In re H.W. ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________ June 14, 2022
released at 3:00 p.m.
No. 21-0545 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE H.W.
_____________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Tera L. Salango, Judge
Juvenile Action No. 19-JA-748
AFFIRMED
_____________________________________________
Submitted: May 17, 2022
Filed: June 14, 2022
Joseph H. Spano, Jr., Esq. Patrick Morrisey, Esq.
Pritt & Spano, PLLC Attorney General
Charleston, West Virginia Brittany N. Ryers-Hindbaugh, Esq.
Attorney for the Petitioners, Assistant Attorney General
Foster Parents N.S. and C.S. Charleston, West Virginia
Attorneys for the Respondent,
West Virginia Department of Health
and Human Resources
Sandra K. Bullman, Esq. J. Rudy Martin, Esq.
Bullman and Bullman Charleston, West Virginia
Charleston, West Virginia Guardian ad Litem for the Minor Child,
Attorney for the Respondent, H.W.
Mother B.S.
JUSTICE BUNN delivered the Opinion of the Court.
JUSTICES WALKER and WOOTON concur and reserve the right to file separate
opinions.
SYLLABUS BY THE COURT
1. A circuit court’s decision on an individual’s motion for permissive
intervention in a child abuse and neglect proceeding pursuant to West Virginia Code § 49-
4-601(h) (2019) is reviewed under a two-part standard of review. We review de novo
whether the individual seeking permissive intervention was afforded “a meaningful
opportunity to be heard” as required by West Virginia Code § 49-4-601(h), and we review
for an abuse of discretion a circuit court’s decision regarding the “level and type of
participation” afforded to individuals seeking permissive intervention, i.e., foster parents,
pre-adoptive parents, and relative caregivers, pursuant to Syllabus point 4, in part, State ex
rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
2. “Foster parents are entitled to intervention as a matter of right when
the time limitations contained in West Virginia Code § 49-4-605[(a)(1)] (2017) and/or
West Virginia Code § 49-4-610(9) (2015) are implicated, suggesting that termination of
parental rights is imminent and/or statutorily required.” Syllabus point 7, State ex rel. C.H.
v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
3. “Where the language of a statute is plain and unambiguous, there is
no basis for application of rules of statutory construction; but courts must apply the statute
according to the legislative intent plainly expressed therein.” Syllabus point 1, Dunlap v.
State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965).
i
4. “Foster parents, pre-adoptive parents, or [sic] relative caregivers who
occupy only their statutory role as individuals entitled to a meaningful opportunity to be
heard pursuant to West Virginia Code § 49-4-601(h) (2015) are subject to discretionary
limitations on the level and type of participation as determined by the circuit court.”
Syllabus point 4, in part, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540(2018).
5. “The controlling standard that governs any dispositional decision
remains the best interests of the child.” Syllabus point 4, in part, In re B.H., 233 W. Va. 57,
754 S.E.2d 743 (2014).
ii
Bunn, Justice:
Petitioners herein, foster parents N.S.1 and C.S. (“Foster Parents”), appeal
the order entered by the Circuit Court of Kanawha County on June 22, 2021, denying their
motion to intervene in the underlying child abuse and neglect proceedings involving the
minor child, H.W. By that order, the circuit court reunified the child with her mother,
Respondent B.S. (“Mother”), and, in doing so, denied the Foster Parents’ motion to
intervene. On appeal to this Court, the Foster Parents contend that the circuit court erred
by denying them intervenor status and reunifying the child with the Mother rather than
allowing the child to remain with her siblings in the Foster Parents’ home. Upon a review
of the parties’ arguments, the appendix record, and the pertinent authorities, we affirm the
circuit court’s order. The circuit court correctly denied the Foster Parents’ motion to
intervene in the underlying child abuse and neglect proceedings to avoid delaying the
child’s achievement of permanency through reunification with the Mother. 2
1
In matters such as the case sub judice that involve sensitive facts, we use
initials, rather than full names, to refer to the parties. See, e.g., In re K.L., 241 W. Va. 546,
548 n.1, 826 S.E.2d 671, 673 n.1 (2019); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d
163, 165 n.1 (2016). See also W. Va. R. App. P. 40(e) (restricting use of personal identifiers
in cases involving children).
2
Although the Foster Parents also assign error to the circuit court’s
dispositional decision reunifying the child with the Mother, we find that, because the circuit
court properly denied their motion to intervene, the Foster Parents, as non-parties, do not
have standing to challenge the merits of this disposition of the child abuse and neglect
proceeding on appeal, and, therefore, this issue is not properly before the Court for decision
in this case. See Section III, infra.
1
I.
FACTUAL AND PROCEDURAL HISTORY
Prior to the underlying abuse and neglect proceeding, in 2018, the Mother’s
parental rights to two older children were involuntarily terminated; it appears that the
children were younger than two years old at the time of termination. Both of these children
were adopted by their paternal biological grandparents, who are Petitioners/Foster Parents
in the instant proceeding.
In late 2019, the Mother gave birth to H.W., the child at issue in this case.
Throughout her pregnancy with H.W., the Mother tested positive for methamphetamine.
