State ex rel. Kutil and Hess v. Blake, Jr., Judge

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2009 Term __________ No. 34618 __________ FILED June 5, 2009 released at 10:00 a.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA EX REL. KATHRYN KUTIL AND CHERYL HESS, Petitioners v. HONORABLE PAUL M. BLAKE, JR., JUDGE OF THE CIRCUIT COURT OF FAYETTE COUNTY, AND THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondents __________________________________________________ Petition for a Writ of Prohibition WRIT GRANTED __________________________________________________ Submitted: March 11, 2009 Filed: June 5, 2009 Counsel for Petitioner: Anthony Ciliberti, Jr. Ciliberti Law Office, PLLC Fayetteville, West Virginia Counsel for the Respondent, Paul M. Blake, Jr., Judge: Ancil G. Ramey Hannah B. Curry Steptoe & Johnson Charleston, West Virginia Counsel for the Respondent, West Virginia Department of Health and Human Resources: Darrell V. McGraw, Jr. Attorney General Charleston, West Virginia Angela Alexander Ash Office of the Attorney General Princeton, West Virginia Thomas J. Steele, Jr. Fayette County Prosecuting Attorney s Office Fayetteville, West Virginia Guardian Ad Litem: Thomas K. Fast Fast Law Office Fayetteville, West Virginia Counsel for Amicus Curiae, National Association of Social Workers National Association of Social Workers West Virginia Chapter The Evan B. Donaldson Adoption Institute North American Council on Adoptable Children West Virginia Coalition Against Domestic Violence: Robert M. Bastress, Jr. Law Office of Robert M. Bastress, Jr. Morgantown, West Virginia Allan N. Karlin Jane E. Peak Allan N. Karlin & Associates Morgantown, West Virginia Maura Monaghan (Admitted Pro Hoc Vice) Eliza M. Sporn (Admitted Pro Hoc Vice) Alison J. Page (Admitted Pro Hoc Vice) Andrea Glen (Admitted Pro Hoc Vice) Debevoise & Plimpton New York, New York Counsel for Amicus Curiae, ACLU ACLU of West Virginia People for American Way Foundation: Sharon M. McGowan (Admitted Pro Hoc Vice) ACLU Foundation Washington, D.C. Terri S. Bauer ACLU of West Virginia Foundation Charleston, West Virginia Counsel for Amicus Curiae, Family Policy Council of West Virginia: James A. Campbell (Admitted Pro Hoc Vice) Alliance Defense Fund Scottsdale, Arizona Jeremiah G. Dys Family Council of West Virginia Charleston, West Virginia Counsel for Amicus Curiae, Foster Care Alumni Association CASA of the Eastern Panhandle, Inc. COLAGE Fairness West Virginia: Stephen G. Skinner Laura C. Davis Skinner Law Firm Charles Town, West Virginia Gregory N. Nevins (Admitted Pro Hoc Vice) Lambda Legal Defense and Education Fund, Inc. Atlanta, Georgia Counsel for Amicus Curiae, The American College of Pediatricians: Richard E. Holtzapfel Holtzapfel Law Offices, PLLC Hurricane, West Virginia The Opinion of the Court was delivered PER CURIAM. SYLLABUS BY THE COURT 1. The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or inexcess of, jurisdiction. Syllabus, State ex rel. Vineyard v. O Brien, 100 W.Va. 163, 130 S.E. 111 (1925). 2. In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate pow this Court will examine fi e factors: (1) whether the ers, v party seeking the writ has no othe r adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whethe the lower tribunal s order isclearly erroneous as a m r atter of law; (4) whether the lower tribunal s order isan oft repeated error or m anifests persistent disregard for either procedural or substantive law; and (5) whether th lower tribunal s order e raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determ ining whether a discretionary writ of prohibitionshould issue. Although all five factors need not be satisfied, it is clear that the third factor,the existence of clear error asa matter of law, should be given substantial weight. Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). i 3. Courts are not constituted for th purpose of making advisory decrees or e resolving academic disputes. Mainella v. Board of Trustees of Policemen s Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943). Syl. Pt. 2, in part, Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991). 4. The best interests of a ch ild are s erved by preserving im portant relationships in that child s life. Syl. pt. 2, State ex rel. Treadway v. McCoy, 189 W.Va. 210, 429 S.E.2d 492 (1993). 5. A child has a right to continued association with individuals with whom he has formed a close em otional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child. Syl. Pt. 11, In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996). 6. A statutory provi sion which is clear and unambiguous and plainly expresses the legislative intent will not be in terpreted by the courts but will be given full force and effect. Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). ii Per Curiam: By means of this original jurisdiction action, Kathryn Kutil and Cheryl Hess (hereinafter collectively referred to as P etitioners ) seek a writ of prohibition to bar enforcement of the N ovember 21, 2008, order 1 of the Circuit Court of Fayette County. Petitioners specifically are seeking to prevent the female infant, Baby Girl C. (hereinafter e. B.G.C. ),2 from being removed from their foster hom B.G.C. was placed in Petitioners home as a foster child by the West Virginia Department of Health and Human Resources (hereinafter DHHR ) 3 shortly after the child s birth. Petitioners are a same sex couple whose home had been approved by DHHR for both foster care and adoption. The removal of the infant was ordered at the conclusion of an abuse and neglect permanency hearing at which the lower court accepted the recommendation th B.G.C. s case be transferred to the at adoption unit of DHHR. In its removal order, the lower court dire ted that B.G.C. be moved c As related later in this opinion, the order was orally made at the conclusion of an evidentiary hearing he ld on Novem ber 21, 2008, and th ereafter incorporated in a written order dated December 2, 2008. 