dr. Stephen
O'Keefe found that either of the homes would be
beneficial to the child but that placement with [the Bs]
was in the best interest of the infant[.]
d. The [DHHR's] recommendation of placement
with [the As] was because they felt they were bound by
West Virginia Code §49-2-14.
e. Even though both fathers had psychological issues
with placing the child in the home according to Dr.
O'Keefe, the scales in that regard tilt in favor of
placement with [the Bs].
f. Even though both prospective fathers had criminal
records that would be considered minor and would not
interfere with either's ability to be an appropriate parent.
g. The infant, Shanee Carol [B.], had bonded with
both [the Bs] and [the As].
h. Dr. Stephen L. O'Keefe, a psychologist who
conducted a psychological evaluation on all of the
relevant parties, recommended placement of the infant .
. . with Ralph [B.]and Patricia [B.].
i. [The Bs] do not have a child in their home.
j. Based upon the testimony of Dr. O'Keefe, the two
(2) siblings are [sic] in the home of [the As], are very
demanding siblings.
3. The Court does conclude by finding that the
placement of the child with [the Bs] in which the infant
. . . is the only child in the home, would allow the infant
. . . to have greater security, attention and resources, and
further, that Dr. O'Keefe found that placement with the
infant's . . . siblings may not be in the best interest of any
of the children due to the extra stress that would be
placed on the parents.
The circuit court stayed the execution of the order for seven days in order to allow Richard
and Valerie A. to file an appeal. This Court subsequently granted the petition for appeal and
stayed the execution of the circuit court's order pending resolution of the appeal.
Prior to discussing the issues raised by the parties, we set forth the applicable
standards of review.
In reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order
and the ultimate disposition under an abuse of discretion
standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167
(1997). Also, “[w]e review the circuit court's application of the law to undisputed facts de
novo.” In Re Petrey, 206 W.Va. 489, 490, 525 S.E.2d 680, 681 (1999). See also
Lee v.
Gentlemen's Club, Inc., 208 W.Va. 564, 542 S.E.2d 78 (2000);
State ex rel. United Mine
Workers v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997); and Lawrence v. Cue Paging
Corp., 194 W.Va. 638, 461 S.E.2d 144 (1995).
Ralph and Patricia B. and the guardian ad litem respond that the sibling
preference expressed in W.Va. Code § 49-2-14 is rebutted by the evidence.
First, they note
that Shanee never developed a close bond with her siblings because they were removed from
the household prior to her birth, and there is no evidence that Shanee even knew her siblings
prior to being placed with Richard and Valerie A. in May 2000. Second, W.Va. Code § 49-
2-14(e) provides for the separation of siblings if harm would result to one or more of the
siblings by joining them, and if reunification would not be in their best interests. The
guardian ad litem claims that both of these circumstances are present here as shown by Dr.
O'Keefe's testimony that Eric, Shanee's brother, is “hyper”See footnote 3
3
and demanding, and that his
competition with his sister Shaquilla is “unusual” and “extreme.” The guardian ad litem
concludes that the needs of both Shanee and Eric would be compromised by competition for
attention in the A. household. Finally, the guardian ad litem points to Dr. O'Keefe's finding
that Richard A. is emotionally detached from the children and his wife and dissatisfied with
life in general as evidence that Shanee should not be placed with Richard and Valerie A.
This case is governed by W.Va. Code § 49-2-14(e) (1995)See footnote 4
4
which states:
(e) When a child is in a foster care arrangement and
is residing separately from a sibling or siblings who are
in another foster home or who have been adopted by
another family and the parents with whom the placed or
adopted sibling or siblings reside have made application
to the department to establish an intent to adopt or to
enter into a foster care arrangement regarding a child so
that said child may be united or reunited with a sibling or
siblings, the state department shall upon a determination
of the fitness of the persons and household seeking to
enter into a foster care arrangement or seek an adoption
which would unite or reunite siblings, and if termination
and new placement are in the best interests of the
children, terminate the foster care arrangement and place
the child in the household with the sibling or siblings:
Provided, That if the department is of the opinion based
upon available evidence that residing in the same home
would have a harmful physical, mental or psychological
effect on one or more of the sibling children or if the
child has a physical or mental disability which the
existing foster home can better
accommodate, or if the
department can document that the reunification of the
siblings would not be in the best interest of one or all of
the children, the state department may petition the circuit
court for an order allowing the separation of the siblings
to continue: Provided, however, That if the child is
twelve years of age or older, the state department shall
provide the child the option of remaining in the existing
foster care arrangement if remaining is in the best
interests of the child. In any proceeding brought by the
department to maintain separation of siblings, such
separation may be ordered only if the court determines
that clear and convincing evidence supports the
department's determination. In any proceeding brought
by the department seeking to maintain separation of
siblings, notice shall be afforded, in addition to any other
persons required by any provision of this code to receive
notice, to the persons seeking to adopt a sibling or
siblings of a previously placed or adopted child and said
persons may be parties to any such action.
