IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2018 Term 

FILED 

No. 18-0485 July 6, 2018 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA STATE OF WEST VIRGINIA ex rel. C. H. and S. H., 

Foster Parents of J. L., Jr., 

Petitioners, 

v. 

THE HONORABLE LAURA V. FAIRCLOTH, Judge 

Of the Circuit Court of Berkeley County, West Virginia, 

THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN 

RESOURCES, A. M., J. L., AND M. V., 

Respondents. 

PETITION FOR WRIT OF PROHIBITION 

WRIT GRANTED 

Submitted: June 21, 2018 

Filed: July 6, 2018 

Stephanie E. Scales-Sherrin, Esq.
 

Martinsburg, West Virginia 

Attorney for Petitioners C. H. and S. H. 

Kimberley Crockett, Esq. 

Martinsburg, West Virginia 

Attorney for Respondent Mother 

A. M. 

Patrick Morrisey, Esq. 

Attorney General 

Melinda C. Dugas, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

Attorney for West Virginia 

Department of Health and 

Human Resources 
Debbie Flowers Payne, Esq.
 

Martinsburg, West Virginia 

Guardian ad Litem for 

Respondent Mother A. M. 

Nicholas Forrest Colvin, Esq. 

Martinsburg, West Virginia 

Attorney for Respondent Father 

J. L. 

Jeffrey K. Matherly, Esq. 

Martinsburg, West Virginia 

Guardian ad Litem for J. L., Jr. 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court. 

JUSTICE LOUGHRY suspended and therefore not participating. 
 

SYLLABUS BY THE COURT 

1. “In determining whether to entertain and issue the writ of prohibition 

for cases not involving an absence of jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether 

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the 

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not 

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter 

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent 

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s 

order raises new and important problems or issues of law of first impression. These factors 

are general guidelines that serve as a useful starting point for determining whether a 

discretionary writ of prohibition should issue. Although all five factors need not be 

satisfied, it is clear that the third factor, the existence of clear error as a matter of law, 

should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 

12, 483 S.E.2d 12 (1996). 

2. “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.” Syl. Pt. 1, In re Harley C., 203 W. Va. 594, 509 S.E.2d 

875 (1998). 

i 
3. “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.” Syl. 

Pt. 1, in part, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996). 

4. 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. 

5. “Although parents have substantial rights that must be protected, the 

primary goal in cases involving abuse and neglect, as in all family law matters, must be the 

health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 

589 (1996). 

ii 
6. “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.” Syl. Pt. 2, State ex rel. 

Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948). 

7. Foster parents are entitled to intervention as a matter of right when the 

time limitations contained in West Virginia Code § 49-4-605(b) (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. 

8. “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.” Syl. Pt. 1, in part, In re Carlita B., 185 W. 

Va. 613, 408 S.E.2d 365 (1991). 

iii 
 

WORKMAN, C. J.: 

Petitioners/foster parents C. H. and S. H.1 (hereinafter “foster parents”), seek 

a writ of prohibition precluding the Circuit Court of Berkeley County from enforcing its 

March 23, 2018, order denying their motion to intervene and its June 7, 2018, order 

granting the biological parents A. M. and J. L. (hereinafter collectively “biological parents” 

and/or “biological mother” and “biological father”) post-dispositional improvement 

periods. The foster parents assert that the circuit court exceeded its legitimate authority by 

not granting them an evidentiary hearing on their motion to intervene and by granting the 

biological parents post-dispositional improvement periods in excess of statutory time 

limitations. The Department of Health and Human Resources (hereinafter “DHHR”), J. 

L., Jr.’s guardian ad litem, and the biological parents argued below that intervention by the 

foster parents would have been inappropriate prior to termination of the biological parents’ 

parental rights and that the foster parents have no standing to challenge the postdispositional improvement periods. Nevertheless, DHHR now maintains that the 

biological parents’ parental rights should be terminated by operation of the statutory time 

limitations; J. L., Jr.’s guardian ad litem likewise now concurs in that assessment as to 

biological mother, for her failure to adequately demonstrate improvement. 

1 Consistent with our practice in cases involving sensitive facts, we identify the 

parties by initials only. See In re Jeffrey R.L., 190 W.Va. 24, 26 n.1, 435 S.E.2d 162, 164 

n.1 (1993). 

1 
 

Upon careful review of the briefs, the appendix record, the arguments of the 

parties, and the applicable legal authority, we find that the circuit court committed clear 

error as a matter of law and that the foster parents raise important issues of first impression. 

We therefore grant the writ of prohibition and remand this case with directions to the circuit 

court to vacate its order granting the biological parents post-dispositional improvement 

periods, grant the foster parents’ motion to intervene, and to immediately schedule this 

matter for disposition, conducting any and all further proceedings as necessary and 

appropriate in this matter in a timely manner. 

I. FACTS AND PROCEDURAL HISTORY 

Respondent biological parents A. M. and J. L. were each named in an abuse 

and neglect petition shortly after infant J. L., Jr. was born prematurely. The instant petition 

was based on domestic violence and contentious behavior between the biological parents 

at the hospital while J. L., Jr. was in the Neonatal Intensive Care Unit (NICU). After 

approximately eight weeks in the NICU, J. L., Jr. was placed into foster care with the foster 

parents, where he has remained. He is currently approximately twenty-one months old and 

continues to suffer from feeding and developmental issues. Biological mother A. M. has 

prior terminations to three children; biological father J. L. has none. Issues of inadequate 

2 
 

housing as pertained to both biological parents 2 and biological mother A. M.’s low 

intellectual functioning were later uncovered. The biological mother, who is also hard of 

hearing, was provided a guardian ad litem as well as counsel, and reasonable 

accommodation under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et 

seq., and West Virginia. Code §49-4-604(a)(1) (2016). 