As a result of the prior involuntary termination of the Mother’s parental rights to H.W.’s
sisters in the previous abuse and neglect case, in addition to the Mother’s apparent
substance abuse addiction, the additional Respondent herein, the West Virginia
Department of Health and Human Resources (“DHHR”), filed the underlying abuse and
neglect petition, removed H.W. from the Mother’s care, and placed the child with the
Foster Parents. 3 In February 2020, the Mother stipulated to the petition’s allegations. The
3
All three children—H.W. and her two siblings who have been adopted by
the Foster Parents—have the same biological mother and father, and, thus, the Foster
Parents who are the siblings’ paternal biological grandparents also are H.W.’s paternal
biological grandparents. As H.W.’s grandparents, identifying the Foster Parents as the
child’s “relative caregivers,” rather than as her “foster parents,” might have been more
accurate to describe this familial relationship. However, because the Foster Parents have
characterized themselves as the child’s “foster parents”; none of the parties to this appeal
challenge this nomenclature; and the intervention statute includes “[f]oster parents” and
“relative caregivers” in the same category of individuals, it is not necessary to
2
circuit court then adjudicated the Mother as abusive and/or neglectful and granted her a
post-adjudicatory improvement period, which it extended in September 2020.
In May 2021, after the child had been in the Foster Parents’ care for
approximately seventeen months, the Foster Parents moved to intervene. The circuit court
conducted a hearing on the Foster Parents’ intervention motion in June 2021, and
ultimately held their motion in abeyance but permitted the Foster Parents’ attorney to
“monitor and participate” in the dispositional hearing. The Foster Parents’ attorney did not
object to this arrangement. Two weeks later, the circuit court held the dispositional hearing,
and found that the Mother had corrected the conditions of abuse and neglect, ordered that
the child be reunified with the Mother, and denied the Foster Parents’ motion to intervene.
Specifically, the circuit court explained its rulings as follows:
The [c]ourt FINDS that reunification is in the best
interest of the minor child. The [c]ourt further FINDS that the
timeframes contemplated by W. Va. Code § 49-4-111(b)(3)
and State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d
540 (2018)[,] have been specifically and directly impacted by
lapses in services due to the COVID-19 pandemic and through
no fault of Respondent Mother. The [c]ourt FINDS that
Respondent Mother substantially complied with all remedial
and reunification services, thereby correcting the conditions
giving rise to the filing of the Petition.
....
Accordingly, the motion of [C.S.] and [N.S.] to
intervene is DENIED.
recharacterize Petitioners for purposes of our decision in this case. See W. Va. Code § 49-
4-601(h) (2019).
3
(Emphasis in original). The Foster Parents now appeal from the circuit court’s June 22,
2021 order memorializing these rulings.
II.
STANDARD OF REVIEW
The case sub judice comes to this Court on appeal from the circuit court’s
order denying the Foster Parents’ motion to intervene in the underlying child abuse and
neglect proceedings. Although we have previously considered whether a circuit court erred
by denying a motion to intervene in a child abuse and neglect proceeding, we have not
adopted a standard of review that is specifically applicable to this issue. The right to
intervene in an abuse and neglect proceeding is governed by statute, 4 and we have
previously applied the general standard of review that governs our consideration of
statutory law. 5 See, e.g., In re P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020); In re L.M.,
235 W. Va. 436, 774 S.E.2d 517 (2015). While proper, this standard does not specifically
address motions to intervene in the context of child abuse and neglect proceedings.
4
See W. Va. Code § 49-4-601(h) and text, infra, at Section III.
5
See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo standard of review.”).
4
In other cases, we have used the general abuse and neglect standard of
review, 6 which is somewhat at odds with the procedural posture of this case. See, e.g., In
re N.S., No. 21-1003, 2022 WL 1505971 (W. Va. May 12, 2022) (memorandum decision);
In re A.R., No. 20-0775, 2021 WL 1549789 (W. Va. Apr. 20, 2021) (memorandum
decision). Here, the Foster Parents appeal both from the circuit court’s ruling denying their
motion to intervene, which they are permitted to do, and from the circuit court’s
dispositional decision of reunification, which, as non-parties to these proceedings, the
Foster Parents are not permitted to challenge on appeal. 7 Thus, because the general
standard of review for child abuse and neglect proceedings applies to decisions on the
merits of those cases, it does not squarely address the issue of the circuit court’s denial of
the Foster Parents’ motion to intervene.
6
See Syl. pt. 1, In Int. of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177(1996) (“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.”).
7
For further explanation of the limits of the Foster Parents’ appellate rights
in this case as individuals who requested, but were denied, intervenor status, see Section
III, infra.
5
Although we have adopted standards of review governing motions to
intervene in civil cases generally, 8 we have also acknowledged that, because the right to
intervene in child abuse and neglect proceedings is specifically granted by statute, “the
West Virginia Rules of Civil Procedure regarding intervention generally do not apply to
abuse and neglect proceedings under Chapter 49.” State ex rel. C.H. v. Faircloth, 240
W. Va. 729, 736 n.12, 815 S.E.2d 540, 547 n.12 (2018) (citation omitted). Thus, by
extension, the civil motion to intervene standards of review do not apply to motions to
intervene in the abuse and neglect context. Nevertheless, insofar as we found the Rules of
Civil Procedure regarding intervention instructive to our analysis of the merits of a motion
to intervene in a child abuse and neglect proceeding, see id., we likewise look to our civil
motion to intervene standards of review for guidance in determining the proper standard of
review applicable to our consideration of the circuit court’s denial of the Foster Parents’
motion to intervene in the underlying abuse and neglect proceeding.
