In re H.W.

875 S.E.2d 247

IN RE H.W.

No. 21-0545

Supreme Court of Appeals of West Virginia.

Submitted: May 17, 2022

Filed: June 14, 2022

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.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

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 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 .

(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.

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.

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 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...