Foster Parents Must Timely Appeal Denial of Intervention; Non‑Intervenors Lack Standing to Challenge Permanency in Abuse-and-Neglect Cases

Introduction

In re O.D., No. 24-712 (Mason County CC-26-2023-JA-11), is a May 15, 2026 memorandum decision of the Supreme Court of Appeals of West Virginia dismissing an appeal brought by former foster parents (the “petitioners”) in an abuse-and-neglect case involving the child O.D. The petitioners had provided foster care for part of the proceedings but were denied intervention by the circuit court. Although the circuit court afforded them a “meaningful opportunity to be heard” at the permanency hearing—including calling and cross-examining witnesses—the court ultimately selected the child’s paternal grandmother, Respondent C.C., as the adoptive placement.

The appeal raised two core issues: (1) whether the circuit court erred in denying the petitioners’ motion to intervene; and (2) whether the circuit court erred by choosing grandmother adoption as the permanency plan rather than adoption by the foster parents. The Supreme Court dismissed the appeal on procedural grounds—untimeliness as to the intervention order—and on justiciability grounds—lack of standing to challenge permanency absent party status.

Summary of the Opinion

The Court held:

  • Untimeliness: The order denying intervention (entered August 20, 2024) was a final appealable order as to the foster parents, but they did not file a notice of appeal within the accelerated abuse-and-neglect timelines of the West Virginia Rules of Appellate Procedure. Their December 2, 2024 notice was far beyond the relevant deadlines, rendering the intervention challenge untimely.
  • No standing on permanency: Because the petitioners were denied intervenor status and were not a concurrent placement plan, they were nonparties. Under controlling precedent, non-intervenor foster parents lack standing to appeal substantive rulings in the underlying abuse-and-neglect case (including permanency placement).

Accordingly, the Court dismissed the appeal in its entirety. The circuit court’s permanency order—adoption by the paternal grandmother—remained undisturbed.

Analysis

Precedents Cited

1) In re G.S., 244 W. Va. 614, 855 S.E.2d 922 (2021)

In re G.S. supplies the central jurisdictional premise for the timeliness holding: “an order denying a motion to intervene in an abuse and neglect matter is a final appealable order with respect to the moving party.” By characterizing the denial of intervention as “final” as to the would-be intervenor, G.S. triggers the requirement that the affected nonparty must promptly appeal that denial (rather than wait to appeal later merits orders).

In In re O.D., the Court relied on G.S. to reject any implicit notion that intervention denial could be reviewed as part of a later appeal from the permanency order. Once the circuit court denied intervention, the clock began to run for the foster parents’ separate appeal.

2) In re P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020)

In re P.F. is cited for the related proposition that an intervention denial is appealable and that the Supreme Court has jurisdiction over such appeals (rejecting the argument that intervention denial is not final). In In re O.D., P.F. buttresses G.S. and reinforces the procedural pathway: the proper and immediate remedy is a timely appeal from the intervention order itself.

3) In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022)

In re H.W. drives the standing analysis. The Court quoted H.W. for the rule that non-intervenor foster parents’ appellate capacity is “limited to their role in the proceedings below as foster parents who requested, but were denied, intervenor status,” and that “as non-parties they do not have standing to challenge the further rulings of the circuit court concerning the underlying abuse and neglect case.”

Applying H.W., In re O.D. draws a bright line: even if foster parents are extensively heard at a permanency hearing, the absence of party status (via granted intervention) forecloses standing to appeal the substance of permanency outcomes. The only potentially appealable matter for them is the intervention denial—and only if appealed within the strict deadlines.

4) In re B.N., No. 24- 477, 2025 WL 2781763 (W. Va. Sep. 30, 2025) (memorandum decision)

The Court cited In re B.N. as a reinforcing, factually analogous memorandum decision: a non-party petitioner could not challenge the court’s dispositional decision. In In re O.D., B.N. functions as confirmatory authority that the standing rule in H.W. is consistently applied not only to foster parents but to nonparties generally in abuse-and-neglect appeals.

Legal Reasoning

1) Procedural rigor in abuse-and-neglect appeals

The Court’s first step was to identify the correct “judgment being appealed” for the intervention issue: the August 20, 2024 order denying intervention. Because that order was final and separately appealable as to the petitioners (In re G.S.; In re P.F.), the petitioners were required to comply with expedited appellate deadlines that apply uniquely in abuse-and-neglect cases.

The Court then applied the applicable rules:

  • W. Va. R. App. P. 11(b): required filing a notice of appeal and attachments within thirty days of entry of the order. The petitioners filed on December 2, 2024—more than 100 days after August 20, 2024.
  • W. Va. R. App. P. 11(f) and W. Va. R. P. for Child Abuse & Neglect Proc. 49: require that an appeal in an abuse-and-neglect case be “perfected” within sixty days of entry of the judgment being appealed. The petitioners perfected on January 23, 2025—again far outside the window.