In adopting our standards of review for motions to intervene in the civil case
context, we differentiated between the standard of review that is applicable to a permissive
motion to intervene and that which is applicable to a motion to intervene as a matter of
8
See Syl. pts. 2 and 3, SWN Prod. Co., LLC v. Conley, 243 W. Va. 696, 850
S.E.2d 695 (2020) (Syl. pt. 2: “A circuit court’s decision on an applicant’s request for
permissive intervention under Rule 24(b) of the West Virginia Rules of Civil Procedure is
reviewed under an abuse of discretion standard.”; Syl. pt. 3: “The standard of review of
circuit court rulings on the elements governing a timely motion to intervene as a matter of
right under Rule 24(a) of the West Virginia Rules of Civil Procedure is de novo.”).
6
right. As to a permissive intervention motion in a civil case, we held that “[a] circuit court’s
decision on an applicant’s request for permissive intervention under Rule 24(b) of the West
Virginia Rules of Civil Procedure is reviewed under an abuse of discretion standard.” Syl.
pt. 2, SWN Prod. Co., LLC v. Conley, 243 W. Va. 696, 850 S.E.2d 695 (2020). Here, as
will be discussed further below, the Foster Parents also sought to intervene permissively
insofar as they are not within the category of individuals who are afforded intervention as
a matter of right under West Virginia Code § 49-4-601(h) (2019), and the requirements of
Syllabus point 7 of State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540, have
not been met in this case. However, we find the abuse of discretion standard applicable to
permissive civil motions to intervene to be ill-advised in the context of a permissive
intervention motion in the child abuse and neglect context. First, the rule establishing
permissive intervention in civil cases is couched in terms of the circuit court’s exercise of
its discretion, but the statute governing intervention in child abuse and neglect proceedings
has no such discretionary language. Compare W. Va. R. Civ. P. 24(b) with W. Va. Code
§ 49-4-601(h). See also SWN, 243 W. Va. at 702, 850 S.E.2d at 701 (noting that, “as to
permissive intervention, the text of Rule 24(b) governing permissive intervention
specifically invokes language directing courts to exercise their discretion in considering
issues of delay of the action or prejudice to the original parties”). West Virginia Code § 49-
4-601(h) directs that
[i]n any proceeding pursuant to this article, the party or
parties having custodial or other parental rights or
responsibilities to the child shall be afforded a meaningful
opportunity to be heard, including the opportunity to testify
and to present and cross-examine witnesses. Foster parents,
7
pre-adoptive parents, and relative caregivers shall also have a
meaningful opportunity to be heard.
(Emphasis added). See also Syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va.
445, 300 S.E.2d 86 (1982) (“It is well established that the word ‘shall,’ in the absence of
language in the statute showing a contrary intent on the part of the Legislature, should be
afforded a mandatory connotation.”). Because this statute employs mandatory language,
an individual seeking to permissively intervene in a child abuse and neglect proceeding has
“a meaningful opportunity to be heard,” W. Va. Code § 49-4-601(h), as long as that
individual is within the class of persons specifically afforded that right, i.e., “[f]oster
parents, pre-adoptive parents, and relative caregivers,” id.Second, unlike a rule-governed civil motion to intervene, the abuse and
neglect motion to intervene is governed by statute, and, typically, we review circuit court
rulings involving the interpretation of a statute de novo. See, e.g., Syl. pt. 1, Chrystal R.M.
v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal
from the circuit court is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review.”). See also Syl. pt. 1, Appalachian Power Co. v.
State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute
or an administrative rule or regulation presents a purely legal question subject to de novo
review.”).
8
Moreover, we also review anew a circuit court’s rulings applying the law to
the facts of a case: “We 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). Accord State ex
rel. United Mine Workers of Am., Loc. Union 1938 v. Waters, 200 W. Va. 289, 298, 489
S.E.2d 266, 275 (1997) (“[r]eviewing de novo a matter which calls for the application of
law to undisputed facts”); Lawrence v. Cue Paging Corp., 194 W. Va. 638, 641, 461 S.E.2d
144, 147 (1995) (per curiam) (“Inasmuch as the ruling of the circuit court on that point
involves an application of the law to the facts, our review of that ruling is de novo.”
(citations omitted)). See also Syl. pt. 1, in part, State ex rel. Cooper v. Caperton, 196
W. Va. 208, 470 S.E.2d 162 (1996) (“Generally, findings of fact are reviewed for clear
error and conclusions of law are reviewed de novo. However, ostensible findings of fact,
which entail the application of law or constitute legal judgments which transcend ordinary
factual determinations, must be reviewed de novo.”).
With respect to permissive intervention in child abuse and neglect
proceedings, we have held that “the level and type of participation” a circuit court affords
to “[f]oster parents, pre-adoptive parents, or [sic] relative caregivers . . . entitled to a
meaningful opportunity to be heard” is subject to the circuit court’s discretion. 9 Syl. pt. 4,
in part, Faircloth, 240 W. Va. 729, 815 S.E.2d 540. But the circuit court’s exercise of such
9
However, in certain circumstances, which we find do not exist in this case,
see Section III, infra, a foster parent may be entitled to intervention as a matter of right.
See Syl. pt. 7, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
9
discretion does not change the initial inquiry of whether the circuit court properly applied
the statutory law to the facts of the case to grant such individual “a meaningful opportunity
to be heard” in the first instance as required by § 49-4-601(h). In other words, this
mandatory statutory language does not allow a circuit court discretion regarding whether
“[f]oster parents, pre-adoptive parents, and relative caregivers” should be provided a
“meaningful opportunity to be heard,” but only as to whether the level and type of
participation provided to such individual should rise to full intervenor status. See W. Va.
