Enforcement of Grandparent Placement Preference: Abuse of Discretion in Reliance on Unlawful DHS Recommendations

Introduction

In re A.F. (No. 23-698) is a 2025 Supreme Court of West Virginia decision addressing the denial of custody to maternal grandparents P.F. and R.F. (“the grandparents”) after their granddaughter A.F. was removed from her parents’ care in an abuse and neglect proceeding. Justice Trump filed a concurring opinion, agreeing that the circuit court erred by failing to make adequate findings of fact and conclusions of law under West Virginia Code § 49-4-114(a)(3) (the “grandparent preference statute”). He went further to propose a new syllabus point: a circuit court abuses its discretion when it places undue weight on West Virginia Department of Human Services (“DHS”) recommendations that violate the mandatory placement preference. This commentary examines the background, key holdings, the Court’s reasoning, and the broader implications of this ruling.

Summary of the Judgment

The Supreme Court unanimously found that the circuit court erred in two respects:

It denied the grandparents’ motion for custody without stating findings of fact and conclusions of law demonstrating consideration of the grandparent preference statute and A.F.’s best interests as required by law.
It improperly relied on DHS recommendations against placement with the grandparents, even though DHS had approved their home study and thus was statutorily bound to “assure” their offer of placement.

Justice Trump concurred separately to emphasize that DHS recommendations made in violation of the statute carry no weight and to adopt a new syllabus point establishing that such reliance constitutes an abuse of discretion. The case was remanded with instructions that the circuit court disregard the unlawful DHS recommendations on retrial.

Analysis

Precedents Cited

Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005): Held that DHS must observe the grandparent preference once a home study and psychological evaluation show suitability. Failure to do so is an abuse of discretion.
In re Elizabeth F., 225 W. Va. 780, 696 S.E.2d 296 (2010): Reinforced that grandparent adoption is permitted only if it serves the child’s best interests.
Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982): Confirmed that “shall” in a statute is mandatory absent contrary legislative intent.
Shafer v. Kings Tire Serv., Inc., 215 W. Va. 169, 597 S.E.2d 302 (2004): Defined abuse of discretion to include ignoring material factors or relying on improper factors.
Best‐interest authority: State ex rel. Lipscomb v. Joplin, Carter v. Carter, In re Katie S., all underscoring that a child’s welfare is the paramount consideration in custody decisions.
In re M.F., 250 W. Va. 338, 902 S.E.2d 887 (2024): Remanded for noncompliance with DHS’s mandatory directive to first consider grandparents for placement.
Guardian ad litem representation: In re Christina W. and In re Jeffrey R.L..

Legal Reasoning

West Virginia Code § 49-4-114(a)(3) requires that once DHS determines—based on a home study—that grandparents are suitable adoptive parents, DHS “shall assure that the grandparents are offered the placement of the child prior to the consideration of any other prospective adoptive parents.” The Court applied a strict interpretation of “shall,” mandating DHS compliance. Justice Trump emphasized:

DHS’s role ends with recommending lawful placement; it has no final say on custody—only the circuit court does.
By opposing the grandparents after approving their home study, DHS violated its statutory duty and furnished improper evidence.
Reliance on that improper evidence by the circuit court constitutes an abuse of discretion under Shafer.

The concurrence therefore proposes a new syllabus point: if DHS submits a recommendation in violation of the grandparent preference statute, any circuit court reliance on that recommendation amounts to an abuse of discretion.

Impact

This decision clarifies and strengthens the grandparent preference framework by:

Reinforcing DHS’s non-discretionary duty to offer placement to suitable grandparents as a statutory prerequisite.
Limiting circuit courts from considering or giving weight to DHS recommendations that flout the statutory mandate.
Protecting grandparents’ rights to step in for children removed from their parents’ care, subject always to a best-interests analysis.
Guiding future abuse and neglect proceedings to ensure transparent findings of fact, conclusions of law, and statutory adherence.

At the same time, the best-interests standard remains supreme: placement with grandparents is permitted only if it serves the child’s welfare.

Complex Concepts Simplified

Grandparent preference statute: A law requiring DHS to offer a removed child to grandparents for placement, if grandparents pass a suitability review.
Home study: An in-depth DHS investigation into a prospective caregiver’s background, home environment, and ability to meet a child’s needs.
Abuse of discretion: A legal standard where a court’s decision is overturned for ignoring mandatory rules, relying on improper factors, or misweighing evidence.
Syllabus point: A binding legal rule stated at the front of an appellate court’s opinion, controlling lower courts in future cases.
Guardian ad litem: A court-appointed lawyer responsible for representing a child’s best interests in abuse and neglect proceedings.

Conclusion

In re A.F. affirms that DHS must comply strictly with the grandparent preference statute once a suitable home study is completed, and that circuit courts must disregard any unlawful DHS recommendations in deciding custody. By proposing a new syllabus point, Justice Trump cements the principle that placing undue weight on DHS recs that violate a mandatory statutory directive is an abuse of discretion. This decision strengthens grandparents’ protective role, promotes statutory fidelity, and ensures that every custody determination remains firmly grounded in the best interests of the child.