The parties agree that this code section expresses a preference that siblings be placed in the
same household. As noted above, however, Richard and Valerie A. aver that the circuit court
improperly disregarded the “sibling preference,” and Ralph and Patricia B. assert that the
“sibling preference” is rebutted by the evidence.
West Virginia has a “public policy of attempting to unite siblings in foster care
placements.” State ex rel. Paul B. v. Hill, 201 W.Va. 248, 257, 496 S.E.2d 198, 207 (1997).
See also In Re Michael Ray T., 206 W.Va. 434, 439 n. 15, 525 S.E.2d 315, 320 n. 15 (1999).
This Court has held:
In cases where there is a termination of parental
rights, the circuit court should consider whether
continued association with siblings in other placements
is in the child's best interests, and if such continued
association is in such child's best interests, the court
should enter an appropriate order to preserve the rights of
siblings to continued contact.
Syllabus Point 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991). In James
M., 185 W.Va. at 658, 408 S.E.2d at 410, we recognized that “sibling relationships often
become more meaningful for brothers and sisters when they are permanently separated from
their mothers and fathers[.]”
Other courts also have articulated a preference for keeping siblings together
in various contexts. In Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 662,
436 N.E.2d 1260, 1264 (1982), the Court of Appeals of New York explained:
[I]t is often in the child's best interests to continue to live
with his siblings. . . . “Close familial relationships are
much to be encouraged.” (Matter of Ebert v. Ebert,
supra, at p. 704, 382 N.Y.S.2d 472, 346 N.E.2d 240.)
“Young brothers and sisters need each other's strengths
and association in their everyday and often common
experiences, and to separate them, unnecessarily, is
likely to be traumatic and harmful.” (Obey v. Degling,
supra, at p. 771, 375 N.Y.S.2d 91, 337 N.E.2d 601;
Matter of Gunderud v. Gunderud, 75 A.D.2d 691, 427
N.Y.S.2d 92; Bistany v. Bistany, supra.)
Likewise, the Court of Appeals of Louisiana opined in Theriot v. Huval, 413 So.2d 337, 341
(1982):
The separation of children of a family, though
sometimes necessary, is a custodial disposition that
courts seek to avoid. Normally, the welfare of these
children is best served by leaving them together, so they
can have the full benefit of companionship and affection.
When feasible, a court should shape it orders to maintain
family solidarity. (Quoting Tiffee v. Tiffee, 254 La. 381,
223 So.2d 840 (La. 1969)).
See also, In Re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994) (“Siblings should not
be separated from one another without good and compelling reasons”); Cochenour v.
Cochenour, 642 S.W.2d 402, 404 (Mo.Ct.App. 1982) (“Absent exceptional circumstances,
the children of divorced parents should not be separated”); In the Matter of the Marriage of
Scott, 31 Or.App. 975, 571 P.2d 1281 (1977); Bake v. Bake, 772 P.2d 461 (Utah Ct.App.
1989); Price v. Price, 611 N.W.2d 425 (S.D. 2000); and In the Interest of Pena, 999 S.W.2d
521 (Tex.App. 1999).
Further, it is axiomatic in this Court that “[i]n . . . custody matters, we have
traditionally held paramount the best interests of the child.” Syllabus Point 5, in part, Carter
v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996). On numerous occasions we have said
that “the best interests of the child is the polar star by which decisions must be made which
affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989)
(citation omitted). During oral argument, Mr. and Mrs. A. asserted that W.Va. Code § 49-2-
14(e) subordinates the best interests of the child consideration to the sibling preference. Mr.
and Mrs. B. countered that the best interests of the child consideration remains paramount
in cases such as the instant one, and that the sibling preference is a secondary consideration.