1 Following our traditional practice in child abuse and neglect m atters and ot er h cases involving sensitive facts, we willnot reveal the child s last name. See, e.g., In Interest of Tiffany Marie S., 196 W.Va. 223, 226 n. 1, 470 S.E.2d 177, 180 n. 1 (1996). 2 Both Judge Paul M. Blake (hereina Respondent ) and DHHR are nam fter ed as respondents in the petition before us; however, prohibition does not lie against DHHR under the facts of this case be cause the agency was not acti ng in a judicial capacity. See W.Va. Code § 53-1-1 1923) (Repl. Vol. 2008);State ex rel. Miller v. Smith, 168 W.Va. 745, ( 756, 285 S.E.2d 500, 506 (1981) (pe rformance of executive duties is not subject to a writ of prohibition). 3 1 from her temporary foster home and placed in a household interested in adoption that is a traditional family having a mother and a father rather than a household headed by a sam e 4 sex couple or single person.In consideration of the argum ents of the parties, copies of court documents supplied with the briefsas exhibits and applicablelegal authorities, we grant the relief requested. I. Factual and Procedural Background5 When B.G .C. was born on December 8, 2007, she tested positive for the presence of cocaine and oxycodone inher bloodstream. On this basis, while B.G.C. was still in the hospital DHHR in stituted abuse and neglect proceedings against the biological We hereby acknowledge thecontribution of the various amici curiae who filed briefs in this case. We have received three amicus briefs supporting Petitioners position: one jointly authored by the Amer Civil Liberties Union, Am ican erican Civil Liberties Union of West Virginia and People for the American Way Foundation; a second representing the collaborative efforts of Foster Care Alumni of America, COLAGE, CASA (Court Appointed Special Advocates) of the Easter Panhandle, Inc. and FairnessWest Virginia; and the third n presented by the National Associ ation of Social Workers, Na tional Association of Social Workers West Virginia Chapter, Evan B. Donaldson Adoption Institute, North American Council on Adoptable Children, and West Virginia Coalition Against Domestic Violence. Two amicus briefs were f iled in support of Respondents position: one by The American College of Pediatricians and the other by The Family Policy Council of West Virginia. We value the participation of these groups and th e insights their briefs lend to the parties arguments. 4 To aid the reader in unde rstanding the numerous facts of this case, a timeline of significant occurrences is supplied as an appendix to this opinion. 5 2 mother,6 and was granted custody of B.G.C. on December 13, 2007. At the same time, the court appointed a guardian ad lite (hereinafter GAL ) for B.G.C. Upon discharge of the m infant from the hospital on Decem ber 24, 2007, DHHR placed B.G.C. directly into Petitioners home, which had b approved previously by DHHRfor both foster parenting een and adoption and was then serving as a foster home for several other children.7 A motion to rem ove B.G.C. from the foster home was filed by the infant s 8 otion, the GAL maintained that removal was GAL on January 24, 2008. In support of his m necessary even though the home appears to be com fortable and physically safe for the infant respondent . . . [he nonetheless believed]that the best interest of the child is not to be raised, short term or long term , in a hom osexual environment and that the sam e is detrimental to the child s overall welfare a nd well-being. DHHR and the foster parents filed responses objecting to the motion. The motion was entertained at a January 31, 2008, hearing at which the lower court granted interv enor status to Petitioners. The February 25, 2008, order issued as a result of this hearing reflects that the court determ ined not [to] The identity of the biological father is unknown. 6 Ms. Kutil s adopted daughter, who had in itially been placed by DHHR in the home as a foster child, was am the children present when B.G. . was placed in the foster ong C home. It is noteworthy that the adoption, which also oc curred in Fayette County, was approved by the other judge in the circuit. 7 The motion also asked the court to en a statewide injunction against DHHR ter to prohibit the agency from placing foster children in homosexual homes, for which the lower court ultimately determined it lacked jurisdiction. 8 3 interfere with the curren t fo ster care placement at this tim e and reserved ruling on the removal motion as well as the GAL s request for full hearing on the motion. The child s biological mother was gran two im ted provement periods, however, she failed in her effortsto become a fit parent. The biological m other s parental rights were terminated at a dispositional hearing held on October 8, 2008, which termination is memorialized in a Novem ber 5, 2008, orde r. Shortly following the term ination, a multidisciplinary treatment team (hereinafter MDT ) met to discuss B.G.C. s future. A MDT/Status Report dated October 28, 2008, containing the re sults of this meeting was submitted to the court. The report reflected that the MDT endor ed the transfer of B.G.C. s s case to DHHR s regional adoption unit and reco mended that B.G.C. remain in Petitioners m home during the adoption process. The MDT report also related that the team had been informed by the adoption unit supervisor that there would be no reason for the Adoption Unit to move . . . [B.G.C.] dueto family members and siblings being previously ruled out[9] . . . . [and that] the Adoption Unit would be re luctant to uproot a child from the only home she knows. The only member of the MDT who objected to the recommendation was the GAL. Following the release of the M DT rep ort, D HHR issued a permanency plan on In response to an order of the lowecourt, DHHR had conducted hom