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analyzing the Legislature's amendments to Chapter 49 of the West Virginia Code distinguishing between foster care and kinship placement
Summary of this case from State v. CoheeOpinion
No. 21-0545
06-14-2022
IN RE H.W.
Joseph H. Spano, Jr., Esq., Pritt & Spano, PLLC, Charleston, West Virginia, Attorney for the Petitioners, Foster Parents N.S. and C.S. Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent, West Virginia Department of Health and Human Resources Sandra K. Bullman, Esq., Bullman and Bullman, Charleston, West Virginia, Attorney for the Respondent, Mother B.S. J. Rudy Martin, Esq., Charleston, West Virginia, Guardian ad Litem for the Minor Child, H.W.
Joseph H. Spano, Jr., Esq., Pritt & Spano, PLLC, Charleston, West Virginia, Attorney for the Petitioners, Foster Parents N.S. and C.S.
Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent, West Virginia Department of Health and Human Resources
Sandra K. Bullman, Esq., Bullman and Bullman, Charleston, West Virginia, Attorney for the Respondent, Mother B.S.
J. Rudy Martin, Esq., Charleston, West Virginia, Guardian ad Litem for the Minor Child, H.W.
Bunn, Justice:
Petitioners herein, foster parents N.S. 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.
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).
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.
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. In February 2020, the Mother stipulated to the petition's allegations. The 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.
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 recharacterize Petitioners for purposes of our decision in this case. See W. Va. Code § 49-4-601(h) (2019).
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 .
(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, and we have previously applied the general standard of review that governs our consideration of statutory law. 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.
See W. Va. Code § 49-4-601(h) and text, infra , at Section III.
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.").
In other cases, we have used the general abuse and neglect standard of review, 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. 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.
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.").
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.
Although we have adopted standards of review governing motions to intervene in civil cases generally, 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.
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.").
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 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, 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.").
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. Syl. pt. 4, in part, Faircloth , 240 W. Va. 729, 815 S.E.2d 540. But the circuit court's exercise of such 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).
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).
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, pursuant to Syllabus point 4, in part, State ex rel. C.H. v. Faircloth , 240 W. Va. 729, 815 S.E.2d 540 (2018). Guided by this standard, we proceed to consider the parties’ arguments.
Insofar as this case does not involve intervention in child abuse and neglect 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.
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 care for more than fifteen of the previous twenty-two months, as contemplated by West Virginia 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.
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."
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 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 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 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). 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.
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.
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 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[.]
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.
(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 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, it is apparent that H.W. was placed with the Foster Parents incident to the DHHR's initiation of these proceedings and that no custodial arrangement existed prior to the filing of the petition. To this end, we have recognized that
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.").
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 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.").
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)). 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-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 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.
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 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.
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 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.
JUSTICES WALKER and WOOTON concur and reserve the right to file separate opinions.
Walker, J., concurring:
I agree with the majority's conclusion that the circuit court did not err in refusing Petitioners’ intervenor status. I write separately to address technical issues unique to these procedural child abuse and neglect proceedings. First, there is a proverbial elephant in this room the majority is not record-equipped to address. I write separately with the hope that the paltry record in this case does not lead to a misinterpretation of the majority opinion as to a right to intervene by foster parents versus kinship parents and relative caregivers. I also write separately because I disagree that a new syllabus point as to the standard of review is necessary or necessarily accurate. In short, I do not agree that West Virginia Code § 49-4-601(h) is a "permissive intervention" statute, and the requisite standards already exist for evaluating whether a person is receiving their statutory right to the participation afforded under that statute by applying the de novo review we apply to all statutes. Any level of participation beyond the statutory requirements exists only in the discretion of the circuit court for which we have already articulated a standard of review.