Both biological parents admitted to abuse and neglect, whereupon a postadjudicatory improvement period was ordered for each. None of the orders entered herein 

are specific about the length of any of the improvement periods, but both biological parents 

were granted subsequent extensions of their respective improvement periods. They 

continued on general post-adjudication improvement periods until March 28, 2018, at 

which point the biological mother had been provided an approximate eleven-month 

2 Biological father J. L. resided and continues to reside with his parents throughout 

these proceedings. He apparently maintained at some point that this residence was 

inappropriate for J. L., Jr.: 

Q. You’ve reported consistently that while living in the 

home of your parents [J. L., Jr.] couldn’t come there but you’ve 

had housing this entire time, is that right? 

A. Yes, ma’am. 

3 
 

 

improvement period and the biological father had been provided a one-year, three-month 

improvement period.3 

During their respective improvement periods each biological parent had 

issues with visitation consistency—the biological father due to transportation issues and 

the biological mother due to a Virginia-based anonymous DHHR report resulting in 

termination of her visits in Virginia, where she lived with her father. Both biological 

parents were eventually compliant with services, but continually struggled to obtain 

consistent and appropriate housing. During their respective improvement periods, J. L., 

Jr.’s then-guardian ad litem4 sought to revoke their improvement periods based on weight 

loss and illness by J. L., Jr. after visits with biological mother A. M. 

In December 2017, the foster parents retained counsel who noticed her 

appearance; the circuit court ordered her removed from the e-filing system,5 however, 

3 The biological father and biological mother were adjudicated at different times; 

therefore, their improvement periods began at different times. Both general postadjudication improvement periods ended with the circuit court’s grant of a postdispositional improvement period on March 28, 2018. 

4

 Four guardians ad litem have been assigned to this case during its pendency. The 

guardian ad litem at the time revocation was sought was Christine Glover, who obtained a 

new job during the pendency of the case ultimately withdrawing. She was replaced by the 

current guardian ad litem, Jeffrey Matherly. 

5 Such a removal thereby precluded the foster parents’ access to the confidential 

court file. 

4 
 

 

given that the foster parents were not parties. Shortly thereafter, the foster parents moved 

to intervene. A hearing was conducted on the motion to intervene on February 14, 2018, 

whereupon the circuit court denied the motion. The circuit court found that the intervention 

was premature since it was still in the “fact-finding,” pre-termination stage but that the 

foster parents would be permitted to participate fully in the MDT meetings and attend 

hearings.6 The circuit court found there was nothing more the foster parents could offer 

as parties than they could in their capacity as participants. The foster parents’ counsel did 

not specifically request to introduce evidence at the time the hearing was conducted; 

however, the foster parents had previously moved to introduce testimony from their 

pediatric dietician by telephone. The circuit court denied that motion, finding that 

telephone testimony inhibited the court’s ability to observe the witness’ demeanor and was 

unfair to the biological mother who was intellectually challenged and hard of hearing. 

Other than this motion, the foster parents did not seek to introduce any other evidence on 

the record, nor did they object specifically to not being permitted to introduce evidence.7 

J. L., Jr.’s then-guardian ad litem supported the foster parents’ intervention. 

6 The court stated “[Y]ou have provided and will continue to provide excellent 

representation for the foster parents. You’re welcome to participate in all of the 

proceedings from MDTs to the court hearings but the Court does agree with the department 

that at this point to grant intervenor status would be premature[.]” The court further stated 

that the foster parents were welcome to renew their motion at a later date. 

7 The record reflects that the foster parents’ counsel objected simply to the denial of 

the foster parents’ motion to intervene. 

5 
 

Also at this hearing, the circuit court took evidence on the previous request 

of the guardian ad litem to revoke the biological parents’ improvement periods.8 The thenguardian ad litem’s request to revoke the improvement periods was based on the biological 

mother’s lack of care during visits, causing the child to be returned sickly and having lost 

weight and the biological father’s ostensible abandonment of his other child, who was also 

subject of this proceeding.9 The circuit court found no reason to revoke the improvement 

period after hearing the testimony of the biological mother’s separately-retained physician 

who opined that J. L., Jr. was healthy and not medically fragile, as had been suggested. 

The circuit court further found that any slight weight loss that had occurred was negligible 

and potentially due to weighing discrepancies and/or recent illness of the child. 

The hearing on the motion to revoke was continued to a later date generally 

for “anything further” on the revocation. It was then sua sponte rescheduled for a later 

8 While the appendix record reveals no formally filed motion, a report of the thenguardian ad litem requests revocation of the improvement periods. 

9 Despite the fact that the biological father’s as-yet-adjudicated abandonment of his 

older child may well ultimately serve to establish aggravated circumstances obviating the 

need for the DHHR to use reasonable efforts to reunify with J. L., Jr., the circuit court 

refused to allow the guardian ad litem to broach issues regarding the older child during the 

hearing on the biological parents’ revocation. See W. Va. Code § 49-4-604(7) (“For 

purposes of the court’s consideration of the disposition custody of a child pursuant to this 

subsection, the department is not required to make reasonable efforts to preserve the family 

if the court determines: . . . (C) The parental rights of the parent to another child have been 

terminated involuntarily[.]”). Moreover, the biological father’s treatment of the older 

child—adjudication notwithstanding—is unquestionably a relevant consideration 

regarding the revocation of his improvement period. 

6 
 

 

date due to a family emergency of the court. Apparently, the foster parents’ counsel 

provided notice of a scheduling conflict with the new date and was advised by court staff 

that the court would wait on her arrival at the hearing; however, that apparently did not 

occur. The hearing was resumed without the foster parents or their counsel being present, 

nor was their absence noted. During this hearing, which was presumably to be a 

continuation of the motion to revoke improvement period, the circuit court proceeded to 

award a six-month post-dispositional improvement period to the biological parents. No 

objection was made by any parties in attendance, including the new guardian ad litem.10 

As of that date, neither biological parent had independent housing, but the biological father 

was purportedly being permitted to reside permanently with his parents. The foster parents 

thereafter filed the instant writ. 