studies r e to determine if a custodial arra gement with a family member or sibling was feasible. These n efforts resulted in finding that no such acceptable placement existed for B.G.C. 9 4 October 31, 2008, indicating thedepartment s position that adoption was in the best interest of B.G.C. The permanency plan also noted that Petitioners had expressed the desire to adopt B.G.C. followed by a list of reasons w the home would be appropriate for adoption. hy A permanency hearing in the abuse and neglect case was held on November 6, 2008, at which the GAL renewed his motion for removal of B.G.C. from a homosexual home. The lower court set forth its fin dings from the initial perman ency hearing in a November 12, 2008 order. The order begins with a summary of the positions of the parties and then states the observations and findings of the lower court, including the following: 29. It also appears to the Court that the fairness showed by the Court by allowing the child to remain with the foster parents pending resolution of the case is now being used to support the argument that, since the child is developing bonds with the intervenors, the child shoul d not be rem oved from the intervenors care, and that a option by the intervenors should be d recommended without purs[ue] adoptive parents which could ing provide a more traditional home setting. ***** 31. The Court FINDS that children need both m other and father and that avenues to such a result should at the least be explored by the DHHR. The Court FINDS that untraditional family settings should not be the first and only route taken by the DHHR when searching fora permanent/adoptive placement for a child. 5 The November 12 order also includes the following conclusions of law: 4. The Court CONCLUDES that Circuit Courts are not required to accept the Permanency Plan of the DHHR and may either accept, reject or modi y said recommendation depending f on whether or not the Court finds itto be in the best interests of the child at issue. 5. The Court CONCLUDES that the polar star in all matters involving children is what is in the best interest of the child. ***** 7. The Court CONCLUDES that the standards and guidelines in the Rules appli cable for permanency placemen t review hearings are also app licable and should be considered during the initial permanency plan hearings. Pursuant to these standards and guidelines im posed upon the Courts, the Court must consider, among other things, the appropriateness of the current placement of the child and whether it is the most familylike setting. See Rule 41(a)(6).10 Although not squarely before us, an ar gument raised in the am icus brief jointly submitted by the American Civil LibertieUnion, the AmericanCivil Liberties Union s of West Virginia and the People for the Am erican Way Foundation m aintains that the lower court incorrectly relied upon the parentheticalreference to most family-like placement in Rule 41(a)(6) to arrive at the conclusion that a traditional home consisting of a mother and father is a preferred foster placement or adoptive home in this state. The first point argued in the brief is that the Abuse and Neglec t Rules do not govern a doption proceedings and cannot be used to support the concept that the law favors adoption by married couples. It is then proposed that the provi ion in Rule 41(a)(6) of the Ru of Procedure for Abuse and s les Neglect Proceedings (hereinafter Abuse a nd Neglect Rules ) requi ring consideration of whether a foster home placement of an abused and neglected child is the least restrictive one (most family-like one) available, simply indicates a preference for a foster home over a group home or institutional setti g. As further support for th position, reference is made n is to the following related Abuse and Neglect Rule pro visions: Rule 41(a)(10)(E) ( If placement in a group home or institution is recommended [matters for discussion at a permanent placement review conference shoul d in clude]: (i) An explanation of why (continued...) 10 6 8. The Court CONCLUDES that, if at all possible, it is in the best interest of children to be raised by a traditionally defined family, that is, a familyconsisting of both a m other and a father. The Court CONCLUDES that non-traditional families, such as the intervenors, should only be considered as appropriate permanent/adoptive placements if the DHHR first makes a sufficient effort to place the child in a traditional home and those efforts fail. In other word s, if the DHHR has attempted in good faith to secure a traditional family to adopt the child and the DHHR s attempts fail, then a non-traditional family may be considered as an adoptive placement. This did not occur in the present case. 9. For the above stated reasons, the Court CONCLUDES that it can only tentatively approve the Permanency Plan pending argument/hearing to address the issues raised in this hearing regarding thePermanency Plan, including the extent of the Court s authority over the execution of the Permanency Plan . . . and argument/evidencein support of and in opposition to the guardian ad litem s pending motions. 10. The Court CONCLUDES it is necessary and in the best interest of the child to ORDER that the DHHR place the child in a traditional home setting with a mother and a father. The Court deems such action necessary to materially promote the best interests of the child. In recognition of the bonds that m ay have form ed between the chil d and the intervenors, and to lessen any stress on the child, the Court CONCLUDES that it is in the best interests of the infant child that the removal from the intervenors hom e and placem ent in a traditional hom e (...continued) treatment outside a fam ily environm ent is necessary, including a brief summary of supporting expert diagnoses and recom mendations; and (ii) A discussion of why a less restrictive, more family-like setting is not practical, including placement with specially trained foster parents[.] ); and Rule 28(c)(3) (The contents of a child s case plan when DHHR s recommendation is tempor ry or permanent placementoutside of the child s home a must include [a] description of the recommende placement or type of home or institutional d placement in which the child is to be placed . . . and whether or not it is the least restrictive (most family-like) one available. 