As the majority notes in footnotes three and eleven, it refers to Petitioners, H.W.’s paternal grandparents, as "foster parents." It does so because the paternal grandparents classify themselves as foster parents, the DHHR refers to them as foster parents and does not contest that classification on appeal, and the circuit court relied on statutes and case law as to foster parents in rendering its decision on intervention. Because intervention was denied, the record on appeal is extremely limited. And, bound as it is by a limited record, the majority did not wish to disturb that classification without sufficient evidence to conclude Petitioners are not, in fact, foster parents, without any argument relative to the definitions of "foster parents" and "relative caregivers" or "kinship placements." But here's why that classification does matter, and why the confusion – if not properly reviewable by the majority in this particular case – needs purged. Petitioners’ argument that they should have been granted intervenor status is premised primarily on what is described as the "15-of-the-last-22-months rule," which is derived from both West Virginia Code § 49-4-605(a)(1) and West Virginia Code § 49-4-610(9). The former outlines when DHHR's efforts to terminate parental rights are required and states that such efforts must be made "[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." Similarly, West Virginia Code § 49-4-610(9) sets limitations on the extension of improvement periods:
As discussed below, West Virginia Code § 49-4-601(h) references "relative caregivers" who are, presumably, relatives providing care to the child (that term is not defined in the Code). "Kinship parent" and "kinship placement" are defined as relatives with whom the child is placed for custody during the pendency of the proceedings. Ultimately, the distinction doesn't matter under this analysis because (1) the import of the analysis is that relatives do not provide foster care (whether relative caregivers or kinship parents), and (2) here, the Petitioners are both relative caregivers and kinship placements.
W. Va. Code § 49-4-605(a)(1) (emphasis added).
Notwithstanding any other provision of this section, no combination of any improvement periods or extensions thereto 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.[ ]
Emphasis added.
Specific to intervention, in examining these statutes, this Court concluded in Syllabus Point 7 of State ex rel. C.H. v. Faircloth that foster parents are entitled to intervene when these statutes are implicated: " [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]) (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."
240 W. Va. 729, 815 S.E.2d 540 (2018).
Emphasis added.
Petitioners – H.W.’s paternal grandparents – invoke these provisions and our holding C.H. to argue that DHHR was required to seek termination of parental rights, that the improvement period could not be further extended, and that C.H. affords them the right to intervene. DHHR and the Guardian respond that termination was not imminent. But these statutes and C.H. are inapposite here because this child is not in foster care. Glaringly absent from West Virginia Code §§ 49-4-605(a)(1), 49-4-610(9), and C.H. are "kinship parents" and "relative caregivers." Stated differently, it matters that Petitioners are not foster parents because relatives (kinship parents or relative caregivers) do not provide "foster care" and so do not implicate §§ 49-4-605(a)(1), 49-4-610(9), or Syllabus Point 7 of C.H. on which Petitioners rely.
See n. 1 above.
My analysis of the relevant statutes lands squarely on the conclusion that the mere fact that Petitioners are paternal grandparents removes them from the characterization as a "foster parent" or their home as a "foster family home." So, H.W. is not placed "in foster care." "Foster care" is not defined under Chapter 49, but "foster family home" has been defined since at least 2015. It is defined at West Virginia Code § 49-1-206 as "a private residence which is used for the care on a residential basis of no more than six children who are unrelated by blood, marriage, or adoption to any adult member of the household. "
Effective June 2020, the Legislature amended West Virginia Code § 49-1-206 only to change the language from "no more than five children" to "no more than six children." Substantively, it was otherwise unchanged.
Emphasis added.
In 2020, the Legislature enacted the Foster Child Bill of Rights, West Virginia Code § 49-2-126 ; the Foster and Kinship Parent Bill of Rights, West Virginia Code § 49-2-127 ; and created corresponding definitions of "foster parent," "kinship parent," and "kinship placement." "Foster parent" is defined as "a person with whom the department has placed a child and who has been certified by the department, a child placing agency, or another agent of the department to provide foster care." Conversely, the term "kinship parent" is defined as "a person with whom the department has placed a child to provide a kinship placement[,]" and "kinship placement" "means the placement of the child with a relative of the child, as defined herein, or a placement of a child with a fictive kin, as defined herein."