II. STANDARD OF REVIEW 

The factors for the issuance of a writ of prohibition are well-established: 

In determining whether to entertain and issue the writ of 

prohibition for cases not involving an absence of jurisdiction 

but only where it is claimed that the lower tribunal exceeded 

10 In response to the post-dispositional improvement periods, guardian ad litem 

Matherly stated 

I have no objection to that. I have slowly been, you know, I 

was only appointed to substitute as guardian ad litem in this 

case recently. There’s a long history here. A lot of 

documentation that I have to wade through. . . . So there’s still 

some catching up I need to do but based on everything I know 

today I have no objections to granting the post-dispositional 

improvement period and having an MDT so we can discuss it 

further. 

7 
 

its legitimate powers, this Court will examine five factors: (1) 

whether the party seeking the writ has no other adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a 

useful starting point for determining whether a discretionary 

writ of prohibition should issue. Although all five factors need 

not be satisfied, it is clear that the third factor, the existence of 

clear error as a matter of law, should be given substantial 

weight. 

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With this 

standard in mind, we turn to the foster parents’ assignments of error. 

III. DISCUSSION 

The foster parents make three assignments of error; however, the last two are 

effectively the same.11 First, the foster parents argue that the circuit court erred in denying 

their motion to intervene without an evidentiary hearing. Secondly, the foster parents argue 

that the circuit court erred in awarding a post-dispositional improvement period which 

purportedly violates the time limitations set forth in West Virginia Code § 49-4-601 et seq. 

11 In their third and final assignment of error, the foster parents argue that “the 

Department erred” in supporting extension of the improvement periods. Obviously, as 

characterized, purported “errors” of parties are not redressable on appeal. 

8 
and lacks sufficient findings to support such an improvement period. We will address each 

error in turn. 

A. INTERVENTION BY FOSTER PARENTS 

As indicated, the foster parents first claim that the circuit court exceeded its 

legitimate powers by denying their motion to intervene in absence of an evidentiary 

hearing. Although the foster parents frame this issue procedurally, in terms of the circuit 

court’s failure to hold an evidentiary hearing on their motion to intervene, it is clear from 

the parties’ arguments that the crux of the legal issue presented is the more substantial issue 

of a foster parent’s entitlement to intervene in a pending abuse and neglect proceeding. 

Although, as examined more fully infra, this Court has discussed the proper role of foster 

parents in abuse and neglect proceedings generally, the Court has not squarely addressed 

the issue of entitlement to party-intervention of foster parents and when such entitlement, 

if any, vests. 

The biological parents assert that the foster parents are not entitled to a writ 

of prohibition inasmuch as intervention is a matter of discretion with the circuit court and 

that the foster parents were nevertheless provided a meaningful opportunity to be heard 

through their involvement in court proceedings and MDT meetings. More pointedly, the 

biological father accuses the foster parents of seeking “to act as a surreptitious co-petitioner 

to work actively against the interests of the Respondent Parents and the appropriate goal of 

reunification so that they may obtain legal as well as physical custody[.]” In a similar vein, 

9 
 

the biological mother insists that granting intervenor status to the foster parents “would 

only seek to impose more delays, more contention, and more interference and malfeasance 

into the proceedings.” The DHHR likewise contends that foster parents do not have a 

“right” to party status and that any suggestion that the foster parents were constrained in 

their ability to advocate for themselves and/or the best interests of J. L., Jr. is disingenuous. 

These claims require us to review the degree of involvement available to foster parents in 

abuse and neglect proceedings and the measure of participation thereby afforded. 

1. Intervention and the Statutory “Right to be Heard” 

We must necessarily begin our analysis by reviewing the statutory 

framework for abuse and neglect proceedings to ascertain whether the Legislature has 

spoken to the issue of foster parent intervention.12 West Virginia Code § 49-4-601(h) 

(2015) provides that 

12 We note that the West Virginia Rules of Civil Procedure regarding intervention 

generally do not apply to abuse and neglect proceedings under Chapter 49 and therefore 

are not controlling. See W.V.R.C.P. 81(a)(7) (“Only rules 5(b), 5(e), and 80 apply in 

juvenile proceedings.”). Nevertheless, the Rule provides useful guidelines for the issue of 

intervention, generally. Rule 24(a) of the West Virginia Rules of Civil Procedure states: 

Intervention of Right. Upon timely application anyone shall be 

permitted to intervene in an action: (1) when a statute of this 

State confers an unconditional right to intervene; or (2) when 

the applicant claims an interest relating to the property or 

transaction which is the subject of the action and the applicant 

is so situated that the disposition of the action may as a 

practical matter impair or impede the applicant’s ability to 

protect that interest, unless the applicant’s interest is 

adequately represented by existing parties. 

10 
[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, preadoptive parents, 

and relative caregivers shall also have a meaningful 

opportunity to be heard. 

(emphasis added). This statute makes clear two things: 1) that foster parents must be given 

a “meaningful opportunity to be heard,” but 2) that this statutorily-mandated “right to be 

heard” involves something less than testifying, presenting, and cross-examining witnesses, 

which are rights provided to “[a] party or parties having custodial or other parental rights 

or responsibilities[.]” Id. These various “tiers” of participation set forth in this statute were 

recently examined by the Court. 

In State ex rel. H. S. v. Beane, 2018 WL 2467794 *5 (W. Va. May 30, 2018), 

this Court found that non-party foster parents who were not informed of or permitted to 

participate in a parental relative visitation issue were denied their “meaningful opportunity 

to be heard.” Relying primarily on Rule 46 of the Rules of Procedure for Child Abuse and 

Neglect, the Court found that the foster parents were definitional “persons entitled to 

notice” and therefore should have been notified of the hearing, which qualified as a “motion 

for modification” under Rule 46. Id. The Court discussed West Virginia Code § 49-4-

601(h)’s “two-tiered” format, concluding that non-party foster parents must be given a 

meaningful opportunity to be heard. Observing that the foster parents were subsequently 

granted intervenor status, the Court made clear that since they were not parties at the time 

of the hearing, they would not have been permitted to call or question witnesses. Id. n.12. 