10 7 should be completed over a two week transitional period. The purpose of the removal and transfer to a traditional home is to materially promote the best interests of the child by encouraging and facilitating adoptive placement of the child with a traditionally defined family and to ease the child s transition when and if such adoptive placement occurs. (Emphasis in original.) The order also set Novem ber 21, 2008, as the date on which the evidentiary hearing regarding the permanency plan would be held. On November 17, 2008, Petitioners petitio ned this Court for a writ of prohibition accompanied by a motion for an emer gency stay of the lower court s order of removal. The lower court rendered both matters moot by entering an order on November 18, 2008, staying its removal order. DHHR had objected to the removal of B.G.C. from Petitioner s home until the day of the November 21, 2008, evidentiary hearing. Prior to the hearing convening that day, DHHR informed the lower court by fax that B.G.C. needed to b e moved to another foster care h ome because Petitioners home was over the capacity limit set for foster homes.11 At the hearing it was made kno wn that the last foster placement by DHHR in There were a total of seven children in Petitioners home on the day of the November 21 hearing, six foster children a d Ms. Kutil s adopted daughter. The maximum n number of children a foster hom may house at one time is not entirely clear. West Virginia e Code § 49-2B-2 (p) (2006) (Supp. 2008) sets the capacity at no more than five children who are unrelated by blood, m arriage or adoption to any adult m ember of the household. However, there are inconsistencies in the st ate regulations regarding occupancy limits of (continued...) 11 8 Petitioners home had occurred on Oc tober 31, 2008, shorty before either of the permanency l plan hearings. The evidence presented at the Nove mber 21, 2008, hear ing included the testimony of DHHR adoption andchild protective service work both Petitioners and two ers, expert witnesses a clinical psychologist called by the GAL, and a clinical/forensic psychiatrist ca lled by Petitioners.12 At the conclusion of the hearing, the lower court renewed its previous finding that adoption was the proper permanency plan for B.G.C. and ordered from th e bench that B.G.C. be removed fro m Petitioners home by noon the following day for placement in the hom e of a married couple DHHR had identified as a potential adoptive home. The lower court later summarized the basis for its action in a December 2, 2008, order. This order included the following relevant findings of fact and conclusions of law: 13. The Court FINDS that th Kutil-Hess household may be e the most appropriate adoptiveplacement home for the child, but it is unfair not to allow the child the option to be adopted by a traditional family. The child s hould be given the opportunity to be adopted by mother-father adoption and not be locked into a single parent adoption. (...continued) foster care homes. See 78 C.S.R. 2-3.18 (providing that a foster family home may care for five or less children), contra 78 W.Va. C.S.R. § 2-13.3.a. (providing that the num ber of children who may reside in a foster home may not exceed six (6). ). 11 According to their testim ony, neither of the experts actually assessed B.G.C. s foster home relationships or environment. 12 9 * * * * * 15. The Court FINDS that the Permanency Plan of transition to the DHHR Adoption Unit is appropriate and should be accepted by this Court. 16. The Cou rt FINDS that [B.G .C.] is presently in the intervenors hom e, however, the DHHR has found the intervenors home is over capacity and has asked the Court to remove the child with a tran sitional period, based upon that reason. Thus, the Court FINDS that [B.G.C.] should be moved immediately. The Court FINDS that placement of [B.G.C.] in a home with a married mother nd father pending such adoption a process is most appropriate for the child s well being. CONCLUSIONS OF LAW 1. The Court CONCLUDES that the intervenors can not adopt this child as a couple because of statute. The intervenors argue that they are the only proper parties to be considered for the adoption of [B.G.C.] ; however, under West Virginia law §48-22-201, only m arried couples, married persons with consent of their spouse, or single persons may petition to adopt a child. For this reason, the Court C ONCLUDES that the interv enors cannot lawfully petition together to adopt B.G.C., only one of the two intervenors may petition for adoption. 2. The Court CONCLUDES that the DHHR s req uest for removal based upon the fact th at the intervenors hom e is overcapacity should be GRANTED as it is in the child s best interest. Further considering the well-being of the child , the Court CONCLUDES and ORDERS that the child be removed from the intervenors hom by 12:00 noon Novem 22, 2008. e ber (Emphasis in original). Before the written order was issued, Petitioners acted on the pronouncement of the lower court at the November 21 hearing by again seeking an emergency stay by this 10 Court of the rem oval order. We grante d the stay requested on November 26, 2008. Thereafter, on December 9, 2008, this Court 13 granted Petitioners leave to amend their previously filed petition for a writ of prohibition which is now under consideration. II. Standard of Review The original jurisdiction au thority of this Court to consider matters of prohibition stems from Article VIII, § 3 of the West