W. Va. Code § 49-1-206.
Id. (emphasis added). "Relative of the child" is further defined as "an adult of at least 21 years of age who is related to the child, by blood or marriage, within at least three degrees." Id.
Looking at the definition of "foster parent" in a vacuum, there is no mention that the person must be unrelated as there is in "foster family home." But, as a long-standing tenet of statutory construction, we assume the Legislature was aware of the immediately preceding definition of "foster family home": "[i]n the enactment of a statute the Legislature must be presumed to have acted with full knowledge of the provisions of all prior statutes dealing with the same subject matter." Common sense–without need to resort to statutory construction – tells us that if the definition of "foster parents" was intended to encompass relative placements, there would have been little need to create the term "kinship parent" or "kinship placement." It is plain that the definition of the "foster family home" refers to the residence used for foster care while "foster parent" refers to the person providing the foster care, but neither contemplates that "foster care" means the child is residing with a relative.
Syl. Pt. 1, State v. Jackson , 120 W. Va. 521, 199 S.E. 876 (1938). Accord Syl. Pt. 12, Vest v. Cobb , 138 W.Va. 660, 76 S.E.2d 885 (1953) ("The Legislature, when it enacts legislation, is presumed to know its prior enactments.").
Applying another tenet of statutory construction, statutes relating to the same subject-matter should be read together if there is no internal inconsistency: "[s]tatutes in pari materia must be construed together and the legislative intention, as gathered from the whole of the enactments, must be given effect." Given that the definitions were enacted at the same time, relate to the same subject-matter, and are utilized in the Foster Child Bill of Rights and the Foster and Kinship Parent Bill of Rights, the statutes are in pari materia. In these enactments, the Legislature has been consistent in referring to relative placements as distinct from foster placements with non-relatives.
Syl. Pt. 3, State ex rel. Graney v. Sims , 144 W. Va. 72, 105 S.E.2d 886 (1958).
First, as noted above, these terms are defined separately. Second, they are used separately, even when kinship parents and foster parents are being afforded the same treatment. The briefest of reviews of the Foster Child Bill of Rights is telling on this point. Despite the title, the first iteration of the enactment is "(a) Foster children and children in a kinship placement are active and participating members of the child welfare system and have the following rights[.]" The Foster and Kinship Parent Bill of Rights, similarly differentiates: "Foster parents and kinship parents play an integral, indispensable, and vital role in the state's effort to care for children displaced from their homes, and such parents and persons have the following rights[.]" The enactment repeatedly and consistently lists both foster parents and kinship parents as separate classifications, despite providing them same rights.
Emphasis added.
Emphasis added.
If the Legislature intended that the 15-of-the-last-22-months rule espoused in West Virginia Code §§ 49-4-605(a)(1) and 49-4-610(9) would apply to both foster placements and placements with relatives, it could have amended those provisions to read that the child could not be placed outside "the home," for example, for longer than 15 of the last 22 months. It did not. In fact, starting with the assumption that the Legislature was aware that that limitation applied only to "foster care" and that we interpreted it as such in C.H. , the Legislature doubled down by further distinguishing kinship parents from foster parents in its 2020 enactments. This Court should apply these statutes as written – as applicable only to foster care with non-relatives – unless and until the Legislature tells us that, contrary to the definitions it adopted in 2020, it wants this Court to treat kinship care as interchangeable with foster care.
Petitioners’ status as foster parents or kinship parents/relative caregivers matters in examining whether Petitioners in this case should have been permitted to intervene. West Virginia Code § 49-4-601(h) provides that:
In 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.
If we incorrectly dub Petitioners "foster parents," West Virginia Code § 49-4-601(h) does not give them any more right to intervene in the proceedings than if they were classified as "relative caregivers" but Syllabus Point 7 of C.H. (derived from West Virginia Code §§ 49-5-605(a)(1) and 49-4-610(9) ) does. Simply put, foster parents have the same rights of participation as do relative caregivers when it comes to West Virginia Code § 49-4-601(h) but, as discussed above, C.H. and the right to intervene is premised on West Virginia Code §§ 49-4-605(a)(1) and 49-4-610(9) and applies only to foster care placements.