The Court treated these deadlines as dispositive. Because the intervention appeal was not timely, the Court did not reach the merits of whether intervention should have been granted.

2) Standing depends on party status, not the degree of participation

The circuit court had attempted to balance foster-parent participation with confidentiality and party-control of the case: it denied intervention but granted a “meaningful opportunity to be heard,” including calling and cross-examining witnesses “as pertaining to the best interests of the child related to establishing permanent placement,” while denying “additional discovery or access to the [c]ourt records.”

On appeal, the Supreme Court treated that arrangement as irrelevant to standing. Under In re H.W., the controlling question is whether the foster parents are parties (intervenors) or nonparties. Nonparties cannot appeal merits rulings—here, the permanency placement decision. Thus, even robust participation at the hearing did not convert the petitioners into parties or confer appellate standing.

3) The permanency merits were insulated from review in this appeal

The circuit court’s permanency determination relied in part on W. Va. Code § 49-4-114(3), which “establish[es] a preference for adoptive placement with grandparents,” and it found the statutory presumption favoring grandmother placement was not overcome. However, the Supreme Court never evaluated whether the presumption was correctly applied or whether the best-interests findings were supported, because the petitioners lacked standing to litigate those merits on appeal.

The result is an important procedural reality: if a foster family is not granted intervention (and cannot timely appeal that denial), then even potentially significant disagreements about best interests, statutory placement preferences, and evidentiary rulings will be unreviewable at their request.

Impact

1) A reinforced two-step gatekeeping framework: timeliness first, standing second

In re O.D. demonstrates a stringent gatekeeping sequence in abuse-and-neglect appeals by foster parents:

  1. Intervention denial must be appealed immediately and on the accelerated schedule. Waiting to appeal until after permanency is decided forfeits review.
  2. Without intervention (party status), merits orders are generally off-limits on appeal. Even participation at permanency does not create standing.

2) Practical pressure on foster parents and counsel

The decision incentivizes rapid appellate decision-making. Counsel for foster parents must treat the intervention denial as the critical appellate event and must perfect the appeal within the compressed Rule 11/Rule 49 timelines. Any delay can functionally end the foster parents’ ability to obtain appellate review of both intervention and ultimate permanency.

3) Stability and finality in permanency outcomes

From the system’s perspective, the decision promotes finality in permanency placements by limiting who may appeal merits decisions and by strictly enforcing deadlines. This may reduce prolonged litigation that could delay adoption or guardianship placements, aligning with the broader policy preference for timely permanency.

4) Continued tension between “meaningful opportunity to be heard” and appellate exclusion

The circuit court’s order illustrates a middle-ground approach: allow foster parents to present best-interests evidence without granting them party status or access to confidential files. In re O.D. clarifies that such participation is procedurally meaningful at the trial level but does not necessarily provide a pathway to appellate review. Future litigants may argue about how robust the “meaningful opportunity” must be, but In re O.D. confirms that it does not substitute for intervention when it comes to standing to appeal.

Complex Concepts Simplified

  • Intervention: A procedure allowing a nonparty (here, foster parents) to become a party to a case. Party status usually brings rights such as fuller participation, access to certain filings (subject to confidentiality), and the ability to appeal merits decisions.
  • Final appealable order (as to the moving party): Even if a case continues for others, an order can be “final” for the person denied entry into the case—meaning they must appeal right away or lose appellate review.
  • Standing: The legal requirement that the appellant have a sufficient legal stake—typically party status—to challenge a decision on appeal. Here, being a foster parent and being heard at a hearing did not equate to standing to appeal permanency.
  • Perfecting an appeal: Completing required appellate steps within specified time limits (not merely filing a notice). Abuse-and-neglect appeals have accelerated “perfecting” deadlines.
  • Permanency plan: The court’s long-term plan for a child’s stable placement (e.g., reunification, adoption, guardianship).
  • Statutory placement preference/presumption (W. Va. Code § 49-4-114(3)): A legislative directive favoring adoptive placement with grandparents, unless evidence overcomes that preference in a particular child’s best interests.
  • Interstate Compact on the Placement of Children (ICPC): A process that must be followed before a child is placed across state lines, typically requiring home studies and approvals to ensure safety and compliance.
  • Meaningful opportunity to be heard: A due-process-oriented concept requiring that affected persons have a chance to present information to the court. It may include testimony and cross-examination, but it does not automatically confer party status.

Conclusion

In re O.D. firmly reiterates and operationalizes two procedural rules in West Virginia abuse-and-neglect law: (1) a denial of intervention is immediately appealable and must be appealed and perfected within the expedited deadlines; and (2) foster parents denied intervention are nonparties and therefore lack standing to appeal permanency and other merits rulings in the underlying case. The decision strengthens finality and timeliness in permanency litigation, while underscoring that trial-level participation—however meaningful—does not substitute for party status when it comes to appellate review.