In re B.N.: Continued-Association Visitation May Be Ordered Without a Grandparent Visitation Act Motion; Non‑Intervenor Grandparents Cannot Challenge Reunification

Introduction

In In re B.N., No. 24-477 (W. Va. Sept. 30, 2025), the Supreme Court of Appeals of West Virginia affirmed a circuit court’s dismissal of an abuse and neglect proceeding, reunified a two-year-old child with his father, and upheld a limited visitation arrangement for the child’s maternal grandmother. The memorandum decision addresses a recurring procedural and substantive tension: how circuit courts should handle visitation for former relative caregivers at the conclusion of abuse-and-neglect proceedings when no formal petition has been filed under the Grandparent Visitation Act (GVA), W. Va. Code § 48-10-101 et seq.

The grandmother, L.N., appealed pro se, arguing that the circuit court’s order gave her an “insufficient and impractical” schedule. The Court rejected her challenge, clarifying that because she had not filed a motion under the GVA, the circuit court properly fashioned a limited, delineated contact plan under the child’s “continued association” rights rather than the GVA framework. The Court also held that, as a non-party who was denied intervenor status below, the grandmother lacked standing to challenge reunification, to complain about the adequacy of investigations, to seek a change of venue, or to obtain confidential transcripts of the abuse and neglect proceedings.

Summary of the Opinion

The Court affirmed the circuit court’s July 1, 2024 Dismissal Order. Key points include:

No Grandparent Visitation Act motion was filed; therefore, the 13 statutory factors in W. Va. Code § 48-10-502 did not govern.
Even absent a GVA motion, a circuit court may order continued contact between a child and a former caregiver if it serves the child’s best interests under the “continued association” doctrine, provided the plan is properly delineated and not left entirely to parental discretion.
The visitation awarded—one week per summer plus a right of first refusal whenever the father works out of town (which occurs often), and any additional time at the father’s discretion—was within the circuit court’s sound discretion and not an abuse of that discretion.
As a non-party denied intervention, the grandmother lacked standing to challenge reunification, to contest the sufficiency of DSS/CPS or guardian ad litem investigations, to raise unpreserved complaints (e.g., alleged noncompliance with visitation terms, venue transfer), or to obtain confidential transcripts.
Venue was proper in Kanawha County under W. Va. Code § 49-4-601(a); arguments to the contrary were not preserved.

Factual and Procedural Background

DHS initiated abuse-and-neglect proceedings in May 2023 against the father, K.H., after his arrest for domestic battery and drug possession. The child had been in the father’s custody since the mother’s death in 2022. The circuit court denied the maternal grandmother’s motion to intervene in July 2023 (though it allowed her counsel to monitor). The father was adjudicated as an abusing/neglecting parent in October 2023 but was granted a post-adjudicatory improvement period. During the case, the child was placed with the grandmother as a relative caregiver.

In March 2024, the circuit court found that the father successfully completed his improvement period and ordered reunification. The court asked the father and grandmother to submit “parenting plans” proposing visitation to preserve the child’s relationship with the grandmother. The grandmother sought every-other-weekend time, all holidays in odd years, and one full week each summer month; the father proposed a right of first refusal whenever he worked out of town, plus one week each summer. The guardian ad litem recommended the father’s proposal; DHS concurred. The court ordered reunification and awarded the grandmother one week of summer visitation plus a right of first refusal during the father’s out-of-town work, with any additional contact at his discretion. The grandmother appealed.

