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No. 22-0365 – In re G.G.

WOOTON, J., concurring: 

This Court is confronted with a case involving a child’s placement “only 

because too many people love this [child].” In re Clifford K., 217 W. Va. 625, 646, 619 

S.E.2d 138, 159 (2005); see also In re J.P., 243 W. Va. 394, 400, 844 S.E.2d 165, 171 

(2020) (same). Sadly, this is a rare occurrence in abuse and neglect cases. Here, the circuit 

court was tasked with deciding which of two equally suitable and loving homes should 

prevail in the contest to serve as G.G.’s permanent, adoptive placement. On one side are 

the foster parents — the family with whom G.G. has been placed for so much of her young 

life; on the other are G.G.’s maternal aunt and uncle, whom she only met late in these 

proceedings, but who clearly want only the best for her. In resolving that contest the circuit 

court ultimately determined that G.G.’s best interests were served by remaining with the 

foster parents, basing that decision largely on the amount of time G.G. had been in the 

foster parents’ home, and on the lack of a statutory preference for permanent placement 

with blood relatives of the child. 

I concur with the majority’s conclusion that under the current legal 

framework there is no statutory preference for permanent placement with blood relatives, 

generally. See Syl. Pt. 2, in part, In re K.L., 241 W. Va. 546, 826 S.E.2d 671 (2019) (“Apart 

from the grandparent and the sibling preferences, there does not exist an adoptive 

placement preference for a child’s blood relatives, generally.”). While I agree with the 

FILED

June 8, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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majority’s analysis of the law as it stands today, I believe recent amendments to the code 

suggest that the legislature may be moving towards legislation establishing a placement 

preference for a child’s blood relatives. Accordingly, I write separately for two reasons: 

(1) to highlight that there is no statutory preference for permanent placement with a child’s 

relatives; and (2) to stress that if there is to be such a permanent placement preference it 

will (and should) be accomplished through legislation. 

Petitioners argued before this Court that in enacting the Foster Child Bill of 

Rights, West Virginia Code section 49-2-126 (Supp. 2022), the Legislature created a 

statutory placement preference for blood relatives. Specifically, Petitioners point to section 

49-2-126(a)(5), which provides that children in the child welfare system have “[t]he right 

to be placed in a kinship placement, when such placement meets the objectives set forth in 

this article[.]” The majority correctly concludes that this language requires the circuit to 

analyze whether a child’s placement in a kinship placement would serve his or her best

interests. While I agree with the majority that this language does not in itself create a 

statutory adoptive placement preference for the child’s relatives, a review of Chapter 49 

suggests that such a preference may have been contemplated—not just by the language in 

section 49-2-126(a)(5), but by other provisions referencing placement with relatives of the 

child. 

 
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The Foster Child Bill of Rights clearly establishes that a child has “[t]he right 

to live in a safe and healthy environment, and the least restrictive environment possible[.]” 

Id. § 49-2-126(a)(1) (emphasis added). In this regard, the legislation leaves little question 

as to what constitutes the “least restrictive environment possible”; to wit: West Virginia 

Code section 49-4-601a (Supp. 2022) provides that “placement of a child with a relative is 

the least restrictive alternative living arrangement.” There is no reason to believe the 

Legislature would ascribe the phrase “least restrictive environment possible” a different 

meaning in the Foster Child Bill of Rights (West Virginia Code § 49-2-126(a)(1)) than in 

West Virginia Code § 49-4-601a.

 I agree with the majority that the plain language of section 49-4-601a limits 

its application to initial placements after the child is removed from the home, and

acknowledge that there is no similarly limiting language found in the Foster Child Bill of 

Rights. At a minimum, this suggests that in affording a child the general right to live in 

“the least restrictive environment possible” and the separate right to “be placed in a kinship 

placement,” the Legislature may be suggesting that a child’s relatives are to be entitled to

some type of preference.

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 The question is whether the Legislature intends that to be an 

adoptive placement preference. 

1 To be clear, while my focus is on the amendments to the code made after this 

Court’s decision in In re K.L. was rendered, there is no shortage of provisions pre-dating 

that opinion which also suggest the existence of an adoptive placement preference for a

child’s relatives. For example, the statutes governing permanency hearings at least twice 
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I believe this Court is constrained from answering that question in the 

affirmative; the various statutory references to placement with relatives do not rise to a 

level sufficient for this Court to determine that there exists in the law an adoptive placement 

preference for the child’s relatives, generally. Simply stated, other than grandparents and 

siblings, there is no clear statutory directive to deviate from this Court’s holdings that there 

is no permanent placement preference for a child’s relatives, generally. 