11 
 

See also Kristopher O. v. Mazzone, 227 W. Va. 184, 70 S.E.2d 381 (2011) (granting writ 

of prohibition to non-party foster parents who were excluded from permanency hearing). 

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. Moreover, by noting that the foster parents’ right to call or question witnesses 

was necessarily curtailed by the fact that their motion to intervene was not granted until 

after the hearing on the visitation issue, Beane establishes by implication that partyintervenors have greater rights of participation than do parties merely given a statutory 

“right to be heard.” It is, in fact, those greater rights of participation, i.e. the ability to call 

witnesses, have proper notice of court proceedings, and access to the court file, which the 

foster parents herein specifically sought in moving for intervention.13 

13 The foster parents purportedly intended to call various service providers and 

expert witnesses regarding J. L., Jr.’s state of health and special needs during the hearing 

on the motion to revoke the biological parents’ improvement periods. Additionally, upon 

initially noticing her appearance in the case, the foster parents’ counsel was placed in the 

court’s e-filing system, but subsequently ordered to be removed from that system inasmuch 

as her clients were not parties. Finally, the foster parents bemoan the state of the appendix 

record submitted in support of their writ as being directly attributable to their lack of access 

to the official court record as non-parties. 

12 
This Court has addressed, at least in part, what participating rights 

intervening foster parents have in In re Harley C., 203 W. Va. 594, 509 S.E.2d 875 (1998). 

In Harley C., the biological parents contended that the foster parents, who had been granted 

intervenor status, had no right to appeal the circuit court’s disposition of the abuse and 

neglect proceedings. Id. at 595, 509 S.E.2d at 876. The Court observed that 

[b]y the very definition of intervention the intervenor is a party 

to the action. After intervention, he or she is as much a party to 

the action as the original parties, and renders himself 

vulnerable to complete adjudication of the issues in litigation 

between himself and the adverse party. To make his rights 

effectual he must necessarily have the same power as the 

original parties, subject to the authority of the court reasonably 

to control the proceedings in the case. 

Id. at 598, 509 S.E.2d at 879 (quoting 59 Am.Jur.2d Parties § 170 (1987)). Accordingly, 

the Court specifically found that “[intervenors] have all the rights and responsibilities of 

any other party to the action, including the right to appeal to this Court.” Id. Accord A.M. 

v. A.C., 296 P.3d 1026, 1032 (Colo. 2013), as modified on denial of reh’g (Mar. 18, 2013) 

(“[I]ntervention by a foster parent entitles the foster parent to the full panoply of rights that 

the existing parties enjoy. The designation ‘intervenor’ signifies how a party came to be 

involved in a case. By itself, the term does not restrict participation. Generally, courts grant 

intervenors the same rights as all other parties.”). The Court therefore held that “[f]oster 

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.” Syl. Pt. 1, Harley C., 203 W. Va. 594, 509 S.E.2d 875. 

13 
With the understanding that these cases establish that foster parents may 

occupy either a “right to be heard” participant role or a full party-intervenor role in abuse 

and neglect proceedings, we turn now to the case that all parties—both the foster parents 

and the biological parents—claim resolves these issues. The foster parents contend that In 

re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996) requires the circuit court to take 

evidence to consider the foster parents’ relationship with the child to determine if 

intervention is appropriate. The biological parents, however, maintain that Jonathan G. 

makes clear that there is no absolute right to intervention and that the circuit court may 

restrict, as it sees fit, the level of participation of foster parents under any circumstance. 

Moreover, the circuit court likewise appeared to rely on the language of Jonathan G. to 

conclude that intervention prior to termination is impermissible on the whole. 

In Jonathan G., the circuit court in an abuse and neglect matter granted foster 

parents “standing in th[e] matter, in order to present another perspective on the best 

interests of the minor[,]” but cautioned them that “their involvement . . . should not create 

the false impression that they have parental rights equivalent to [the biological parents], 

nor coequivalent rights of any sort with regard to [the infant].” Id. at 723, 482 S.E.2d at 

900. As a result, at the termination hearing, the circuit court permitted their counsel to be 

present, but did not allow them to present evidence or cross-examine witnesses. Id. at 727, 

482 S.E.2d at 904. 

14 
 

The Jonathan G. Court did not examine the propriety of the “standing” 

granted to the foster parents nor discuss requirements for party-intervention, but rather 

focused on the larger issue of the foster parents’ “role” in the proceedings. This 

examination was necessitated by the broad, sweeping language contained in the statute at 

that time: “In any proceeding pursuant to the provisions of 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.” W. Va. Code § 49-6-2(c) (1996). The Court contrasted this 

language with the United States Supreme Court’s admonition that “‘[h]owever substantial 

the foster parents’ interests may be, they are not implicated directly in the factfinding stage 

of a state-initiated permanent neglect proceeding against the natural parents.’” Id. at 729, 

482 S.E.2d at 906 (quoting Santosky v. Kramer, 455 U.S. 745, 761 (1982)). In an attempt 

to balance these interests, the Court held: 

The foster parents’ involvement in abuse and neglect 

proceedings should be separate and distinct from the factfinding 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. 

Syl. Pt. 1, Jonathan G., 198 W. Va. 716, 482 S.E.2d 893. The Court cautioned that “[w]hen 

foster parents are involved in these proceedings, however, the circuit court must assure that 

the proceeding does not evolve into a comparison of the relative fitness of the foster parents 

15 
 

versus the biological parents.” Id. at 729, 482 S.E.2d at 906. Scarcely the primer on foster 

parent intervention that the parties contend, Jonathan G. was, at base, an effort to curtail 

the overly-broad syllabus point contained in Bowens v. Maynard, 174 W. Va. 184, 324 

S.E.2d 145 (1984), which permitted intervention by anyone with physical custody of a 

child.14 In attempting to counter-act the effective “open door” policy created by Bowens, 

the Court deemed it appropriate to place discretionary limitations on foster parents’ 

involvement in such proceedings. 