Virginia Constitution. That authority is further recognized and de fined by statute and rule. See W.Va. Code §§ 51-1-3 (1923); 53 1-2 (1933); W.Va. R. App. P. 14. Historically, we have been guarded about granting relief in prohibition, reserving its use for extraordinary situations. As we stated in the syllabus of State ex rel. Vineyard v. O Brien, 100 W.Va. 163, 130 S.E. 111 (1925), [t] he writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction. Petitioners do not allege that the lower court acted without jurisdiction of the subject matter and parties in the abuse and neglecaction, but instead m t aintain that the lower Although Petitioners took step to stop the enforcemen of the removal order, s t it is undisputed that Petitioners complied with the terms of the order and delivered B.G.C. with her belongings to her new foster home on November 22. As related to this Court, on or about November 26, 2008, the prospective adoptive parents named in the removal order informed DHHR that conditionshad changed and they wereno longer in a position to adopt B.G.C.. The child was returned to Petitioners home later this same day after this Court granted Petitioners motion for the emergency stay of the removal order. 13 11 court went beyond the bounds of its authority in ordering rem oval in this case. In such circumstances, we consider those measures outlined in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), which reads as follows: In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claim ed that the lower tribunal exceeded its legitimate powe rs, this Court will exam ine five factors: (1) whether the party seeking the writ has no other adequate m eans, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be dam aged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal s order is clearly erroneous as a m atter of law; (4) whether the lower tribunal s order is an oft repeated error or m anifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal s order raises new and im portant problems or issues of law of first im pression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a m atter of law, should be given substantial weight. With this standard in mind, we proceed to consider whether it was proper for the lower court to order removal of the infant from Petitioners home. III. Discussion Petitioners assert that the lower court was exceeding its legitimate authority by ordering the rem oval of B. G.C. from their home for placement in a traditional home which the court defined as headed by a m other and a father. Respondentasserts that rem oval was legally required under the circumstances before it because: (1) Petitioners as a couple 12 are not permitted to adopt a child under the provisions of the adoption statute, and (2) the number of children residing in Petitioners foster home exceeded the statutory limit. It is upon these legal foundations that Respondent m aintains that it was necessary to order removal of the child from the home. Respondent further contends it also was appropriate to order placement of B.G.C. w a suitable married couple inte ith rested in adoption given the legislative preference expressed in the adoption statutes for adoption by married couples. A. Removal As to Respondent s first ground for rem oval, it is not at all clear that the issue of joint adoption by unmarried parties was before the court. Itis important to keep in mind that the purpose of the permanency hearing in an abuse and neglect case is to determ what ine type of permanent placement would provide the level o f cu stody, care, commitment, nurturing and discipline that is consistent with . . . [a] child s best interests. State v. Michael M., 202 W.Va. 350, 358, 504 S.E.2d 177, 185 (1998). And although adoption is the preferred permanent placement for a ch when parental rights are term ild inated,14 it is but one permanent placement option which DHHR may recommend in its permanency plan.15 Syl. Pt. 2, State v. Michael M., supra. 14 See W.Va. Code § 49-6-5a (2007) (S upp. 2008); R. 41, W. Va. Rules of Procedure for C hild Abuse and Neglect (idenifying possible perm t anent living arrangem ents which may be recommended in abuse and neglect cases as returning a child to parent(s), adoption, placement of a child with fit and a willing relative, a legal guardian or in another planned permanent arrangement, including institutional settings). 15 13 It was made abundantly clear during the course of the hearings in the present case that the permanency plan is designed to recom mend a general c ourse of action regarding future placement of a child after parental rights ha ve been terminated, and that it would be premature for DHHR to recom mend a particular adoptive home at the permanency hearing. Certainly, DHHR has the responsibility to develop a permanent placement plan for a child 16 a contemporaneously with reunification efforts, but the det ils of the plan necessarily depend on the course of action the court determ ines to be most suitable under the circum stances. According to the testim ony of DHHR workers, a particularized plan for a child whose recommended permanent placement is an adop home would not becompleted until after tive the child s case is transfe rred to DHHR s adoption unit be cause the agency s operations involving adoptive home selection are run separately from DHHR s operations involving services for abuse and neglect victims. We further note that although Petitioners may have indicated the desire to m B.G.C. a perm ake anent part of their household, there was no form al joint or individual request foradoption pending before the courtat the permanency hearings. This Court has clearly and consistently maintained that [c]ourts are not constituted for the purpose of making advisory decrees or resolving academic disputes. Mainella v. Board of Trustees of Policemen s Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943). Syl. Pt. 2, in part, Harshbarger 16 Syl. Pt. 5, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). 