IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2024 Term 

_______________ 

No. 22-884 

_______________ 

IN RE M.F. III 

_____________________________________________ 

Appeal from the Circuit Court of Kanawha County 

The Honorable Joanna I. Tabit, Judge 

Juvenile Action No. 21-JA-291 

AFFIRMED, IN PART, AND REMANDED, IN PART, WITH DIRECTIONS 

_____________________________________________ 

Submitted: February 20, 2024 

Filed: June 12, 2024 

Sandra K. Bullman, Esq. Patrick Morrisey, Esq. 

Bullman and Bullman Attorney General 

Charleston, West Virginia Andrew T. Waight, Esq. 

Attorney for the Petitioners, Assistant Attorney General 

M.F. I and J.F. Charleston, West Virginia 

Attorneys for the Respondent, 

West Virginia Department of 

Human Services 

Sharon K. Childers, Esq. 

Charleston, West Virginia 

Guardian ad Litem for the Minor Child, 

M.F. III 

JUSTICE BUNN delivered the Opinion of the Court. 

FILED 

June 12, 2024 

released at 3:00 p.m.

C. CASEY FORBES, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
i

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 
ii

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 
iii

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). 
 1

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 Human Services (“DHS”),2 has not afforded them a home 

1

 In cases involving sensitive facts, we use initials instead of full names to 

refer to the parties. See, e.g., In re K.L., 241 W. Va. 546, 548 n.1, 826 S.E.2d 671, 673 n.1 

(2019); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016). See also

W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children). 

Additionally, several of the individuals involved in this case share the initials 

M.F. For ease of reference, we will refer to the paternal grandfather as M.F. I, the child’s 

father as M.F. II (“the Father”), and the child at issue in these proceedings as M.F. III. The 

Father’s additional two children, who are M.F. III’s half-siblings, will be referenced as 

M.F.-1 and M.F.-2. 

2

 Pursuant to West Virginia Code § 5F-2-1a (eff. 2023), the agency formerly 

known as the West Virginia Department of Health and Human Resources was terminated. 

It is now three separate agencies—the Department of Health Facilities, the Department of 

Health, and the Department of Human Services. See W. Va. Code § 5F-1-2 (eff. 2024). For 

purposes of abuse and neglect appeals, the agency is now the Department of Human 

Services (“DHS”). 
 2

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. 

3

 Although the Legislature amended West Virginia Code § 49-4-114(a)(3) in 

2024 to permit a circuit court to determine a grandparent’s suitability as an adoptive 

placement without a home study, the amended version of the statute was not in effect at 

the time of the events giving rise to this appeal. Therefore, we apply the 2015 version of 

West Virginia Code § 49-4-114(a)(3) to the facts of this case. For further discussion of this 

statute, see Section III.B., infra. 

4

 The circuit court terminated the Father’s parental rights; the Father 

appealed; and we affirmed the termination. See In re M.F.-1, No. 22-929, 2024 WL 

1193570 (W. Va. Mar. 20, 2024) (memorandum decision). 
 3

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 halfsibling7

 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, 

5

 Our recitation of the facts at issue in this case is necessarily limited due to 

the Grandparents’ restricted access to the record of the underlying abuse and neglect 

proceeding because they were not parties or intervenors below. Further factual details about 

M.F. III’s abuse and neglect proceeding are contained in the companion cases addressing 

the Father’s appeal and the appeal filed by N.C.-F., the mother of M.F. III’s half-siblings. 

See generally In re M.F.-1, No. 22-929, 2024 WL 1193570 (Father’s appeal); In re M.F.-1, 

No. 22-917, ___ W. Va. ___, ___ S.E.2d ___, 2024 WL _____ (June 12, 2024) (siblings’ 

mother’s appeal). 

6

 The Father ultimately pleaded guilty to voluntary manslaughter of the 

mother. 

7

 This child, who has the same mother as M.F. III but a different father, is not 

involved in this appeal. 
 4

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. 

8

 The circuit court also denied the Grandparents’ December 9, 2021 petition 

to be appointed as the child’s guardians, due, in part, to the ongoing abuse and neglect 

proceedings. 
 5

II. 

STANDARD OF REVIEW

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 twopart 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 R.M. v. Charlie 

A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). 
 6

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 

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 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. 