In view of the fact that Jonathan G. pre-dates our current statutory right of 

foster parents to be heard, it is necessary to clarify the continued vitality and scope of its 

holding. As indicated, when Jonathan G. was authored, the counterpart to our current 

“right to be heard” statute provided that seemingly full participation was afforded to those 

with “custodial or other parental rights or responsibilities[.]” W. Va. Code § 49-6-2. 

Limitations on that participation were naturally in order, as discussed hereinabove. 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 

14 See Syl. Pt. 1, Bowens, 174 W. Va. 184, 324 S.E.2d 145 (“If a party has lawful 

physical custody of a child, she has the right to . . . be heard in any proceeding that concerns 

the child.”). 

16 
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, 70 

S.E.2d 381; Beane, 2018 WL 2467794. 

However, as indicated above, there is little support for the notion that an 

intervening party is not entitled to all the participatory rights and privileges of any other 

named party; in fact, Harley C. holds precisely the opposite. Therefore, we modify our 

holding in Jonathan G. as follows: 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) 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. 

Turning to the case at bar, it is clear that the foster parents were denied a 

meaningful opportunity to be heard at the March 28, 2018, hearing wherein the biological 

parents were granted a post-dispositional improvement period. The foster parents’ counsel 

maintains that she provided a notice of scheduling conflict and was assured by circuit court 

staff that the hearing would not proceed until she arrived. No party disputes this 

17 
 

 

representation and the hearing transcript plainly reveals that neither she nor the foster 

parents were present. No party alerted the circuit court to their absence before proceeding. 

In fact, the hearing transcript reveals that the circuit court had apparently lost any 

awareness of their involvement or interests at the time of the hearing, despite plainly ruling 

that they were “welcome” to participate in all court proceedings.15 This Court finds that 

the foster parents should not have merely been “welcome” to participate, but were 

absolutely entitled to participate by virtue of West Virginia Code § 49-4-601(h), 

irrespective of the circuit court’s previous denial of their motion to intervene. 

2. Temporal Requirements for Intervention of Right 

While our conclusion that the foster parents were denied their right to be 

heard through their absence at the March 28, 2018, hearing, we nevertheless find it 

appropriate to evaluate the basis of the circuit court’s denial of their motion to become 

party-intervenors. In that vein, we must assess the accuracy of the biological parents’ 

contention that Jonathan G. sets a temporal limitation on when a foster parent may be 

permitted intervention. The biological parents maintain that granting intervention prior to 

termination is per se inappropriate by virtue of the Court’s holding in Jonathan G. and as 

a practical matter. The biological parents collectively assert that permitting intervention 

prior to termination would result in a free-for-all contest of parental superiority designed 

15 Following the guardian ad litem’s recommendation on the post-dispositional 

improvement period, the circuit court inquired “And where is the child right now?” 

Guardian ad litem Matherly replied, “Foster care.” 

18 
 

 

to undermine the statutory goals of reunification. The circuit court likewise appeared to 

rely on Jonathan G.’s warning that foster parents’ involvement should be “separate and 

distinct” from the fact-finding portion of the termination proceeding to conclude that since 

termination had not occurred, intervention was prohibited. 

We observe initially that certainly this Court has encountered numerous 

cases where foster parents were granted intervention before termination occurred. See, 

e.g., Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (intervention granted prior to motion 

to terminate); In re J. G., II, 240 W. Va. 194, 809 S.E.2d 453 (2018) (same); Harley C. 

(intervention granted after reunification ordered and petition dismissed). Accordingly, 

neither the practice of other circuit courts nor this Court’s published opinions would vouch 

for such a reading of Jonathan G. 16 

16 In a handful of memo decisions, this Court has upheld the denial of intervention 

where participation was otherwise permitted. In most instances, however, intervention was 

sought by aggrieved relatives unlikely to be viable concurrent placements. See, e.g,, In re 

A.C., No. 12-0726, 2012 WL 5205707, at *3 (W. Va. Oct. 22, 2012) (circuit court noted 

concerns regarding placement with foster parents, including lack of bond, instability of 

home, prior domestic violence allegations); In re S.S., No. 14-1039, 2015 WL 1332668, at 

*5 (W. Va. Mar. 16, 2015) (petitioner grandparents found not suitable placement); In re 

M.H., No. 15-0804, 2016 WL 3449231, at *3 (W. Va. June 16, 2016) (DHHR instituted 

actions against petitioner due to allegations of child sexual abuse, drug abuse, and failure 

to protect child). But see In re A.M., No. 14-0698, 2014 WL 6635067, at *3 (W. Va. Nov. 

24, 2014) (upholding denial of intervention where parents wished to argue court granted 

“too much deference” in completing improvement periods and provide evidence of effect 

of parents’ drug abuse on children); State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL 

1788946, at *5 (W. Va. May 5, 2017) (upholding denial of intervention where petitioner 

permitted to testify at adjudicatory hearing, lawyer was permitted to monitor remainder of 

hearing, and petitioner personally participated in MDT meeting). 

19 
 

 

Moreover, it is clear that such a construction of Jonathan G. reads far too 

much into its holding. As indicated, the analysis contained in Jonathan G. does not 

specifically address the propriety or timing of intervention, nor does syllabus point one 

purport to do so. Our holding states merely that foster parents’ “involvement” should be 

distinct from “the fact-finding portion of the termination proceeding.” (emphasis added). 

Plainly read, and in context with its further admonition that the Court resist any urge to 

compare the relative fitness of the parties, this syllabus point simply directs the Court to 

give foster parents’ contributions only their due consideration as pertains to information 

regarding the child(ren), rather than the relative fitness of their biological parent(s). 