Detailed Analysis

Precedents and Authorities Cited

Standard of Review: The Court reviewed factual findings for clear error and legal conclusions de novo. Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
Grandparent Visitation Act as Exclusive Avenue: The GVA is the “exclusive means” for grandparents to seek visitation. Syl. Pt. 2, Alyssa R. v. Nicholas H., 233 W. Va. 746, 760 S.E.2d 560 (2014) (quoting Syl. Pt. 1, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013)). When an abuse-and-neglect case is pending, a GVA motion must be filed and heard in the circuit court. W. Va. Code § 48-10-402(d).
Continued Association Doctrine: Children have a right to continued association with individuals with whom they have formed close bonds, including foster parents, if it is in their best interests. Syl. Pt. 11, in part, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996). The best interests of a child are served by preserving important relationships. Syl. Pt. 2, State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993). Courts should inquire into such relationships and, if appropriate, fashion a plan for continued association. Matter of Brian D., 194 W. Va. 623, 638, 461 S.E.2d 129, 144 (1995).
Delineated Visitation (Not Held Hostage): Visitation plans should be “properly delineated,” not left entirely to a parent’s discretion lest that parent hold access “hostage.” In re K.S., 246 W. Va. 517, 530–31, 874 S.E.2d 319, 332–33 (2022).
Deference and Abuse of Discretion: Child custody and visitation determinations are within the sound discretion of the circuit court and will not be disturbed absent an abuse of discretion. Syl. Pt. 2, In re G.G., 249 W. Va. 496, 896 S.E.2d 662 (2023) (quoting Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977)).
Standing of Non-Intervenors: Non-party foster parents denied intervention lack standing to appeal rulings concerning the underlying abuse-and-neglect case. In re H.W., 247 W. Va. 109, 120, 875 S.E.2d 247, 258 (2002) (as cited). Foster parents granted intervention acquire full party rights. Syl. Pt. 4, in part, State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
Preservation and Record: Issues must be raised below with citations showing how and when. W. Va. R. App. P. 10(c)(7).
Venue: Venue in abuse-and-neglect is proper in the county where the child resides, the custodial respondent resides, or the abuse occurred. W. Va. Code § 49-4-601(a).
Confidentiality: Abuse-and-neglect court records are confidential; non-parties are not entitled to transcripts. W. Va. R. P. Child Abuse & Neglect Proc. 6a(b).

Legal Reasoning

1) Framing the issue and the controlling law. The grandmother did not invoke the GVA by filing a motion under W. Va. Code § 48-10-301. Accordingly, the circuit court was not required to apply the GVA’s 13-factor test in § 48-10-502. The Supreme Court emphasized that the GVA remains the exclusive avenue when a grandparent seeks judicially ordered visitation; but in this case, the court had instead requested competing “parenting” proposals to guide a transitional contact plan at reunification.

2) Source of authority to award non-parent contact at dismissal. The Court relied on the “continued association” doctrine recognized in In re Jonathan G., Treadway, and Brian D.: a child’s best interests may be served by preserving established relationships with former caregivers. The circuit court had a child-centered basis to craft some defined access for the grandmother because the child—only two years old—had lived with her through the case and had formed a meaningful bond. This power operates independently of the GVA when the court is concluding an abuse-and-neglect case and addressing reunification.

3) Requirement that visitation be delineated. Drawing on In re K.S., the Court underscored that courts should not leave contact wholly to the custodial parent’s whim. While the order here allowed additional visitation at the father’s discretion, it also set a minimum, enforceable baseline: one week each summer plus a right of first refusal whenever the father worked out of town. Given record evidence that the father frequently traveled, the Court accepted this structure as meaningfully delineated rather than purely discretionary.

4) Balancing parental prerogatives. The Court considered the guardian ad litem’s and DHS’s recommendations against a quasi-parental schedule (e.g., alternating weekends) because such a schedule for a grandparent could infringe a fit parent’s rights upon reunification. The chosen plan preserved the child-grandmother bond without displacing the father’s parental authority.

5) Appellate deference. Applying the abuse-of-discretion standard, the Court held the circuit court’s tailored plan was reasonable and within its discretion. That the grandmother preferred a more expansive schedule did not prove an abuse of discretion.

6) Limits of the appeal given non-party status. Because the grandmother was denied intervenor status, she lacked standing to challenge (a) the reunification disposition, (b) the adequacy of CPS or guardian investigations, (c) alleged violations of the visitation order that were not raised below, (d) venue, and (e) entitlement to confidential transcripts. These issues were either outside her limited role, unpreserved, or barred by confidentiality rules.