We believe that both sibling preference and best interests of the child considerations are
incorporated in W.Va. Code § 49-2-14(e). In order to determine how these considerations
interact, we look to the clear provisions of the statute.
W.Va. Code § 49-2-14(e) provides that the DHHR is the entity charged with
deciding whether to place a child in the same household of his or her siblings. Further, the
DHHR is to place the child with his or her siblings if it determines that the persons with
whom the child's siblings reside are fit and that placement with the child's siblings is in the
best interests of all of the children. The statute lists three instances in which the DHHR may
seek the separation of the siblings. These are if the DHHR determines that residing in the
same home would have a harmful physical, mental or psychological effect on one or more
of the sibling children; if the child being placed has a physical or mental disability which the
child's existing placement can better accommodate; or if the DHHR can document that the
siblings' reunification would not be in the best interests of one or all of the children.
Significantly, the code section provides that in instances where the DHHR seeks the siblings'
separation, “such separation may be ordered only if the court determines that clear and
convincing evidence supports the [DHHR's] determination.” W.Va. Code § 49-2-14(e).
In the instant case, the DHHR did not determine that Shanee should be
separated from her siblings but rather that she should be united with them. The standard to
be used by the circuit court in reviewing the DHHR's determination that siblings should be
united, instead of separated, is not specifically provided for in W.Va. Code § 49-2-14(e).
However, because the statute provides that the circuit court is not to order separation, when
recommended by the DHHR, in the absence of clear and convincing evidence supporting the
DHHR's determination, we believe that it follows that the circuit court is not to disregard the
DHHR's recommendation that siblings should be united, unless it finds that clear and
convincing evidence indicates to the contrary.
Therefore, we hold that W.Va. Code § 49-2-14(e) (1995) provides for a
“sibling preference” wherein the West Virginia Department of Health and Human Resources
is to place a child, who is in the department's custody, with the foster or adoptive parent(s)
of the child's sibling or siblings, where the foster or adoptive parents seek the care and
custody of the child, and the department determines (1) the fitness of the persons seeking to
enter into a foster care or adoption arrangement which would unite or reunite the siblings,
and (2) placement of the child with his or her siblings is in the best interests of the children.
In any proceeding brought by the department to maintain separation of siblings, such
separation may be ordered only if the circuit court determines that clear and convincing
evidence supports the department's determination. Upon review by the circuit court of the
department's determination to unite a child with his or her siblings, such determination shall
be disregarded only where the circuit court finds, by clear and convincing evidence, that the
persons with whom the department seeks to place the child are unfit or that placement of the
child with his or her siblings is not in the best interests of one or all of the children. We now
review the circuit court's decision in light of this standard.
Initially, we note that Ralph and Patricia B. and the guardian ad litem
essentially challenge the relevance of the sibling preference under the instant facts because,
until Shanee was temporarily placed with Richard and Valerie A. by the circuit court, Shanee
apparently had little contact with her siblings and had not bonded with them. We do not
believe, however, that this fact negates the sibling preference. Shanee and her siblings are
still quite young in age so that, given the opportunity, Shanee can still bond with her siblings,
come to appreciate their companionship, and ultimately enjoy all of the advantages in life
afforded by growing up with brothers and sisters. This Court should not disregard the fact
that Shanee has siblings merely because, up to this point in her young life, she unfortunately
has not had ample opportunity to enjoy their association. Accordingly, we believe it is
proper to apply the sibling preference in our consideration of this case.
By all accounts both sets of prospective adoptive parents in this case would be
suitable parents for Shanee. Dr. O'Keefe, in whose assessment the circuit court placed great
weight, found both households “to meet all of the standards of adequacy.” He determined,
however, that the balance tipped toward Ralph and Patricia B. due to the fact that Shanee's
siblings, who live with Richard and Valerie A., are extremely active and demanding children.
Dr. O'Keefe concluded that Shanee would be better off in the B. household where she would
be the only child and would not have to compete with her siblings for attention. Dr. O'Keefe
realized, however, that his assessment is “in direct contrast to a value that says children ought
to stay together[.]” The circuit court essentially hinged its decision to disregard the
recommendation of the DHHR and the sibling preference on Dr. O'Keefe's opinion, and
found that,
the placement of the child with [the Bs] in which the
infant, Shanee Carol [B.], is the only child in the home,
would allow the infant, Shanee Carol [B.], to have
greater security, attention and resources, and further, that
Dr. O'Keefe found that placement with the infant's . . .
siblings may not be in the best interest of any of the
children due to the extra stress that would be placed on
the parents.