Turning to West Virginia Code § 49-4-601(h), the analysis should be straightforward under the two-tier framework of that provision as espoused in State ex rel. R.H. v. Bloom – what classification does the individual fit into, and what rights of participation does the statute guarantee them? Again, that provision states:
No. 17-0002, 2017 WL 1788946, *3 (W. Va. May 5, 2017) (memorandum decision).
In 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.
We have explained that under this statute, pre-petition custodians (first tier) are "parties" and with that, have all of the rights attendant to being a party to an action as specified in the statute (meaningful opportunity to be heard, the opportunity to testify, and the right to present and cross-examine witnesses). In appellate terms, party status also affords them a right to challenge the circuit court's determination. Importantly, pre-petition custodians are required to be named as party-respondents in the abuse and neglect petition under West Virginia Code § 49-4-601(b). The second tier (foster parents, preadoptive parents, and relative caregivers) are afforded only meaningful opportunity to be heard by statute. But the circuit court may choose to expand the level of participation of these second-tier classifications.
West Virginia Code § 49-4-601(b) provides:
Contents of Petition. – The petition shall be verified by the oath of some credible person having knowledge of the facts. The petition shall allege specific conduct including time and place, how the conduct comes within the statutory definition of neglect or abuse with references to the statute, any supportive services provided by the department to remedy the alleged circumstances, and the relief sought. Each petition shall name as a party each parent, guardian, custodian, other person standing in loco parentis of or to the child allegedly neglected or abused and state with specificity whether each parent, guardian, custodian, or person standing in loco parentis is alleged to have abused or neglected the child.
(emphasis added).
C.H. clarified that
Foster parents, pre-adoptive parents, or 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. 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. To the extent that this holding is inconsistent with In re Jonathan G. , 198 W. Va. 716, 482 S.E.2d 893 (1996), our holding in In re Jonathan G. is hereby modified.[ ]
Syl. Pt. 4, C.H.
In making that clarification, C.H. discussed that foster parents may remain on level with preadoptive parents or relative caregivers under the statute, but West Virginia Code §§ 49-4-605(a)(1) and 49-4-610(9) give foster parents a right to intervene when the child has been in their care for 15 of the last 22 months, and a right to be made parties at that point that is not enjoyed by preadoptive parents or relative caregivers: "Foster parents are entitled to intervention as a matter of right when the time limitations contained in West Virginia Code § 49-4-605 ([a]) (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." So, since Petitioners are "relative caregivers" they can claim neither a right to be parties derived from West Virginia Code § 49-4-601(b) – as they are in the second tier of West Virginia Code § 49-4-601(h) and are afforded only notice and meaningful opportunity to be heard under that statute – nor intervention as of right under C.H. because it does not apply to them.
Id. at syl pt. 7.
We then reach the issue of what the majority has termed "permissive intervention." This is where I deviate from the majority, because in the category of foster parents, relative caregivers and preadoptive parents, West Virginia Code § 49-4-601(h) does not contemplate permissive intervention whatsoever – it simply states the rights of participation of various classifications. And, as we have previously held, the rights of participation under § 49-4-601(h) are separate and distinct from intervention rights. So, I disagree with the premise that "permissive" intervention (as opposed to rights of participation) is dictated by application of this statute rather than the discretion of the circuit court and further disagree that a syllabus point is necessary when the discretion of the circuit court to expand the participation of the parties is already memorialized by syllabus.
As relative caregivers, the Petitioners were already at the table – they were entitled to notice and meaningful opportunity to be heard. They are not, as discussed, entitled to anything more than that by statute. In reaching the conclusion in C.H. that foster parents were eventually vested with a right of intervention through different statutes , we stated
What Beane properly illustrates is that the right to be heard afforded under West Virginia Code § 49-4-601(h) exists and operates independently of the rights and privileges afforded to intervening parties. Foster parents and others designated in the statute have a right to be heard without the necessity of requesting intervenor status. We find nothing, however, in West Virginia Code § 49-4-601 et seq. which precludes foster parents from likewise procedurally being granted party-intervenor status where appropriate.[ ]
Id. at 737, 815 S.E.2d at 737.
