W. Va. High Court on Placing Children with Amish Foster Families

From Thursday's decision in In re M.B. (written by Chief Justice William Wooton):

The petitioner ("the petitioner") is the guardian ad litem of M.B., a two-year-old child who has been in the continuous care of the … foster parents … since shortly after his birth. The petitioner appeals from the February 29, 2024, order entered by the Circuit Court of Kanawha County, West Virginia, denying her motion to remove M.B. from the foster parents' home, arguing that because his placement in the home cannot lead to permanency, i.e., adoption, it would be in his best interest to be placed with another family that can offer him permanency.

The petitioner offers several bases for her contention that the foster placement here cannot lead to permanent placement. First, the petitioner contends that the foster parents, being members of an Old Order Amish community, would restrict M.B.'s formal education to grades one through eight and thus deprive him of his constitutional right to a thorough and efficient education. The petitioner also argues that remaining with Amish foster parents would not be in M.B.'s best interests because he would not have regular pediatric checkups, would not be vaccinated, would not be exposed to technology, and would not learn to drive. Finally, the petitioner suggests that M.B.'s adoption into the Amish community is problematic, at best, in that the community might not welcome a biracial child.

The respondent, the West Virginia Department of Human Services, and the foster parents, argue that to the contrary, it is in M.B.'s best interests to remain in what all parties acknowledge to be a loving home with the foster parents and his three siblings, who are part of the family unit…. [W]e affirm the circuit court's denial of the petitioner's motion to remove M.B. from the foster parents' home….

[A.] M.B.'s Right to Formal Education Past the Eighth Grade

We begin by recognizing that this issue is unique: whereas the relevant precedents guiding our consideration all involve the right of parents to the free exercise of their religion versus the interest of a state in establishing and enforcing educational standards, this case involves the right of a child to receive an education that meets this State's educational standards. In this regard, the United States Supreme Court acknowledged this distinction in Wisconsin v. Yoder (1972), noting that

[t]he dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires[.]

In contrast, here the petitioner, M.B.'s guardian ad litem, acting on his behalf, is a party to this appeal and advocates for what she claims to be his … statutory right to a high school education….

Thus, we turn to the petitioner's statutory claims, which first requires us to examine the FCBR [Foster Child Bill of Rights] …:

(a) Foster children and children in a kinship placement are active and participating members of the child welfare system and have the following rights:

(1) The right to live in a safe and healthy environment, and the least restrictive environment possible;

(2) The right to be free from physical, sexual, or psychological abuse or exploitation including being free from unwarranted physical restraint and isolation.

(3) The right to receive adequate and healthy food, appropriate and seasonally necessary clothing, and an appropriate travel bag;

(4) The right to receive medical, dental, and vision care, mental health services, and substance use treatment services, as needed;

(5) The right to be placed in a kinship placement, when such placement meets the objectives set forth in this article;

(6) The right, when placed with a foster of kinship family, to be matched as closely as possible with a family meeting the child's needs, including, when possible, the ability to remain with siblings;

(7) The right, as appropriate to the child's age and development, to be informed on any medication or chemical substance to be administered to the child;

(8) The right to communicate privately, with caseworkers, guardians ad litem, attorneys, Court Appointed Special Advocates (CASA), the prosecuting attorney, and probation officers;

(9) The right to have and maintain contact with siblings as may be reasonably accommodated, unless prohibited by court order, the case plan, or other extenuating circumstances;

(10) The right to contact the department or the foster care ombudsman, regarding violations of rights, to speak to representatives of these offices confidentially, and to be free from threats, retaliation, or punishment for making complaints;

(11) The right to maintain contact with all previous caregivers and other important adults in his or her life, if desired, unless prohibited by court order or determined by the parent, according to the reasonable and prudent parent standard, not to be in the best interests of the child;

(12) The right to participate in religious services and religious activities of his or her choice to the extent possible;

(13) The right to attend school, and, consistent with the finances and schedule of the foster or kinship family, to participate in extracurricular, cultural, and personal enrichment activities, as appropriate to the child's age and developmental level;

(14) The right to work and develop job skills in a way that is consistent with the child's age and developmental level;

(15) The right to attend Independent Living Program classes and activities if the child meets the age requirements;

(16) The right to attend court hearings and speak directly to the judge, in the court's discretion;

(17) The right not to be subjected to discrimination or harassment;

(18) The right to have access to information regarding available educational options;

(19) The right to receive a copy of, and receive an explanation of, the rights set forth in this section from the child's guardian ad litem, caseworker, and attorney;

(20) The right to receive care consistent with the reasonable and prudent foster parent standard; and

(21) The right to meet with the child's department case worker no less frequently than every 30 days.

