In re M.F.

902 S.E.2d 887

IN RE M.F. III

No. 22-884

Supreme Court of Appeals of West Virginia.

Submitted: February 20, 2024

Filed: June 12, 2024

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)." Syllabus point 1, In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022).

2. "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." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

3. "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. 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." Syllabus point 4, in part, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).

4. "By specifying in West Virginia Code [§ 49-4-114(a)(3) (eff. 2015)] that the home study must show that the grandparents ‘would be suitable adoptive parents,’ the Legislature has implicitly included the requirement for an analysis by the Department of [Human Services] and circuit courts of the best interests of the child, given all circumstances of the case." Syllabus point 5, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).

5. "The mandatory language of W. Va. Code [§ 49-4-114(a)(3) (eff. 2015)] requires that a home study evaluation be conducted by the West Virginia Department of [Human Services] to determine if any interested grandparent would be a suitable adoptive parent." Syllabus point 9, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015).

6. "While the grandparent preference statute, at W. Va. Code [§ 49-4-114(a)(3) (eff. 2015)], places a mandatory duty on the West Virginia Department of [Human Services] to complete a home study before a child may be placed for adoption with an interested grandparent, ‘the department shall first consider the [grandparent’s] suitability and willingness … to adopt the child.’ There is no statutory requirement that a home study be completed in the event that the interested grandparent is found to be an unsuitable adoptive placement and that placement with such grandparent is not in the best interests of the child." Syllabus point 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015).

7. "In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided." Syllabus point 2, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).

Appeal from the Circuit Court of Kanawha County, The Honorable Joanna I. Tabit, Judge, Juvenile Action No. 21-JA-291

Sandra K. Bullman, Esq., Bullman and Bullman, Charleston, West Virginia, Attorney for the Petitioners, M.F. I and J.F.

Sharon K. Childers, Esq., Charleston, West Virginia, Guardian ad Litem for the Minor Child, M.F. III

Patrick Morrisey, Esq., Attorney General, Andrew T. Waight, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent, West Virginia Department of Human Services

BUNN, Justice:

The petitioners, M.F. I¹ and J.F. (collectively, "the Grandparents"), are the paternal grandparents of the child at issue in the underlying abuse and neglect proceeding, M.F. III. In this appeal, the Grandparents assign error to the order entered October 24, 2022, by the Circuit Court of Kanawha County denying their renewed motion to intervene in the underlying proceedings. The Grandparents further complain that the respondent, the West Virginia Department of Hu- man Services ("DHS"),² has not afforded them a home study pursuant to West Virginia Code § 49-4-114(a)(3) (eff. 2015)³ even though their grandchild is now eligible to be considered for adoption.⁴

We find that the circuit court did not err by denying the Grandparents' motions to intervene and affirm the circuit court’s order. However, we find that the DHS has failed to comply with the mandatory language of West Virginia Code § 49-4-114(a)(3) requiring it to "consider the suitability" of grandparents who seek to adopt a child after the parents’ rights to the child have been terminated in an abuse and neglect proceeding. Id. Because the DHS has not fulfilled this statutory requirement despite the Grandparents’ express interest in adopting M.F. III, we remand the case, in part, with directions to the circuit court to order the DHS to comply with the terms of West Virginia Code § 49-4-114(a)(3). Following the DHS’s completion of these statutory duties, we further direct the circuit court to determine the placement that is most compatible with the child’s best interests.

I. FACTUAL AND PROCEDURAL HISTORY

The underlying abuse and neglect case⁵ began in May 2021 when the Father fatally stabbed⁶ M.F. III’s mother. The child, who was approximately five months old at the time, was found in the same room as his mother’s body when law enforcement officers and Child Protective Services ("CPS") workers arrived at the residence. The Father called his ex-wife, N.C.-F., the mother of M.F. III’s two half-siblings, and asked her to pick up M.F. III from the Father’s residence. However, CPS placed M.F. III with his maternal aunt, S.M., who lived with M.F. III’s maternal grandmother, because M.F. III’s oldest half-sibling⁷ resided nearby with another maternal relative. The Grandparents lived in Baltimore, Maryland, at the time of M.F. III’s mother’s death, but they had a second home in Charleston, West Virginia. Following M.F. III’s mother’s death and the Father’s arrest, the DHS filed an abuse and neglect petition alleging that M.F. III was an abused and neglected child.

On June 11, 2021, approximately one month after M.F. III’s mother’s death and the child’s removal from the home, the Grandparents filed a motion to intervene seeking M.F. III’s placement and/or visitation with the child. During the hearing on the motion, which was also the preliminary hearing on the abuse and neglect petition, counsel for the Grandparents moved to hold their intervention motion in abeyance until the completion of paternity testing. Therefore, the circuit court denied the Grandparents’ motion to intervene at that juncture.

After paternity testing established that M.F. III is the Father’s child, the Grandparents filed two additional motions to intervene, on October 20, 2021, and September 27, 2022. The circuit court also denied those motions, by orders entered November 9, 2021, and October 24, 2022, respectively.⁸ The Grandparents now appeal to this Court.

II. STANDARD OF REVIEW

[1, 2] The Grandparents assign error to (1) the circuit court’s denial of their motions to intervene in the underlying abuse and neglect proceeding and (2) the DHS’s failure to conduct a home study in accordance with West Virginia Code § 49-4-114(a)(3) once the Father’s parental rights had been terminated and they expressed interest in adopting the child. We review a circuit court’s rulings on motions to intervene using a two-part standard:

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).

Syl. pt. 1, In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022). Issues pertaining to the interpretation and application of a statute are afforded plenary review: "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." Syl. pt. 1, Chrystal H.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

III. DISCUSSION

On appeal to this Court, the Grandparents raise two assignments of error. We first address whether the circuit court erred in denying the Grandparents’ motions to intervene in the underlying abuse and neglect case, and then we consider whether the Grandparents are entitled to a home study under West Virginia Code § 49-4-114(a)(3).

A. Motion to Intervene

[3–5] Intervention in child abuse and neglect proceedings is governed by statute. See In re H.W., 247 W. Va. at 113, 875 S.E.2d at 251 (noting that "[t]he right to intervene in an abuse and neglect proceeding is governed by statute" (footnote omitted)). 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

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