14 v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991). It was thus inappropriate for the lower court to rule as a matter of law on the subjectof the propriety of joint adoption of a child by a s ame s ex couple beca use i t w as not a m atter pe nding be fore t he c ourt. M oreover, Petitioners have represented to this Court that joint adoption is not being sought, and Ms. Kutil has informed DHHR of her interest in adopting B.G.C. as a single person. We next consider whether overcapac ity suffices as a ground for rem oval of B.G.C. from her hom e. As was noted ear lier, there were seven children residing in Petitioners foster home during the time period when both permanency hearings occurred. Whether the upper limit for the number of children who may reside in a foster home is five 18 a or six,17 Petitioners foster home was overcapacitynd the situation neededto be corrected. Our concern lies with the manner in which the problem was rectified. In its response to the pe ding writ of prohibition, DHHR stated that the change n in the agency s pos ition regarding rem oval of B.G.C. only oc curred because of overcrowding at Petitioners home and the rea dy availability of a foster home that was See supra n. 7. 17 We find it disconcerting that DHHR just discovered the overcapacity issue on the date of the hearing whenthe agency had created the ituation by placing what appears s to have been more than one child in th e home a month earlier. Even accepting DHHR s representation that the worker who handled the last placement in the home misunderstood relevant procedures, it is certainly not clear why it took a month for the agency to uncover this problem. 18 15 willing and capable at the time to accept the infat, . . . . [and the agency] did not at that time n have a placement available for children who were most reently placed in the Petitioners the c home. DHHR then added, Nowhere has WVDHHR indicated that the home provided by Petitioners was anything other th loving and nurturing. Desp the number of times that an ite this Court has stated the best interest of the child is the polar star upon which decisions involving children are to be based,19 DHHR did not even consider whether the individual needs of B.G.C. would be best served by removing her from Petitioners care, but instead opted for a swift and ready solution to the problem the agency created. The agency simply turned a blind eye to the fact that B.G.C. ha d been placed in the foster hom e a number of months before some of the other children then in the home, and ignored any consideration of the im pact relocation w ould have on B.G.C. s em development. By following the lead of otional, physical and m DHHR, the lower court erred in n examining the individual needs of B.G.C. as well as of the othe ental ot clo sely r children placed in Petitioners home to determine how the best in terests of all the children would be served while remedying the overcapacity problem of the foster home. No evidence was produced atthe hearings as to Peitioners providing anything t but quality care in their fosterhome, or of any par icular problems B.G.C. was experiencing t in her foster home environm ent. Consequently, the m ain concern in solving the See In re Erica C., 214 W.Va. 375, 380, 589 S.E.2d 517, 522 (2003) (numerous cases listed). 19 16 overcrowding problem should have been what affect the disr uption of relocation would have on the emotional and physical we ll-being of the individual child in the hom The length ren e. of time each of the foster children was in th home no doubt would affectthe strength of the e emotional bond that had develope between each child and Petiti ners as well as their sense d o of comfort and security with their home e nvironment. The only home B.G.C. had ever known in the eleven months of her life had been Petitioners foster home. Surely bonding had occurred between the infant and Petitioners to a much larger extent than with children who had lived in the household for a much shorter period of time. We have been clear in pointing out that [t] he best interests of a child are served by preserving im portant relationships in that child s life. Syl. pt. 2, State ex rel. Treadway v. McCoy, 189 W.Va. 210, 429 S.E.2d 492 (1993). This concern extends to the relationship a child in foster care has with foster parents. As we held in syllabus point eleven of re Jonathan G., 198 W.Va. In 716, 482 S.E.2d 893 (1996), [a] child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child. Cf. In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005) (recognizing that a foster parent may attain the status of ps ychological parent when the re lationship is not tem porary in duration and exists with the consent and en couragement of a child s legal parent or guardian). The GAL contends that because B.G.C. is a child under theage of two she is less apt to have bonded with her foster parent s. He relies on language we quoted from 17 a Pennsylvania Superior C ourt in our decision in West Virginia Department of Human Services v. La Rea Ann C.L., 175 W.Va. 330, 332 S. E.2d 632 ( 1985) t o s upport t his proposition. This reliance is misplaced. The fundamental issue decided inLa Rea Ann C.L. is that a m inor parent s right to revoke th e relinquishment of child custody ceases to be absolute when an unreasonable period of tim e has passed. Id. at Syl. Pt. 2. We further determined that in such circumstances the be interests of the child not only be considered st but be given primary importance. Id. The case was then remande with instruction to the d trial court to receive evidence to make a fi nding of fact on the child s best interests presently. Id. at 337, 332 S.E.2d at 638. Thus, whether a given child has bonded with a parental figure is a question of fact. The situation before us involves a