Code § 49-4-601(h).
Therefore, we find a multifaceted standard of review of permissive motions
to intervene in child abuse and neglect proceedings to be more appropriate and consistent
with our prior precedent than the abuse of discretion standard we apply to civil motions to
intervene because a hybrid analysis is required by the mandatory statutory language and
our decisions affording circuit courts discretion in the application of that law to the fact
patterns of individual cases. Accordingly, we now hold that a circuit court’s decision on an
individual’s motion for permissive intervention in a child abuse and neglect proceeding
pursuant to West Virginia Code § 49-4-601(h) (2019) is reviewed under a two-part
standard of review. We review de novo whether the individual seeking permissive
intervention was afforded “a meaningful opportunity to be heard” as required by West
Virginia Code § 49-4-601(h), and we review for an abuse of discretion a circuit court’s
decision regarding the “level and type of participation” afforded to individuals seeking
permissive intervention, i.e., foster parents, pre-adoptive parents, and relative caregivers,
10
pursuant to Syllabus point 4, in part, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815
S.E.2d 540 (2018).10 Guided by this standard, we proceed to consider the parties’
arguments.
III.
DISCUSSION
On appeal to this Court, the Foster Parents assert two distinct assignments of
error. First, the Foster Parents contend that the circuit court erred by denying their motion
to intervene. Second, the Foster Parents argue that the circuit court erred by reunifying the
child with the Mother instead of terminating the Mother’s parental rights and continuing
the child’s placement with the Foster Parents where the child had been in foster care11 for
more than fifteen of the previous twenty-two months, as contemplated by West Virginia
Insofar as this case does not involve intervention in child abuse and neglect
10
proceedings as a matter of right, we need not address the standard of review applicable to
such a motion to resolve the matter presently before us. See infra Section III.
11
Throughout the limited appendix record in this case, the circuit court
repeatedly referred to Petitioners as “foster parents,” and the circuit court relied on this
characterization of their status when it ultimately denied their motion to intervene. See,
e.g., Dispositional Hearing Tr. 22, 24 (June 14, 2021); Motion to Intervene Hearing Tr. 12
(June 1, 2021); Order Denying Motion to Intervene 3 (June 22, 2021). The record before
us does not contain sufficient information upon which to reclassify Petitioners as a different
type of placement for H.W., such as relative caregivers, nor do the parties ask us to do so
in their arguments on appeal to this Court. See Syl. pt. 2, in part, Harshbarger v. Gainer,
184 W. Va. 656, 403 S.E.2d 399 (1991) (“Courts are not constituted for the purpose of
making advisory decrees or resolving academic disputes.” (internal citations and
quotations omitted)). Accordingly, we decide this case based on the characterization of
Petitioners by the circuit court, the parties, and the Petitioners, themselves, as the child’s
“foster parents.”
11
Code § 49-4-605(a)(1) (2018). In support of this argument, the Foster Parents claim that
continuing the child’s placement with them would have honored the sibling preference by
keeping H.W. in the same household with her two older sisters and served H.W.’s best
interests. All of the Respondents herein—the DHHR, the Mother, and the child’s Guardian
ad Litem—contend that the circuit court did not err in denying the Foster Parents’ motion
to intervene and reunifying the child with her Mother, and urge this Court to affirm the
circuit court’s rulings. We will address these assigned errors in turn.
We find no error in the circuit court’s denial of the Foster Parents’ motion to
intervene. In support of their argument, the Foster Parents rely on Syllabus point 7 of State
ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540, which provides that “[f]oster
parents are entitled to intervention as a matter of right when the time limitations contained
in West Virginia Code § 49-4-605[(a)(1)] (2017) and/or West Virginia Code § 49-4-610(9)
(2015) are implicated, suggesting that termination of parental rights is imminent and/or
statutorily required.” While the Foster Parents correctly assert that the temporal
requirements of these statutes had been met, they fail to acknowledge that the circuit court
found that the statutory exceptions to these time limits applied to the facts of this case.
Application of these exceptions curtails the requirement that the DHHR seek termination
of parental rights and impacts the right of the Foster Parents to seek intervenor status.
Before reaching the merits of the parties’ arguments, we first must review
the statutory framework within which they are raised. The Foster Parents’ ability to
12
intervene in the instant child abuse and neglect proceeding is governed by statute. See
generally W. Va. Code §§ 49-4-101 to -610 (2015 & Supp. 2021) (establishing statutory
framework for child abuse and neglect proceedings). See also In re K.L., 241 W. Va. 546,
553, 826 S.E.2d 671, 678 (2019) (observing that “[c]hild abuse and neglect proceedings
are governed by statute” (citations omitted)); In re Beth Ann B., 204 W. Va. 424, 427, 513
S.E.2d 472, 475 (1998) (referring to “statutory scheme applicable in abuse and neglect
proceedings”). West Virginia Code § 49-4-601(h) provides that,
[i]n any proceeding pursuant to this article, the party or
parties having custodial or other parental rights or
responsibilities to the child shall be afforded a meaningful
opportunity to be heard, including the opportunity to testify
and to present and cross-examine witnesses. Foster parents,
pre-adoptive parents, and relative caregivers shall also have a
meaningful opportunity to be heard.
(Emphasis added).