The grandparent preference and the sibling preference both are set forth in

distinct statutory provisions or subsections addressing only the preference and any 

direct circuit courts to consider “permanent placement with a relative.” The first such 

instance appears in West Virginia Code section 49-4-608(b) (2015), which applies when a 

child has not achieved permanency within twelve months of the dispositional decision. A 

similar directive is found in West Virginia Code section 49-4-608(e)(6), which sets out the 

required findings in circuit court orders following any permanency hearing, including that 

the circuit court provide “compelling reasons why it continues to not be in the best interest 

of the child to . . . be placed with a fit and willing relative.” Id. § 49-4-608(e)(6)(C)(iv). 

While the full language of that provision runs the gamut of placement options—

reunification, adoption, legal guardianships, and placement with a relative—the explicit 

reference to relative placement in the permanency context undeniably suggests the 

existence of a preference.

Finally, turning to the dispositional statute, West Virginia Code section 49-4-604

(Supp. 2022), the Legislature has intimated that the circuit court must consider “whether 

the child should . . . [b]e considered for permanent placement with a fit and willing relative” 

in the context of a temporary guardianship under section 49-4-604(c)(5)(E0(ii) (emphasis 

added). That directive is internally contradictory because it applies to a temporary 

placement, but directs consideration of a permanent placement with a relative. We 

addressed that statute in K. L. and determined that it only applied to temporary placements.

241 W. Va. at 555, 826 S.E.2d at 680. Nonetheless, this statutory inconsistency adds to 

confusion as to whether there exists a permanent placement preference for relatives of a 

child. 
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attendant considerations in effectuating that preference. For example, the grandparent 

preference embodied at West Virginia Code section 49-4-114(a)(3) (2015) provides: “[f]or 

purposes of any placement of a child for adoption by the department, the department shall 

first consider the suitability and willingness of any known grandparent or grandparents to 

adopt the child. . . .[the department] shall assure that the grandparents are offered the 

placement of the child prior to the consideration of any other prospective adoptive 

parents.” Id. (emphasis added). The language could not be plainer: grandparents are 

entitled to the first chance at adoptive placement of the child. The subsection then sets out 

plainly what is required to effectuate that preference (e.g., a successful home study). See 

id. Likewise, the statute establishing the sibling preference (West Virginia Code section

49-4-111 (2015)), delineates a preference for keeping siblings together, when possible, and 

if in the best interests of the children. There is no comparable statutory permanent 

placement preference for blood relatives. 

Abuse and neglect proceedings involve the protection of the most vulnerable 

persons in this State’s court system: our children. The development of rules concerning 

the protection of those children is a complex task, necessitating the careful balancing of 

many factors, not the least of which is the best interests of those children. While we may 

appreciate the potential benefits of a permanent placement preference for a child’s 

relatives, the fact remains that under our system of government the Legislature has the 

responsibility to examine the legal framework, assess any available evidence, consider 

expert opinions, and engage in a comprehensive evaluation of what would aid in serving 
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the best interests of the children of this state. See Syl. Pt. 2, in part, Huffman v. Goals Coal 

Co., 223 W. Va. 724, 679 S.E.2d 323 (2009) (“It is the duty of the Legislature to consider 

facts, establish policy, and embody that policy in legislation. It is the duty of this Court to 

enforce legislation unless it runs afoul of the State or Federal Constitutions.”) (emphasis in 

original). While a child’s relatives may offer potential advantages as placement options—

as the Legislature has recognized in providing that relatives receive preference for initial

placement, see West Virginia Code section 49-4-601a—it is not within the purview of this 

Court to create a permanent placement preference in the absence of clear legislative 

guidance. “The principles of judicial conservatism require us . . . not to bestow upon 

ourselves the role of superlegislature simply because we do not believe [the Legislature] 

went far enough.” Tug Valley Pharmacy, LLC v. All Plaintiffs Below in Mingo Cnty., 235 

W. Va. 283, 298, 773 S.E.2d 627, 642 (2015) (Benjamin, J., concurring) (emphasis in 

original).

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 For that reason, if the Legislature desires that such a preference exist, it must 

revise the Code to make that clear; and if the public wishes that such a preference exist, its 

remedy lies not with us, but with the elected members of the Legislature. 

In sum, I agree with the majority that currently there is no statutory 

preference for permanent placement of a child with blood relatives of that child. While 

2 It is essential to recognize that the judiciary’s role is to interpret and apply the law, 

not to legislate from the bench. See Henry v. Benyo, 203 W. Va. 172, 181, 506 S.E.2d 615, 

624 (1998) (“As a Court charged with reviewing and interpreting the will of the 

Legislature, we are constrained to abide by its mandates and to refrain from creating 

‘judicial legislation.’”).
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there are hints or suggestions, there is no clear statutory expression sufficient to justify this 

Court concluding that such a preference is the express public policy of the State. 

Accordingly, for the foregoing reasons I respectfully concur.