re moval decision where the foster home environment or care provided in a foster home is not in question, and removal of a child is necessary to correct problem s created by burea ucratic error. When presented with such situations, courts need to safeguard the best interests ofthe children by examining evidence of the emotional, physical and mental needs of the individual children under the particular circumstances of a case, and then balancing the relative interests of the children in order to decide which child or children would be less tr aumatized or detrimentally affected by being removed from the home. No such examination or balancing occurred in the present case. However, even though the relevant analysis re garding the best interests of the children 18 placed in Petitioners home is a significant oversight, it is unnecessary for the lower court to further address that issue as we have been informed that the overcrowding problem has been resolved. During oral argument in this case, the Court wa told that the foster home is s no longer overcapacity, with only five childre n, including B.G.C., presently residing in Petitioners home. Consequently, removal of B.G.C. to resolve an overcrowding problem is moot. In consideration of the foregoing discussion of the grounds upon which Respondent ordered removal of B.G.C., such action constituted clear error and the writ of prohibition is granted on the removal issue. B. Adoption Finding no merit in the grounds for rem oval asserted by Respondent, we m ust also consider Respondent s cont ntion that removal of B.G.C. to a foster hom representing e e a more traditional family unit consisting of a married mother and father who are interested in adoption furthers a legislative preference expressed in the adoption statutes. West Virginia Code § 48-22-201 (2001) (Repl. Vol. 2004) provides that [a]ny person not m arried or any person, with his or spouse s consent, or any husba and wife jointly, may petition nd a circuit court of the county wherein such pe rson or persons 19 reside for a decree of adoption of minor child or person who any may be adopted by the petitioner or petitioners. The statute thus sets forth three classificati ns of persons who may adopt: (1) an unmarried o person; (2) a m arried couple jointly, and (3 ) an individual in a m arriage whose spouse consents. Although Respondent recognized that each Petitioner may individually petition to adopt under the statute, he asserts in his brief that the statutes indicate a preference for adoption by married couples. No statutory citation was supplied to support this position and o ur research reveals no such stated preference. Nor were we able to locate any legislatively assigned preference for adopti on into a traditional hom e or any statutory definition of a traditional hom for adoption purposes. As is e evident from the clear language of West Virginia Code § 48- 2-201, there is no prioritizati n among the three classifications 2 o of those eligible to a dopt a child in this state. A st atutory provision which is clear and unambiguous and plainly expresses the legislativ intent will not be interpreted by the courts e but will be given fu ll force and effect. Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).20 The only express legislative preferences have found withparticular regard we to adoption of children in the legal custody of the State involve grandparents and reunification of siblings. Specifically, West Virginia Code § 49-3-1 (a)(3) establishes that a grandparent or grandparent s found to be both suitable and willing to adopt a child in DHHR s custody be given prior ity over o ther prospective adoptive parents, and West Virginia Code § 49-2-14 (e) & (f) expresses the preference that DHHR reunite siblings for either foster care or adoption purposes if sucharrangement is available and is determined to be in the best interests of the children.Neither of these preferences are automatic, however, as they turn on the best interests of the child who is the candidate for adoption. 20 20 Notwithstanding Respondent s and GAL s suggestions to the contrary, there simply is no legislative differe tiation between categories of eigible candidates for adoption n l under the terms of West Virginia Code § 48-22-201. Such policy determination is clearly a legislative prerogative, outsideof the purview of the courts.The primary concern of courts in adoption cases is whethe r there is evidence that the recom mended adoptive hom e possesses the necessary attributes to meet theindividual and specific needs of the child both at present and in the future.21 C. Summary Central to our deliberation in this case is the reason or m otivation underlying Respondent s decision to remove a child from her foster care home. The motion to remove the child was not supported by any allegation th t B.G.C. was receiving im a proper or unwise care and management in her foster hom or that she was being subjected to any other legally e, recognized undesirable condition or influence. W.Va. Code § 49-2-12 (1970) (Repl. Vol. 2004); see also W.Va. Code § 49-2-14 (2002) (Repl. Vo 2004) (criteria and procedure for l. removal of child from foster home). Likewise, no evidence supporting a legal reason for removing the child was presented at the hearings. As a matter of fact, the court was never presented with any actual ev aluation of the home or evid ence of the quality of the Our discussion in this case doe not extend to equal protec considerations s tion because Petitioners did not raise that argument during the course of the proceedings below nor did they pursue it once raised in this prohibition proceeding. 