Because an individual’s right to intervene in child abuse and neglect
proceedings is established by statute, it is necessary to review the tenets of statutory
construction that will guide our determination of the Foster Parents’ right to the relief they
seek. We first consider and give effect to the intent of the Legislature in enacting the
statutory provision at issue. Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159
W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature.”). Where the language used by the
Legislature is plain, we need only apply the statute without further construction. In other
words, “[w]here the language of a statute is plain and unambiguous, there is no basis for
13
application of rules of statutory construction; but courts must apply the statute according
to the legislative intent plainly expressed therein.” Syl. pt. 1, Dunlap v. State Comp. Dir.,
149 W. Va. 266, 140 S.E.2d 448 (1965). Accord Syl. pt. 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and
plainly expresses the legislative intent will not be interpreted by the courts but will be given
full force and effect.”). Where, however, the legislative language is ambiguous, we must
construe the statutory language before we can apply it. Syl. pt. 1, Farley v. Buckalew, 186
W. Va. 693, 414 S.E.2d 454 (1992) (“A statute that is ambiguous must be construed before
it can be applied.”). Applying these tenets to the intervention statute, West Virginia Code
§ 49-4-601(h), we find its language to be plain and to clearly grant to foster parents “a
meaningful opportunity to be heard” in child abuse and neglect proceedings. See Syl. pt. 1,
Dunlap, 149 W. Va. 266, 140 S.E.2d 448. However, we must determine whether the Foster
Parents have a right to intervene in the underlying child abuse and neglect proceedings as
contemplated by Syllabus point 7 of Faircloth, 240 W. Va. 729, 815 S.E.2d 540.
The first statute referenced by Faircloth, West Virginia Code § 49-4-605,
requires the DHHR to seek termination of a parent’s parental rights
[i]f a child has been in foster care for 15 of the most
recent 22 months as determined by the earlier of the date of the
first judicial finding that the child is subjected to abuse or
neglect or the date which is 60 days after the child is removed
from the home[.]
W. Va. Code § 49-4-605(a)(1) (2018). However, the DHHR’s duty is qualified by the
prefatory language of this section, which provides that “the department shall file or join in
14
a petition or otherwise seek a ruling in any pending proceeding to terminate parental
rights,” “[e]xcept as provided in § 49-4-605(b) of this code.” W. Va. Code § 49-4-605(a).
Subsection (b) then directs, in relevant part, that
[t]he department may determine not to file a petition to
terminate parental rights when . . .
....
[t]he department has not provided, when reasonable
efforts to return a child to the family are required, the services
to the child’s family as the department deems necessary for the
safe return of the child to the home.
W. Va. Code § 49-4-605(b)(3). 12 Despite the multifaceted instruction provided by this
statute, we find the language to be plain thus allowing it to be applied without further
construction. See Syl. pt. 1, Dunlap, 149 W. Va. 266, 140 S.E.2d 448.
The second statute cited by the Faircloth holding, West Virginia Code § 49-
4-610, adopts temporal limits similar to those set forth in West Virginia Code § 49-4-
605(a)(1) by providing, with respect to time limits for improvement periods, that,
[n]otwithstanding any other provision of this section, no
combination of any improvement periods or extensions thereto
12
Although the Foster Parents also are the child’s grandparents and, thus, are
the child’s relatives, see supra note 3, the additional exception alleviating the DHHR of its
obligation to seek a termination of parental rights when the time limits of West Virginia
Code § 49-4-605(a)(1) (2018) have been met when, “[a]t the option of the department
[DHHR], the child has been placed permanently with a relative by court order” does not
apply to the facts of this case. W. Va. Code § 49-4-605(b)(1) (emphasis added). This
exception does not apply to the case sub judice because the Foster Parents served as a
temporary placement for H.W., and were not her permanent placement as contemplated by
the statute.
15
may cause a child to be in foster care more than fifteen months
of the most recent twenty-two months, unless the court finds
compelling circumstances by clear and convincing evidence
that it is in the child’s best interests to extend the time limits
contained in this paragraph.
W. Va. Code § 49-4-610(9) (2015) (emphasis added). We likewise find this statutory
language to be plain and capable of application without interpretation. See Syl. pt. 1,
Dunlap, 149 W. Va. 266, 140 S.E.2d 448.
In addition to the statutes cited by Faircloth, the Foster Parents further rely
on West Virginia Code § 49-4-111 to support their arguments that they should have been
granted intervenor status and that H.W. should have remained in their care. Specifically,
the Foster Parents argue that H.W. should have remained with her siblings, rather than
being reunited with the Mother, because the temporal limits of this statute have been
satisfied. In this regard, West Virginia Code § 49-4-111(b) provides, in pertinent part, that
[w]hen a child has been placed in a foster care
arrangement for a period in excess of eighteen consecutive
months, and the department determines that the placement is a
fit and proper place for the child to reside, the foster care
arrangement may not be terminated unless the termination is in
the best interest of the child and:
....
(2) The foster care arrangement is terminated due to the
child being returned to his or her parent or parents; [or]
(3) The foster care arrangement is terminated due to the
child being united or reunited with a sibling or siblings[.]
16
W. Va. Code §§ 49-4-111(b)(2-3) (2015). We also find this statutory language to be plainly
stated with no need for further consideration of its intended meaning. See Syl. pt. 1, Dunlap,
149 W. Va. 266, 140 S.E.2d 448. As with the above-quoted statutes referenced in
Faircloth, the directives of West Virginia Code § 49-4-111(b) are not absolute. The DHHR
is authorized to remove a child from a lengthy foster care placement where, as here, the
removal is occasioned by the reunification of the child with his/her parent. See W. Va.