Id. We have interpreted this statute to mean that 

[f]oster parents, pre-adoptive parents, or [sic] relative 

caregivers who occupy only their statutory role as individuals 

entitled to a meaningful opportunity to be heard pursuant to 

West Virginia Code § 49-4-601(h) (2015) are subject to 

discretionary limitations on the level and type of participation 

as determined by the circuit court. 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. 
 7

Syl. pt. 4, in part, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540. 

Applying the In re H.W. standard of review to the facts of this case, we find 

that the circuit court did not err by denying the Grandparents’ motions to intervene because 

they are not within the class of individuals identified as parties to abuse and neglect 

proceedings given that they did not have any parental or custodial rights to M.F. III. See

Syl. pt. 1, In re H.W., 247 W. Va. 109, 875 S.E.2d 247. Accord W. Va. Code § 49-4-601(h). 

The Grandparents also are not within the category of persons who are afforded the 

opportunity to seek permissive intervention under West Virginia Code § 49-4-601(h) 

because they were not the child’s “[f]oster parents, pre-adoptive parents, [or] relative 

caregivers.” Id. Accord Syl. pt. 4, in part, State ex rel. C.H., 240 W. Va. 729, 815 S.E.2d 

540. 

Although the Grandparents now seek to be considered as an adoptive 

placement for the child, they did not state their desire to adopt the child in their first two 

motions to intervene in which they sought only placement of the child and/or visitation. In 

their first motion to intervene, the Grandparents requested to intervene “for the sole 

purpose of receiving placement of the minor child and/or grandparent visitation.” To 

support their motion, the Grandparents averred that “since the time of the minor child’s 

birth,” they “have been a consistent presence in the minor child’s life”; “very much love 

and care for their grandson”; and “have a bond with the child.” Yet, during the preliminary 

hearing at which the circuit court considered their motion, they requested the court to hold 
 8

their motion to intervene in abeyance pending paternity testing to ensure that M.F. III is, 

in fact, their biological grandchild. The circuit court then denied their motion. After 

paternity testing confirmed that the Grandparents are M.F. III’s biological paternal 

grandparents, they filed a second motion to intervene in which they again sought 

“permission to intervene . . . for the sole purpose of receiving placement of the minor child 

and/or grandparent visitation.” The circuit court also denied this motion. 

The Grandparents did not formally communicate their desire to adopt 

M.F. III to the circuit court until they filed their third motion to intervene in which they 

referenced West Virginia Code § 49-4-114(a)(3)9 and specifically requested that “they be 

granted permanent placement of their grandson [and] that they be granted consent to adopt 

their grandson.” At that juncture, the circuit court had not yet entered its order terminating 

the Father’s parental rights and had not yet placed M.F. III in the DHS’s permanent 

custody.10 Therefore, the child was not subject to adoptive placement by the DHS at the 

time the Grandparents filed their third motion to intervene. 

Moreover, although West Virginia Code § 49-4-114(a)(3) establishes a 

grandparental adoptive preference once a child has been placed in the DHS’s permanent 

custody, this preference is not absolute. See In re Elizabeth F., 225 W. Va. 780, 787, 696 

9

 Additional discussion regarding West Virginia Code § 49-4-114(a)(3) is set 

forth in Section III.B., infra. 

10 See In re M.F.-1, No. 22-929, 2024 WL 1193570, at *1. 
 9

S.E.2d 296, 303 (2010) (per curiam) (recognizing that “adoption by a child’s grandparents 

is permitted only if such adoptive placement serves the child’s best interests. If, upon a 

thorough review of the entire record, the circuit court believes that a grandparental adoption 

is not in the subject child’s best interests, it is not obligated to prefer the grandparents over 

another, alternative placement that does serve the child’s best interests.” (citations 

omitted)). Before the Grandparents could be considered pre-adoptive parents, they had to 

submit to a home study evaluation, and the circuit court had to determine whether placing 

M.F. III with the Grandparents for adoption would serve his best interests. See Syl. pt. 5, 

Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005) (“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.”). Therefore, the 

circuit court did not err by denying the Grandparents’ motions to intervene in the 

underlying abuse and neglect proceedings because they were not, at the time any of the 

motions were filed, within the class of individuals who may seek permissive intervention 

pursuant to West Virginia Code § 49-4-601(h). 