What C.H. points out is that West Virginia Code § 49-4-601(h) is not an "intervention" statute – it "exists and operates independently of the rights and privileges afforded to intervening parties." To the extent pre-petition custodians invoke West Virginia Code § 49-4-601(h) to achieve "party" status they were already entitled to under West Virginia Code § 49-4-601(b), that standard of review would certainly be de novo under the well-settled and oft-employed "[w]here 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." Again, the only questions for resolution being, "what classification does this individual fall under, and what right of participation does the statute give them?"
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995).
Insofar as intervention is involved, those inquiries involve only the classification of a prospective party as first (pre-petition custodian) in which case they should have already been made parties pursuant to a different provision ( West Virginia Code § 49-4-601(b) ), or as a foster parent with the right to intervene as recognized in C.H. (which right to intervention is derived from other statutes, not West Virginia Code § 49-4-601(h) ). Beyond classification of pre-petition custodians for intervention as of right actually granted under a different provision, § 49-4-601(h) contemplates participation, not "intervention."
As C.H. makes clear, the statute does not contemplate party-intervenor status, or what the majority has termed "permissive intervention." Rather, we have discussed that under § 49-4-601(h) a circuit court may choose to expand the participation of foster parents (separate and apart from "intervention" under the 15-of-the-last-22-months rule), preadoptive parents, and relative caregivers beyond that which is statutorily required (i.e., permitting them the opportunity to testify, to present witnesses, or, perhaps, granting them party-intervenor status). We reiterated in C.H. that the circuit court exercises its discretion in setting those parameters for the "right to be heard" second-tier participants based on the needs of the case:
Those limitations—the discretionary "level and type of participation" to be determined by the circuit court discussed in Jonathan G. —are still clearly needed when a foster parent or other statutorily designated individual is participating in a statutory "right to be heard" role. That role is limited by statute and the precise contours of such involvement must necessarily be crafted by the circuit court inasmuch as the statute does not specifically delineate the activities permitted. Our precedent makes clear, however, that whatever evidentiary limitations are placed on such parties, a meaningful opportunity to be heard includes notice of and the right to be heard on all proceedings insofar as "pertinent information regarding the child" is relevant to the circuit court's consideration. See Syl. Pt. 1, Jonathan G. , 198 W. Va. 716, 482 S.E.2d 893 ; Kristopher O. , 227 W. Va. 184, 706 S.E.2d 381 ; Beane , 814 S.E.2d 660.[ ]
C.H. , 240 W. Va. at 739, 815 S.E.2d at 850.
If this Court is going to craft a standard of review for a circuit court's decision to grant or deny intervenor status as an expansion of their participation rights under the statute to those who are not entitled to it, I agree that it would be an abuse of discretion standard. I simply disagree that the standard of review has not already been conclusively decided and believe the injection of "permissive intervention" as opposed to any expansion of rights of participation unnecessarily muddies the waters. We have already afforded the circuit courts the discretion to set the parameters of participation for those second-tier, "right-to-be-heard" only classifications. C.H. ’s fourth syllabus point already reiterates that the participation of those second-tier classifications "are subject to discretionary limitations on the level and type of participation as determined by the circuit court." Indeed, we have discussed that " ‘[t]ypically, a grant of discretion to a lower court commands this Court to extend substantial deference to such discretionary decisions.’ "
Emphasis added.
In re Michael Ray T. , 206 W. Va. 434, 441, 525 S.E.2d 315, 322 (1999) (quoting State v. Allen , 208 W. Va. 144, 539 S.E.2d 87 (1999) ).
For those reasons, I disagree that the standard of review for "permissive intervention" should be placed on this statute that does not address intervention , but merely the scope of participation of the parties. I further disagree that a syllabus point is necessary in light of our prior holdings addressing the circuit court's discretion in determining the scope of participation of the parties. I am authorized to state that Justice Wooton joins in this concurring opinion.