Code § 49-4-111(b)(2).
In its order denying the Foster Parents’ motion to intervene and ruling that
the disposition that would serve H.W.’s best interests was the reunification of H.W. with
her Mother, the circuit court rejected the notion that either the statutes referenced in
Faircloth; the Faircloth decision itself; or West Virginia Code § 49-4-111 required
termination of the Mother’s parental rights. Rather, under the facts of this case, which
remained pending during the height of the COVID-19 global pandemic, the circuit court
specifically ruled in its June 22, 2021 order that
[t]he [c]ourt FINDS that reunification is in the best
interest of the minor child. The [c]ourt further FINDS that the
timeframes contemplated by W. Va. Code § 49-4-111(b)(3)
and State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d
540 (2018)[,] have been specifically and directly impacted by
lapses in services due to the COVID-19 pandemic and through
no fault of Respondent Mother. The [c]ourt FINDS that
Respondent Mother substantially complied with all remedial
and reunification services, thereby correcting the conditions
giving rise to the filing of the Petition.
17
(Emphasis in original). In light of this ruling, reunification of H.W. with her Mother was
proper under the dispositional statute, West Virginia Code § 49-4-604, which requires
termination “[u]pon a finding that there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future,” W. Va. Code § 49-4-
604(c)(6) (2020). Here, the circuit court found that the Mother had corrected these
conditions through her compliance with services in this case.
While the operation of legislative exceptions applied to halt the statutory time
limits that would have entitled the Foster Parents to intervention as a matter of right in this
case pursuant to Syllabus point 7 of Faircloth, 240 W. Va. 729, 815 S.E.2d 540, as the
child’s foster parents, they nevertheless had the right to be heard during the underlying
abuse and neglect proceedings. Pursuant to West Virginia Code § 49-4-601(h),
[i]n any proceeding pursuant to this article, the party or
parties having custodial or other parental rights or
responsibilities to the child shall be afforded a meaningful
opportunity to be heard, including the opportunity to testify
and to present and cross-examine witnesses. Foster parents,
pre-adoptive parents, and relative caregivers shall also have a
meaningful opportunity to be heard.
(Emphasis added). We have explained that “[f]oster parents, pre-adoptive parents, or [sic]
relative caregivers who occupy only their statutory role as individuals entitled to a
meaningful opportunity to be heard pursuant to West Virginia Code § 49-4-601(h) (2015)
are subject to discretionary limitations on the level and type of participation as determined
by the circuit court.” Syl. pt. 4, in part, Faircloth, 240 W. Va. 729, 815 S.E.2d 540. Despite
denying the Foster Parents’ intervention motion, the circuit court nevertheless allowed the
18
Foster Parents’ attorney, on their behalf, to monitor and participate in the abuse and neglect
proceedings occurring after their motion hearing. In response to this ruling, the Foster
Parents’ counsel specifically stated, “I would have no objection to monitoring.” We find
no error in the circuit court’s decision to deny the Foster Parents’ intervention motion while
permitting their counsel to monitor and participate in the ongoing child abuse and neglect
proceedings involving H.W.
Furthermore, we reject the Foster Parents’ contentions that they were entitled
to intervene because they had had custody of the child before the commencement of the
underlying child abuse and neglect proceedings. See W. Va. Code § 49-4-601(h)
(providing, in part, that “[i]n any proceeding pursuant to this article, the party or parties
having custodial or other parental rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard, including the opportunity to testify and to present and
cross-examine witnesses” (emphasis added)). From the sparse appendix record in this
case, 13 it is apparent that H.W. was placed with the Foster Parents incident to the DHHR’s
13
The sparse appendix record likely is due to the confidential nature of child
abuse and neglect cases and the Foster Parents’ inability to access the circuit court’s record
of the proceedings below because they were not parties to those proceedings. See In re J.L.,
234 W. Va. 116, 121, 763 S.E.2d 654, 659 (2014) (recognizing that “[b]ecause child and
abuse proceedings are confidential in nature, access to the records of such cases is limited”
(citations omitted)). See also W. Va. R. P. Child Abuse & Neglect Proceeds. 6a(b), in part
(“All records and information maintained by the courts in child abuse and neglect
proceedings shall be kept confidential except as otherwise provided in W. Va. Code,
Chapter 49 and this rule.”).
19
initiation of these proceedings and that no custodial arrangement existed prior to the filing
of the petition. To this end, we have recognized that
West Virginia Code § 49-4-601(h) establishes a “two-tiered
framework.” State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL
1788946, *3 (W. Va. May 5, 2017) (memorandum decision).
Parties having “custodial or other parental rights or
responsibilities” are entitled to both “a meaningful opportunity
to be heard” and “the opportunity to testify and to present and
cross-examine witnesses.” See W. Va. Code § 49-4-601(h). In
contrast, however, “[f]oster parents, preadoptive parents, and
relative caregivers” are only granted the right to “a meaningful
opportunity to be heard.” See id. Moreover, for purposes of this
statute, the term “custodial” refers to a person who became a
child’s custodian “prior to the initiation of the abuse and neglect
proceedings[.]” [In re] Jonathan G., 198 W. Va. [716,] at 727,
482 S.E.2d [893,] at 904 [(1996)] (emphasis added)[, modified
on other grounds by State ex rel. C.H. v. Faircloth, 240 W. Va.