B. Grandparental Preference Statute 

Following the circuit court’s termination of the Father’s parental rights and 

its placement of M.F. III in the DHS’s permanent custody, the Grandparents now seek to 

invoke the grandparental adoption preference and request that they be granted a home study 
 10

to satisfy the statute’s requirements. West Virginia Code § 49-4-114(a)(3) grants 

grandparents wishing to adopt their grandchild preferential consideration as the child’s 

permanent adoptive placement if the statute’s requirements are satisfied: 

For 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. Once grandparents who are 

interested in adopting the child have been identified, the 

department shall conduct a home study evaluation, including 

home visits and individual interviews by a licensed social 

worker. If the department determines, based on the home study 

evaluation, that the grandparents would be suitable adoptive 

parents, it 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). 

We have interpreted this statute as requiring the satisfaction of two distinct 

statutory conditions: 

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. 

Syl. pt. 5, Napoleon S., 217 W. Va. 254, 617 S.E.2d 801. See also Syl. pt. 4, in part, 

Napoleon S., id. (“West Virginia Code [§ 49-4-114(a)(3) (eff. 2015)] provides for 

grandparent preference in determining adoptive placement for a child where parental rights 

have been terminated and also incorporates a best interests analysis within that 
 11

determination by including the requirement that the [DHS] find that the grandparents 

would be suitable adoptive parents prior to granting custody to the grandparents.”). In other 

words, operation of the grandparental adoption preference contemplates the satisfaction of 

two statutory criteria: the grandparents’ suitability as a permanent placement for the child, 

and the DHS’s completion of the grandparents’ home study. See W. Va. Code 

§ 49-4-114(a)(3). 

Here, the Grandparents assert that the circuit court erred by not directing the 

DHS to conduct a home study as contemplated by West Virginia Code § 49-4-114(a)(3). 

Examining this statutory language, we have held that the home study requirement is a 

necessary prerequisite to the application of the statutory grandparental adoption preference: 

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. 

Syl. pt. 9, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015). Therefore, the home study 

is an essential component of the grandparental adoption preference.11

The Grandparents contend, and the DHS concedes, that no home study of the 

Grandparents’ residence was ordered or undertaken to assess their suitability as adoptive 

parents for M.F. III after the circuit court terminated the Father’s parental rights to the child 

11 But see note 3, supra. 
 12

and placed him in the DHS’s permanent custody. However, it appears that the more 

pressing concern is that the DHS has not considered “the suitability” of the Grandparents 

as an adoptive placement for the child in the first instance. W. Va. Code § 49-4-114(a)(3). 

We previously have explained that an assessment of a grandparent’s suitability as an 

adoptive placement may be determinative of the need for the grandparent’s further 

evaluation through a home study: 

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. 

Syl. pt. 10, In re L.M., 235 W. Va. 436, 774 S.E.2d 517. Because the DHS has not complied 

with the statutory directive of first considering the suitability of the Grandparents as an 

adoptive placement for M.F. III, we find it necessary to remand this case, in part, with 

directions to the circuit court to order the DHS to comply with the requirements of West 

Virginia Code § 49-4-114(a)(3). 

Finally, we remind all parties that the preeminent concern is determining the 

permanent placement that serves M.F. III’s best interests. See Syl. pt. 5, Napoleon S., 217 

W. Va. 254, 617 S.E.2d 801. “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, 
 13

State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948). Accord Syl. pt. 5, 

in part, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996) (“In . . . custody matters, 

we have traditionally held paramount the best interests of the child.”). See also Syl. pt. 3, 

in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“[T]he primary goal in cases 

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

Therefore, on remand, following the DHS’s compliance with the requirements of the 

grandparental preference statute, the circuit court is directed to conduct a best interests 

analysis to determine the permanent placement that would best promote M.F. III’s welfare. 

IV. 

CONCLUSION 

For the foregoing reasons, we affirm the circuit court’s October 24, 2022 

order that denied the Grandparents’ motions to intervene in the underlying abuse and 

neglect proceeding. We further remand this case, in part, with directions to the circuit court 

to order the DHS to comply with the statutory requirements of West Virginia Code 

§ 49-4-114(a)(3) (eff. 2015). Finally, upon completion of the DHS’s statutory duties, the 

circuit court is directed to conduct a best interests analysis to determine M.F. III’s 

permanent placement. 

Affirmed, in part, and Remanded, in part, with Directions.