Focusing on subsections (a)(13) and (18) of the FCBR, the petitioner argues that M.B.'s continued placement with Amish foster parents will deprive him of his statutory right to attend school—specifically, high school—and his right of access to information about available educational options, thus mandating his removal from the foster parents' home. We disagree. The petitioner appears to view each and every provision of the FCBR as mandatory, i.e., one strike and you're out. However, our precedents make clear that with the exception of subsections (a)(1), (2), and (3), the provisions of the FCBR constitute an interwoven set of factors to be considered and weighed in making a determination of whether a foster child's placement is in his or her best interests….

[B.] M.B.'s Right to Medical Care and Vaccinations

The petitioner next alleges that pursuant to the FCBR, M.B. has a right to medical care—care that he will not receive because the foster father testified that the Amish community does not have a doctor, that children are taken to the doctor only in situations where home health remedies are clearly inadequate, and that community members do not routinely vaccinate their children. We reject this claim both on legal and factual grounds.

First, as discussed supra …, an allegation that the placement of a child will result in a deprivation of a right enumerated in subsections (a)(4) through (21) of the FCBR does not, in and of itself, mandate removal from the placement; rather, the facts and circumstances are to be considered and weighed by the circuit court together with all other facts and circumstances supporting, or not supporting, the placement.

Second, the facts of this case simply do not support the petitioner's allegations that M.B. has been or will be denied medical care. The evidence of record shows that the foster parents have scrupulously abided by all of the DHS's requirements, taking M.B. for regular medical checkups, having him vaccinated, taking him to a specialist for treatment and a surgical procedure to correct bilateral hydronephrosis, and giving him all prescribed medications therefor. Further, the undisputed testimony of the foster father was that he and the foster mother would continue to seek medical care for the child when necessary and would consider additional vaccinations if they had reason to believe that those vaccinations would be efficacious.

Third, the petitioner points to no statutes or case law supporting her claim that "medical care," as the term is used in West Virginia Code section 49-2-126(a)(4), mandates regularly scheduled preventative medical checkups for children and/or vaccinations for children who will not be attending public school….

[T]he circuit court considered and weighed all of the evidence presented and concluded that placement with the foster parents would not result in the denial of M.B.'s right to medical care. Again, the court's findings of fact and conclusions of law are amply supported by the evidence of record, and we therefore will not disturb the court's ruling.

[C.] M.B.'s Placement With a White Family …

In his testimony, the foster father acknowledged that the foster parents had expressed a preference for White children but explained that they did so out of a concern that the Amish community might not accept children of another race, a concern which proved to be wholly unfounded. {The foster father testified that the community had been completely accepting of, and welcoming to, all four of the children.} The foster father further testified that if this ever changed, i.e., if the community became less accepting or welcoming as time went on, the family would move to another community. Finally, notwithstanding any initial hesitation they may have had, the fact is that the foster parents went ahead and welcomed four mixed-race children into their home, have adopted three of them, and hope to adopt M.B. as well.

We reject any suggestion by the petitioner that the foster parents' initial stated preference for a White child should somehow disqualify them from providing a home for children of other races or ethnicities, or that they in any way have denied M.B. a safe and healthy environment. The evidence in this case is undisputed that the foster parents have provided M.B. and his sisters with what the special commissioner characterized as a "loving and spiritual" home….

Each of the other four Justices on the five-Justice court wrote separate concurrences. Justice Thomas Ewing's and Justice Haley Bunn's concurrences stressed the importance of keeping the child with (to quote Justice Bunn) "the only family he has ever known." Senior Justice John Hutchison's concurrence likewise took a similar approach: "There was no showing by anyone establishing that it was in M.B.'s best interest to remove him from his foster home or that any of the other statutory requirements … were present."

Justice Charles Trump's concurrence stressed that Wisconsin v. Yoder (1972) was irrelevant here:

In holding that Wisconsin could not compel Amish parents to send their children to school beyond the eighth grade, the Supreme Court [in Yoder] made clear that its decision was based on the combination of the parents' free exercise rights … with the parents' [substantive] due process rights …. The case before us does not involve parental due process rights. Rather, the circuit court was tasked with deciding whether M.B. should remain in a foster placement with his foster parents who, like the parents in Yoder, also happen to be Amish…. Yoder involved a state's attempt to regulate the choices that parents may make concerning their own children's education; the case in front of us does not….

[F]oster parents do not have parental due process rights, such as the right "to direct the religious upbringing" of foster children whom the State places in their care. Foster children remain in the legal custody of the DHS while they are in a foster placement, and the rights and duties of the foster parents are contractually defined in an agreement between the foster parents and the DHS….

Wyclif Farquharson represents the state and Aimee N. Goddard (Legal Aid of West Virginia) represents intervenors.