729, 815 S.E.2d 540 (2018)].
State ex rel. H.S. v. Beane, 240 W. Va. 643, 647, 814 S.E.2d 660, 664 (2018) (emphasis in
original; footnote omitted). Accord In re N.S., 2022 WL 1505971, at *4-5; State ex rel.
R.H. v. Bloom, 2017 WL 1788946, at *3. See also In re Jonathan G., 198 W. Va. at 727,
482 S.E.2d at 904 (construing prior version of W. Va. Code § 49-4-601(h) affording
intervention rights to child’s “custodian” as meaning “an individual who was a lawful
custodian prior to the initiation of abuse and neglect proceedings” as compared to foster
parents whose “status as a child’s custodian results from the filing of abuse and neglect
charges and exists subject to and under the auspices of the DHHR’s role as the child’s legal
custodian” (emphasis in original)). Thus, because the Foster Parents did not, prior to the
institution of the instant abuse and neglect proceeding, have “custodial . . . rights or
20
responsibilities to the child,” W. Va. Code § 49-4-601(h), they were not entitled to
intervention as a matter of right in these proceedings.
Finally, to the extent the Foster Parents argue that the circuit court erred by
not terminating the Mother’s parental rights, such dispositional decision is not properly
before the Court. Because the Foster Parents were not granted intervenor status, their ability
to bring the instant appeal is limited to their role in the proceedings below as foster parents
who requested, but were denied, intervenor status. See Syl. pt. 4, in part, Faircloth, 240
W. Va. 729, 815 S.E.2d 540 (“Foster parents who have been granted the right to intervene
are entitled to all the rights and responsibilities of any other party to the action.”); Syl. pt.
1, In re Harley C., 203 W. Va. 594, 509 S.E.2d 875 (1998) (“Foster parents who are granted
standing to intervene in abuse and neglect proceedings by the circuit court are parties to
the action who have the right to appeal adverse circuit court decisions.”). But see Syl. pt.
1, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (“The foster parents’ involvement
in abuse and neglect proceedings should be separate and distinct from the fact-finding
portion of the termination proceeding and should be structured for the purpose of providing
the circuit court with all pertinent information regarding the child. The level and type of
participation in such cases is left to the sound discretion of the circuit court with due
consideration of the length of time the child has been cared for by the foster parents and
the relationship that has developed. To the extent that this holding is inconsistent with
Bowens v. Maynard, 174 W. Va. 184, 324 S.E.2d 145 (1984), that decision is hereby
modified.”).
21
Thus, although the Foster Parents may challenge the circuit court’s denial of
their intervention motion, as non-parties they do not have standing to challenge the further
rulings of the circuit court concerning the underlying abuse and neglect case. See State ex
rel. H.S., 240 W. Va. at 647 n.10, 814 S.E.2d at 664 n.10 (“Unless the circuit court
determines that the facts and circumstances warrant granting intervener [sic] status to a
person who obtains physical custody of a child after the filing of the abuse and neglect
case, that person is not a party litigant in the case.” (citation omitted)).14 See also W. Va.
R. P. Child Abuse & Neglect Proceeds. 49, in part (recognizing that “[a]ll parties to the
proceeding in the court from which the appeal [from an abuse and neglect order] is taken,
including the guardian(s) ad litem for the minor children, shall be deemed parties in the
Supreme Court of Appeals”); W. Va. R. P. Child Abuse & Neglect Proceeds. 3(m)
(defining “‘[p]arties’” in child abuse and neglect proceedings as “the petitioner, co-
14
In this same vein, the Foster Parents cannot challenge the circuit court’s
ruling to the extent it determined that H.W. should be reunified with the Mother rather than
remaining in the Foster Parents’ household with her siblings. To support their argument
that the siblings should not have been separated, but, rather, that the children should have
remained in the same household, the Foster Parents attempt to advocate for H.W.’s best
interests but, in doing so, repeatedly focus upon the best interests of the child’s siblings,
who the Foster Parents have adopted, and not on the best interests of H.W., herself. See
Petitioners’ Br. 17 (“H.W. created a lasting bond with the [Foster Parents] and more
importantly the siblings who are now devastated at the loss of their sister. This Court can
only imagine these two older girls growing older wondering what happened to their
younger sister who was snatched from their home by a [c]ourt of law and who is now not
allowed to have visits with them because of advice from attorneys trying to win an appeal.
The best interest of this child is clearly to be returned to [the Foster Parents] and her
siblings.”). However, the circuit court, in rendering its rulings, properly considered the best
interests of the only child subject to these proceedings, H.W., and disposed of the matter
in accordance with its determination of her best interests, which disposition encouraged
continued sibling visitation following reunification of the child with the Mother.
22
petitioner, respondent, adjudicated battered parent, and child” (emphasis omitted)). But see
W. Va. R. P. Child Abuse & Neglect Proceeds. 3(o), in part (noting that “‘[p]ersons entitled
to notice and the right to be heard’” in child abuse and neglect proceedings are “persons
other than parties who include . . . foster parents, preadoptive parents, or custodial relatives
providing care for the child” (first emphasis omitted; second emphasis added)).