Importantly, Jonathan G. must also be placed into its proper historical 

context. It is critically important to note the changes that our abuse and neglect laws have 

undergone, particularly as pertains to the goal of reunification and the importance of the 

role of concurrent planning for permanency. See West Virginia Code § 49-4-604(a)(2) 

(2016). 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. However, reunification is no longer 

viewed as an “at all costs” goal. Instead, the Court has recognized that the aim of 

reunification does not require the courts to test the boundaries of opportunity provided to 

parents during improvement periods. Our more recent caselaw over the past ten to fifteen 

years regarding improvement periods illustrates the point. 

20 
This Court has endeavored to curtail perpetual improvement periods based 

upon only minimal improvement by holding that “‘courts are not required to exhaust every 

speculative possibility of parental improvement before terminating parental rights where it 

appears that the welfare of the child will be seriously threatened. . . .’” Syl. Pt. 7, in part, 

In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (quoting Syl. Pt. 1, In re R. J. M., 

164 W.Va. 496, 266 S.E.2d 114 (1980)); see also In re Isaiah A., 228 W. Va. 176, 185, 

718 S.E.2d 775, 784 (2010) (finding “glimmer of hope” standard inconsistent with criteria 

expressly provided by statute). We have more explicitly required that parental rights to 

improvement periods must give way to the bests interests of the child by holding that “[i]n 

making the final disposition in a child abuse and neglect proceeding, the level of a parent’s 

compliance with the terms and conditions of an improvement period is just one factor to 

be considered. The controlling standard that governs any dispositional decision remains 

the best interests of the child.” Syl. Pt. 4, In re B. H., 233 W. Va. 57, 754 S.E.2d 743 

(2014). These cases illustrate a more recent recognition that 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. 

In terms of the more recent appreciation of the significant stake foster parents 

have in these proceedings, one need look no further than the subsequent addition of “foster 

parents, preadoptive parents, and relative caregivers” to West Virginia Code § 49-4-601(h) 

as those who must be given a meaningful opportunity to be heard in these matters. Foster 

parents are also statutorily-mandated members of the multidisciplinary team and 

21 
 

statutorily-defined “person[s] entitled to notice and the right to be heard,” regarding 

modifications of dispositional orders, receipt of permanency planning reports, and 

permanency hearings.17 These statutory provisions reflect a Legislative recognition that 

foster parents, pre-adoptive parents and/or relative caregivers should occupy a specially 

designated posture in abuse and neglect proceedings that affords them involvement 

commensurate with their commitment to the process and the child. See also A.M., 296 P.3d 

at 1037 (identifying similar statutory provisions involving foster parents and recognizing 

them as crucial to “government’s interest to maintain a fair proceeding and protect the longterm welfare of children”). 

In that regard, the development of concurrent planning requirements has 

dramatically sharpened the interest foster parents have in the post-adjudicatory process. 

West Virginia Code § 49-4-604(a)(2) requires concurrent permanent placement planning 

with specific timelines “for when the placement is expected to become a permanent 

placement.” Indeed, this Court has expressly held that “[c]oncurrent planning, wherein a 

permanent placement plan for the child(ren) in the event reunification with the family is 

unsuccessful is developed contemporaneously with reunification efforts, is in the best 

interests of children in abuse and neglect proceedings.” Syl. Pt. 5, In re Billy Joe M., 206 

W. Va. 1, 521 S.E.2d 173 (1999); see also In Interest of Micah Alyn R., 202 W. Va. 400, 

409, 504 S.E.2d 635, 644 (1998) (Workman, J., concurring) (“[C]oncurrent planning for 

17 See W. Va. Code §§ 49-4-405(b)(3), 606(a), and 49-4-608(b) (2015), 

respectively. 

22 
permanency should occur even where parental rights are not terminated. This should be the 

practice in all abuse and neglect cases, so that there is a permanency plan for children where 

family reconciliation efforts are not successful for whatever reason.”). 

Concurrent planning, therefore,—where foster parents are anticipated to be 

the alternate permanent placement—naturally heightens the vested interest foster parents 

have in these proceedings. It is the goal of this planning to ensure that the concurrent 

placement is ready, willing, and able to proceed to permanency with the subject child if 

and when termination occurs. What being a concurrent placement requires of foster parents 

then is that they commit themselves fully to the anticipatory permanent physical and legal 

custody of the child and be appropriately bonded with and invested in the well-being of the 

child. Naturally, this results in attachment and a desire to maintain a loving bond and 

involvement in the child’s life, even with an understanding that the child could be reunified 

with one or more parents. We should expect and desire nothing less of people who may 

ultimately share their lives, homes, and families with an abused or neglected child. 

This vested interest naturally spikes when termination appears imminent, or 

more importantly, is statutorily mandated. To that end, the foster parents assert that their 

intervention became “ripe” when the DHHR was statutorily required to seek termination. 

West Virginia Code § 49-4-605 (2017) provides that 

the department shall file or join in a petition or otherwise seek 

a ruling in any pending proceeding to terminate parental rights 

. . . . [i]f a child has been in foster care for fifteen of the most 

23 
 

 

recent twenty-two 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 sixty days after the child 

is removed from the home[.] 

The only exceptions to this requirement are if the child has been permanently placed with 

a relative, a “compelling reason,” or the DHHR “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). DHHR has established none of those exceptions and appears to concede the 

foster parents’ position on this point inasmuch as it has now represented to the Court that 

it must move for termination at this point in the proceedings.18 

The foster parents further cite to West Virginia Code § 49-4-610(9) (2015) 

as necessitating termination, thereby giving rise to their entitlement to intervene. West 

Virginia Code § 49-4-610(9) states: 

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). J. L., Jr. was in foster care fifteen of the most recent twenty-two months 

as of January 18, 2018, yet the circuit court made no finding of compelling circumstances 

18 In fact, this would appear to have been required of the DHHR at the time that it 

agreed to a post-dispositional improvement period as well, given that J. L., Jr. had been in 

foster care fifteen of the most recent twenty-two months prior to that hearing. 