21 21 relationship B.G.C. had with Petitioners.Moreover, Respondent defe rred hearing testim ony from Petitioners witnesses regarding their paren ting abilities. Nevertheless, there also was no in dication that Petitioners provided B.G.C. with anythi ng other than a loving and nurturing home. As Responde nt observed from the bench at the Novem ber 21 hearing, there has been absolutely no alegation that these wom have not cared for [B.G.C.] or the l en other kids and, in fact, all of the evidence indicates that they have done very well and have provided very well for the children. Without any information that thefoster care placement with Petitioners was not proceeding well, there was no legal reason for the court to remove B.G.C. from the only home she has known. It is more than apparent that th e only reason why Petiti oners were being replaced as foster care providers was to prom the adoption of B. .C. by what Respondent ote G called in his Novem ber 12, 2008, order a tra ditionally defined fam ily, that is, a fam ily consisting of both a mother and a father. It was only by addressing issues he anticipated would develop and believed would be problems at a later point in this case that Respondent was even able to reach the subject of this c onclusion. The conclusion itself thus represents a blurring of legal principlesapplicable to abuse and neglec and adoption. Moreover, even t if our current statutes, rules and regulationscould somehow be read to support the adoption preference propos ed by Re spondent, s uch a ne wfound pr inciple woul d ne ed t o be harmonized with established la w. Under our curre nt law which encourages adoption by 22 qualified foster parents, one of the Petitioners seeking to adopt B.G.C. individually would at the very least need to be considered if not favored in the selec tion of the prospective adoptive home.22 In the present case, all indications thus far are that B.G.C. has formed a close emotional bond and nurturing relationship with her foster parent s, which can not be trivialized or ignored. State ex rel. Treadway v. McCoy; In re Jonathan G. As such, it serves as a classic exam ple of a case in wh ich the perm anency plan for adoption should move quickly to the desired result of a permanent home for B.G.C. One of the Petitioners who has already adopted a child 23 and appreciates the tremendous responsibility adoption entails, has recently expressed the desire toadopt B.G.C. Clearly,that Petitioner should not be excluded from considerati on for the reason stated by Respondent. These factors all should serve to facilitate the selection process, which needs to be completed as expeditiously as possible in order to further the best interests of B.G.C. and in recognition and support of the parenting investment which has been made. IV. Conclusion See State ex rel. Treadway v. McCoy, 189 W.Va. at 213, 429 S.E.2d at 495; cf. In re Jonathan G., 198 W.Va. at 735, 482 S.E.2d at 913. 22 See supra n. 6. 23 23 For the reasons stated in this opi nion, the writ of prohibition sought by Petitioners is granted. Writ of prohibition granted. 24 APPENDIX TIMELINE OF SIGNIFICANT OCCURRENCES 12-8-07 B.G.C. born testing positive for cocaine & oxycodone. 12-11-07 Abuse & neglect [A&N] petition filed. 12-13-07 DHHR granted legal custody of B.G.C.; GAL appointed for B.G.C. 12-24-07 B.G.C. placed in foster home of Petitioners after discharge from hospital. 1-24-08 GAL filed a Motion to Order DHHR to Remove Child from Physical Placement in Homosexual Home & Other Injunctive Relief. 10-28-08 MDT m eeting held and report issued f inding adopt ion of t he c hild a s t he acceptable disposition; report reflectsDHHR Adoption Supervisor informed MDT members that, although she must ensure that [B.G.C.] is doing well in her present placement , there would be no reason for the Adoption Unit to move her due to fam ily members and siblings being previously ruled out. The report goes on to say that the supervis r further stated that the Adoption o Unit would be reluctant to uproot a child from the only home she knows. 10-31-08 Date on which DHHR placed sevent h child in Petitioner s hom e [a foster home s maximum capacity is set at 5 or 6 foster children]. 11-5-08 Order terminating parental rights of B.G.C. s mother; the parental rights of both the mother and unknown father were terminated at a dispositiona hearing l held on October 8, 2008. 11-6-08 Permanency hearing in A&N case [DHHR recommends adoption]. 11-12-08 First order of rem oval entered [directing that child be transitioned to a traditional home within two weeks]. 11-17-08 Foster parents (Petitioners)file pe tition for writ of prohibition in Supreme Court. 11-18-08 Circuit court order staying the November 12, 2008, order of removal. 11-21-08 Resumption of permanency hearing, including consideration of GAL motion to remove the child from the homosexual home. At the conclusion of the 25 hearing the lower court ordered DHHR to remove B.G.C. from Petitioners home by noon the following day (Novem ber 22, 2008), and continue foster care placement of the ch ild in the home of a prospective adoptive married couple identified during the hearing. [Petitioners complied with the order and B.G.C. was delivered with her belongings to the prospective adoptive home on November 22.] 11-24-08 Motion to Supreme Court for emergency stay. 11-26-08 Prospective adoptive married couple informed DHHR they would not adopt B.G.C. The child was returned to Petitioners home later in the day after the motion for the emergency stay was granted by this Court. 12-2-08 Second order of rem oval m emorializing he aring of N ovember 21, 2008, entered. The order directed DHHR to move the child from Petitioners home because Petitioners were n ot eligible to adopt the child together under the adoption statute and the number of fo ster children in Petitioners home was over the capacity limit. Lower court ite rated in this order that it was most appropriate to B.G.C. s best interests to be placed in a traditional home with a married mother and father pending the adoption process. 12-9-08 Supreme Court Order granting petition. 26

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