In conclusion, this Court is not unsympathetic to the Foster Parents’ desire
to participate more fully in the underlying proceedings to safeguard what they perceive to
be the child’s best interests. Nevertheless, the ultimate goal in abuse and neglect
proceedings is the repair of the conditions in the home that led to the petition’s filing and
the reunification of the child(ren) with his/her parent(s) when such reunification will serve
the child(ren)’s best interests. See, e.g., W. Va. Code § 49-1-105(b)(3) (2015) (identifying
purpose of “[t]he child welfare . . . system” as including to “[p]reserve and strengthen the
child family ties”); W. Va. Code § 49-4-604(a)(2) (requiring family case plan to “facilitate
the return of the child to his or her own home”). See also Faircloth, 240 W. Va. at 741, 815
S.E.2d at 552 (“Certainly the over-arching purpose of our abuse and neglect statutory
construct continues to be the correction of conditions of abuse and neglect and the return,
if reasonably possible, of the children to their homes[,] . . . . [but] only when reunification
fully serves the best interests of the child do statutorily required efforts to reunite the family
dovetail with the goal of abuse and neglect proceedings.” (emphasis in original)); State ex
rel. Amy M. v. Kaufman, 196 W. Va. 251, 258, 470 S.E.2d 205, 212 (1996) (recognizing
23
goal “to facilitate the reunification of families whenever that reunification is in the best
interests of the children involved”).
The vast majority of child abuse and neglect cases that this Court considers,
though, never realize this pinnacle of successful resolution of an abuse and neglect
proceeding through reunification of the family. Here, that delicate balance of sufficient
improvement by the parent to be able to provide appropriate care and a safe and suitable
home for the child appears to have been achieved, and the circuit court correctly determined
that affording the Foster Parents full intervenor status would do nothing more than delay
the implementation of this reunification, which disposition the court found to be in the
child’s best interests. Nonetheless, we commend the Foster Parents for their willingness to
provide a refuge with safe and appropriate care for the child upon her removal from the
Mother’s care when the DHHR initiated this proceeding. As we previously lamented in
Jonathan G.,
[i]n the instant case, it is difficult not to be sympathetic
to the [foster parents’] effort to participate, not only because
they had Jonathan G. with them for so long, providing him with
love, constancy, and care in his earliest years; but also because
the significant issues relating to a child’s life and fate must not
be decided in some artificial procedural vacuum. . . . What
makes balancing their right to participate, and the extent of
such participation, against the natural rights of the biological
parents, as well as the statutory objective of reunifying
Jonathan G. with them, so difficult is that both sets of parents,
foster and biological, obviously loved and wanted this child.
As a result of this love, and their strong commitment to this
child, the two sets of parents became adversaries during these
proceedings.
24
In re Jonathan G., 198 W. Va. at 729, 482 S.E.2d at 906. See also In re Clifford K., 217
W. Va. 625, 646, 619 S.E.2d 138, 159 (2005) (“The tragic events that have led to the
circumstances in which Z.B.S. currently finds himself have resulted in litigation over his
permanent custodial placement only because too many people love this little boy. Oh that
all of the children whose fates we must decide would be so fortunate as to be too loved.”).
The governing statutory law has clearly established when the DHHR is
required to seek a ruling on the termination of a parent’s rights to his/her child(ren) and
when the DHHR is relieved from such duty. Here, as we have explained, the DHHR was
not obligated to seek termination of the Mother’s parental rights to H.W. because the
various statutory exceptions applied to excuse the lapse of time in this case. Moreover, the
preeminent consideration in child abuse and neglect proceedings is the best interest of the
child subject to such proceedings. In other words, “the primary goal in cases involving
abuse and neglect . . . must be the health and welfare of the children,” Syl. pt. 3, in part, In
re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996), and, as was apparent in the circuit
court’s order in this case, “[t]he controlling standard that governs any dispositional decision
remains the best interests of the child.” Syl. pt. 4, in part, In re B.H., 233 W. Va. 57, 754
S.E.2d 743 (2014). In this case, both the DHHR and the child’s Guardian ad Litem
recommended that H.W. be reunified with her Mother, and the circuit court determined
that reunification of the child with the Mother was the disposition that would serve the
child’s best interests. In making this disposition, the circuit court also decided that
affording the Foster Parents full intervenor status was not necessary to achieve
25
reunification, but would likely only delay it. Therefore, the circuit court correctly denied
their intervention motion. See Syl. pt. 1, in part, In Int. of Carlita B., 185 W. Va. 613, 408
S.E.2d 365 (1991) (“Child abuse and neglect cases must be recognized as being among the
highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a
child’s development, stability and security.”). Cf. Syl. pt. 2, In re Clifford K., 217 W. Va.
625, 619 S.E.2d 138 (“The reference to ‘exceptional cases’ contained in W. Va. Code § 48-
9-103(b) (2001) (Repl. Vol. 2004) signifies unusual or extraordinary cases, and,
accordingly, a court should exercise its discretion to permit intervention in such unusual
or extraordinary cases only when intervention is likely to serve the best interests of the
subject child(ren).” (emphasis added)). Therefore, we conclude that the circuit court
properly denied the Foster Parents’ motion to intervene in the underlying child abuse and
neglect proceedings, and we affirm the circuit court’s ruling.
IV.
CONCLUSION
For the foregoing reasons, the June 22, 2021 order of the Circuit Court of
Kanawha County denying the Foster Parents’ motion to intervene in the underlying child
abuse and neglect proceedings is hereby affirmed.
Affirmed.
26