24 
 

to justify the continual improvement periods. J. L., Jr. has now been in the foster parents’ 

care twenty of his twenty-one months of life. 

Consistent with our preeminent principle that “the primary goal in cases 

involving abuse and neglect . . . must be the health and welfare of the children” and that 

“the welfare of the child is the polar star by which the discretion of the court will be 

guided,” we find that the intervention of foster parents when termination is imminent or 

required furthers these goals. Syl. Pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 

589 (1996); Syl. Pt. 2, in part, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 

221 (1948). We observe that intervention of right prior to adjudication or early on in a 

post-adjudicatory time period has little utility given the underdeveloped nature of the 

proceedings and the need to permit the statutory process to proceed as intended. However, 

at such time as termination appears imminent due to lapse of statutory improvement period 

time frames or other factors requiring the DHHR to seek termination, it is in the interests 

of all parties that the foster parents be recognized as occupying a critically important 

position relative to the child and that such position be dignified with full intervenor status 

if sought.19 

19 As previously indicated, although the Rules of Civil Procedure do not apply to 

these proceedings, we find instructive this Court’s holding on the “interest” required to 

substantiate intervention of right. The Court has held that 

25 
 

We find this triggering time frame of imminent termination consistent with 

the point in time when foster parents attain “a statutorily recognized expectancy in a 

continued relationship between themselves and their foster children[.]” In re Dependency 

of J.H., 815 P.2d 1380, 1388 (Wash. 1991). We note further the practical necessity of 

permitting foster parents to intervene to compel compliance with statutory time frames 

where neither the DHHR nor guardian ad litem have done so.20 This is an issue this Court 

has repeatedly encountered; invariably it is the foster parents who seek to bring the matter 

before the Court. See, e.g., J. G., II, 240 W. Va. 194, 809 S.E.2d 453 (foster parents 

appealed where circuit court failed to make findings, disregarded lack of substantial 

improvement, and time limitations on improvement periods). The reason for this is 

[t]o justify intervention of right under West Virginia Rule of 

Civil Procedure 24(a)(2), the interest claimed by the proposed 

intervenor must be direct and substantial. A direct interest is 

one of such immediate character that the intervenor will either 

gain or lose by the direct legal operation and effect of the 

judgment to be rendered between the original parties. A 

substantial interest is one that is capable of definition, 

protectable under some law, and specific to the intervenor. In 

determining the adequacy of the interest in a motion to 

intervene of right, courts should also give due regard to the 

efficient conduct of the litigation. 

Syl. Pt. 4, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). We 

find that these considerations are amply fulfilled as pertains to concurrent placement foster 

parents when termination of parental rights appears imminent. 

20 See Syl. Pt. 2, State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 

(1996) (“Prohibition is available to abused and/or neglected children to restrain courts from 

granting improvement periods of a greater extent and duration than permitted under West 

Virginia Code §§ 49-6-2(b) and 49-6-5(c) (1995).”). 

26 
obvious—at the point in time when the DHHR must by statute seek termination and/or the 

circuit court has permitted the matter to linger past the Legislatively-determined outer limit 

of “fifteen of the most recent twenty-two months,” the foster parents have an undeniable 

interest and expectancy in the permanency aspect of the proceeding. 

Accordingly, we hold that foster parents are entitled to intervention as a 

matter of right when the time limitations contained in West Virginia Code §49-4-605(b) 

and/or West Virginia Code § 49-4-610(9) are implicated, suggesting that termination of 

parental rights is imminent and/or statutorily required. We hold little concern that this 

intervention will inject an additional adversarial component to the proceedings, cause 

unnecessary delay, or prompt the circuit court to conflate the goals of abuse and neglect 

proceedings with selecting a superior caregiver. As the Supreme Court of Colorado 

observed, 

the presentation of evidence by any party is limited by familiar 

principles of evidence. The prohibition on irrelevant or 

needlessly cumulative evidence should ameliorate the 

potentially significant increase in the volume of information at 

the termination hearing. Juvenile courts act as gatekeepers so 

that, in cases where additional parties have intervened, the 

termination hearing ought not become awash with unnecessary 

evidence or devolve into a contested custody hearing. 

A.M., 296 P.3d at 1034 (citation omitted). The A. M. Court wisely observed that precluding 

intervention prior to termination may 

actually serve to diminish the accuracy of decisions by 

withholding admissible, highly relevant information from a 

juvenile court’s consideration merely because it comes from a 

foster parent. Exclusion of relevant information that foster 

27 
parent intervenors might provide would therefore heighten, not 

mitigate, the risk of an erroneous decision at the termination 

hearing. 

Id. at 1037. The Court is confident that our lower courts can properly utilize the vitally 

important information regarding the child held exclusively by foster parents for its intended 

purpose rather than a means to deprive the biological parents of the protections of the abuse 

and neglect process. 

Despite our extension of the right of intervention to foster parents when 

termination is imminent or required, we strongly caution that this right bestows no 

additional entitlements or procedural or substantive rights to foster parents above those 

granted by statute. As well-stated by the Supreme Court of Nebraska regarding its 

grandparent intervention statute, 

[a]lthough grandparents have a right to intervene in 

dependency proceedings involving their minor grandchildren 

prior to final disposition, this right “does not confer any special 

entitlements or priorities upon them with respect to temporary 

custody, placement, or any other issue before the juvenile 

court.” Rather, “[e]xercising their right of intervention simply 

enables those grandparents wanting to keep abreast of 

dependency proceedings to receive notice and have an 

opportunity to be heard with respect to actions taken by a 

juvenile court which could significantly affect their 

relationship with their grandchildren.” 