Ordinarily, “[q]uestions relating to . . . custody of the children are within the
sound discretion of the court and its action with respect to such matters will not be disturbed
on appeal unless it clearly appears that such discretion has been abused.” Syllabus, Nichols
v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977). In the instant case, however, the circuit
court is bound to apply the legal standard set forth in W.Va. Code § 49-2-14(e) to the facts
of the case in order to determine whether there is clear and convincing evidence to rebut the
sibling preference. Because this matter concerns the circuit court's application of the law to
undisputed facts, we will review the circuit court's decision de novo. See In Re Petrey,
supra. In other words, we look at the evidence as if for the first time.
According to W.Va. Code § 49-2-14(e), the DHHR's recommendation that
Shanee be placed with Mr. and Mrs. A. is not to be disregarded absent clear and convincing
evidence to the contrary. “Clear . . . and convincing proof . . . is the highest possible
standard of civil proof defined as 'that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established.'” Wheeling Dollar Savings & Trust v. Singer, 162 W.Va. 502, 510, 250 S.E.2d
369, 374 (1978) (quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118, 123
(1954) (citation omitted). We are simply not persuaded that clear and convincing evidence
supports the conclusion that it is in Shanee's best interests to be separated from her siblings.
The evidence indicates that Richard and Valerie A. have been good parents to
Shanee's siblings. According to the findings of fact of the circuit court, based on Dr.
O'Keefe's psychological evaluations, “either of the homes would be beneficial to the
child[.]” The circuit court found further that Shanee had bonded with both Ralph and
Patricia B. and Richard and Valerie A. In fact, the only negative unique to the A. household
contained in the circuit court's findings is that Shanee's two siblings are “very demanding.”See footnote 5
5
In addition, Dr. O'Keefe testified that he is convinced that Richard and Valerie
A. “are very fine parents for the two children they already have, and that they could handle
this third child without difficulty.” The evidence shows also that Richard and Valerie A. are
mature, stable people. Although the psychological profiles indicated areas of concern for
both Mr. A. and Mr. B., Dr. O'Keefe adjudged Mr. A. to be “a very competent parent.” He
described Mr. A. as “pretty mild tempered,” and free of any type of alcohol or drug abuse,
or unmanageable psychological conflicts or threatening stresses. According to Dr. O'Keefe,
Mr. A. “probably would handle any life changes very effectively. . . . [H]e has a lot of
emotional reserve to take the roll with the punches, take whatever comes his way.” Dr.
O'Keefe concluded that “it would be a reasonable choice to place [Shanee] with [the As],”
and added that “[t]he only disadvantage I see from [the As] is that [Shanee's two siblings]
are very, what I'm going to call, high maintenance kids.”
In light of this evidence concerning Richard and Valerie A., in addition to the sibling preference found in W.Va. Code §49-2-14(e), this Court concludes that the fact that Shanee's two siblings are active and demanding does not constitute clear and convincing evidence that it is in Shanee's best interests to be separated from them. In other words, after considering all of the evidence adduced below, we are not left with a firm conviction that separation is in the best interests of Shanee and/or her siblings. Accordingly, we find that the circuit court erred in failing to give due consideration to the sibling preference in W.Va. Code § 49-2-14(e), and in ordering that Shanee be separated from her siblings.See footnote 6 6
We note in closing that the circuit court was faced in this case with a very
difficult decision affecting the lives of three young children. Compounding the difficulty of
the circuit court's decision was the task of choosing between prospective parents all of
whom, the evidence indicates, are good people who would be responsible and capable
custodians of Shanee. If the sibling preference articulated by this Court and set forth by the
legislature in W.Va. Code § 49-2-14(e) were not a factor in determining Shanee's placement,
we would be hard pressed to find fault with the circuit court's decision. Nevertheless, our
law prefers, in the absence of compelling circumstances, that siblings enjoy the many
advantages of growing up together and the attendant opportunities to forge meaningful, life-
long relationships.
IV.
CONCLUSION
For the reasons stated above, we reverse the November 21, 2000 order of the
Circuit Court of Nicholas County, and we order that the infant, Shanee, be placed for
adoption with her siblings in the household of Richard and Valerie A.
Reversed.
home. That's in direct contrast to a value that says children ought to stay together, and I realize that.”