In re Interest of Jackson E., 875 N.W.2d 863, 866-67 (Neb. 2016) (quoting In re Interest 

of Kayle C., 574 N.W.2d 473, 478 (Neb. 1998)). Furthermore, our holding today in no way 

undermines our conviction that it is in a child’s best interests to be unified with his or her 

natural family if reasonably possible and that foster parents serve a vital role in fulfilling 

28 
 

that specific goal. See In re G.C., 735 A.2d 1226, 1229 (Pa. 1999) (citations omitted) (“[I]f 

possible, a child should grow up with its parents. . . . It is the foster parents’ responsibility 

to help to achieve these purposes—not to subvert them.”). However, at the point in time 

when termination is imminent or required, those goals have plainly already given way to 

the paramount necessity of attaining permanency for the child in a home environment 

which serves his or her best interests. Where foster parents are designated as a concurrent 

permanent placement, there is little question that their interests in the proceedings evolve 

in a decidedly more substantial way, just as our concurrent planning system contemplates. 

Turning now to the foster parents’ requested writ of prohibition, we find that 

this case presents “new and important problems or issues of law of first impression,” 

sufficient to satisfy the standard for issuance of a writ. Syl. Pt. 4, in part, Hoover, 199 W. 

Va. 12, 483 S.E.2d 12. As indicated above, we easily conclude that the foster parents were 

denied a meaningful opportunity to be heard as required by West Virginia Code § 49-4-

601(h) insofar as the biological parents were granted post-dispositional improvement 

periods without the foster parents’ presence or participation at the hearing. We further 

find, however, that the foster parents are entitled to intervene as parties to the action 

inasmuch as J. L., Jr. has been in their care for fifteen of the most recent twenty-two months 

and the time frames requiring the DHHR’s efforts to seek termination are squarely 

implicated. We therefore grant the writ of prohibition to require the circuit court to vacate 

its order granting the biological parents post-dispositional improvement periods and grant 

the foster parents’ motion to intervene. 

29 
 

B. EXCEEDING IMPROVEMENT PERIOD TIME STANDARDS
 

In their final assignment of error, the foster parents attack directly the circuit 

court’s award of a post-dispositional improvement period, which they assert is in excess of 

statutory limitations. The biological parents contend that the foster parents simply have no 

standing to attack a disposition as non-party foster parents.21 However, as a practical 

matter, our resolution hereinabove vacates the biological parents’ post-dispositional 

improvement periods, thereby requiring the circuit court to revisit the disposition of this 

matter. Our requirement that the foster parents be granted intervenor status therefore 

permits them to assert their objections to the award of any further improvement periods 

directly to the circuit court. 

We remind the circuit court and the parties, however, that “[i]mprovement 

periods are [] regulated, both in their allowance and in their duration, by the West Virginia 

Legislature, which has assumed the responsibility of implementing guidelines for child 

21 While we decline to address the standing issue raised by the biological parents, 

as pertains to our holding regarding intervention, we note that “a majority of courts argue 

that the interest required for intervention is not as weighty as the interest required for 

standing[.]” Elizabeth Zwickert Timmermans, Has the Bowsher Doctrine Solved the 

Debate?: The Relationship Between Standing and Intervention As of Right, 84 Notre Dame 

L. Rev. 1411, 1412 (2009). Cf. W. Va. Code § 48-9-103(b) (2001) (authorizing court’s 

discretion to “grant permission to intervene to other persons or public agencies whose 

participation in [child custody] proceedings . . . it determines is likely to serve the child’s 

best interests[,]” but stating “[s]uch persons or public agencies do not have standing to 

initiate an action under this article.”). 

30 
abuse and neglect proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 

542, 551 (2000). More importantly and as well-illustrated in this case, 

the early, most formative years of a child’s life are crucial to 

his or her development. There would be no adequate remedy at 

law for these children were they permitted to continue in this 

abyss of uncertainty. We have repeatedly emphasized that 

children have a right to resolution of their life situations, to a 

basic level of nurturance, protection, and security, and to a 

permanent placement. The legislature has recognized this by 

limiting the extent and duration of improvement periods a 

court may grant in an abuse and neglect case. 

Amy M., 196 W. Va. at 257-58, 470 S.E.2d at 211-12 (emphasis added). Further, it is 

necessary to reiterate the self-evident instruction the Court articulated earlier in this Court 

term: 

The procedural and substantive requirements of West Virginia 

Code § 49-4-601 et seq., the Rules of Procedure for Child 

Abuse and Neglect, and our extensive body of caselaw are not 

mere guidelines. The requirements contained therein are not 

simply window dressing for orders which substantively fail to 

reach the issues and detail the findings and conclusions 

necessary to substantiate a court’s actions. The time limitations 

and standards contained therein are mandatory and may not be 

casually disregarded or enlarged without detailed findings 

demonstrating exercise of clear-cut statutory authority. 

Discretion granted to the circuit court within this framework is 

intended to allow the court to fashion appropriate measures and 

remedies to highly complex familial and inter-personal 

issues—it does not serve as a blanket of immunity for the 

circuit court to manage abuse and neglect cases as its whim, 

personal desire, or docket may fancy. 

J. G., II, 240 W. Va. at ___, 809 S.E.2d at 463. 

31 
Finally, we take note of the parties’ representations during oral argument that 

the circuit court has scheduled a dispositional hearing for September 2018. We find this 

delay wholly unacceptable and observe that, upon our review of the supplemental hearing 

transcript, the delay is occasioned by the competing calendars of the court and counsel. 

We remind both the circuit court and the parties that “[c]hild 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.” Syl. Pt. 

1, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365. Accordingly, upon issuance of the 

writ, the circuit court is directed to schedule this matter for disposition at its earliest 

opportunity and direct counsel that they are to manage their schedules in a manner which 

facilitates this immediate scheduling. 

IV. CONCLUSION 

Accordingly, for the reasons stated herein, the Court grants the requested writ 

of prohibition. The Clerk is hereby directed to issue the mandate contemporaneously 

herewith. 

Writ granted. 

32