What This Decision Clarifies and Why It Matters

Interplay of GVA and abuse-and-neglect dismissals: If a grandparent wants full consideration under the GVA—including findings on the statute’s 13 factors—they must file a motion under W. Va. Code § 48-10-301 (and § 48-10-402(d) if the abuse-and-neglect case is pending). Absent that motion, the circuit court may still order limited “continued association” contact at dismissal based on best interests.
Minimum, enforceable baselines are favored: Courts should set at least some defined visitation rather than leave all access to the custodial parent’s discretion, thus preventing “hostage-taking” and promoting stability for the child.
Parental primacy post-reunification: Schedules resembling parental visitation (e.g., alternating weekends and major holidays) for non-parents are disfavored at reunification unless warranted by controlling statutes or circumstances. The Court credited the guardian and DHS in declining an every-other-weekend regime here.
Procedural posture controls appellate scope: Non-intervenor caregivers cannot appeal core merits rulings (like reunification), cannot demand confidential transcripts, and must preserve any enforcement issues in the circuit court first.

Impact on Future Cases and Practice

For Circuit Courts

Authority affirmed to craft limited, delineated contact at dismissal to preserve bonds with former caregivers under the continued-association doctrine, even if no GVA motion is pending.
Consider using tools like the “right of first refusal” as a pragmatic way to preserve contact without awarding quasi-parental timesharing.
Build a record showing why the plan furthers the child’s best interests (age, attachment, caregiver’s role, practicalities of the custodial parent’s schedule) and avoid leaving all contact to the parent’s discretion.

For Grandparents and Relative Caregivers

If robust visitation is sought (e.g., alternating weekends, holiday schedules), file a GVA motion so the court must weigh the § 48-10-502 factors. While the abuse-and-neglect case is pending, that motion should be filed in the circuit court. After dismissal, GVA petitions ordinarily proceed in family court.
Seek intervenor status early if you intend to litigate merits issues—without intervention, you will be confined to limited participation and cannot challenge dispositions, seek transcripts, or appeal broader rulings.
To enforce a delineated plan or allege violations, return to the circuit court with a motion for enforcement or contempt. Appellate courts require preservation and a developed record.

For Parents Reunified With Their Children

Expect the court to preserve important relationships with former caregivers when it serves the child’s best interests, but also to avoid schedules that infringe parental prerogatives absent a statutory basis.
Comply with the delineated baseline; discretionary additional time remains your choice, but the minimum ordered contact is enforceable.

For Guardians ad Litem and DHS

This decision underscores the Court’s reliance on GAL and DHS recommendations for child-centered, practical visitation structures at reunification.
While no minimum number of home visits is mandated, building a clear record of investigation and recommendations helps insulate trial court decisions on appeal.

Complex Concepts Simplified

Grandparent Visitation Act (GVA): A statute letting grandparents ask a court for visitation. When properly invoked by motion (§ 48-10-301), the court must evaluate 13 specific factors (§ 48-10-502) to decide whether visits serve the child’s best interests. If an abuse-and-neglect case is pending, the motion is filed in the circuit court (§ 48-10-402(d)); otherwise, it typically goes to family court.
Continued Association Doctrine: Separate from the GVA, West Virginia recognizes that children benefit from maintaining ties to people with whom they have formed strong bonds (such as foster or relative caregivers). Courts can order limited contact at the end of abuse-and-neglect proceedings if it is in the child’s best interests—even without a GVA motion.
Right of First Refusal: A provision giving a non-custodial adult the first opportunity to care for a child when the custodial parent is unavailable (e.g., working out of town). It preserves contact without restructuring primary custody.
Intervenor Status: Permission for a non-party to become a party in the case. Without it, a caregiver cannot challenge core rulings, access confidential records, or broadly appeal.
Abuse-of-Discretion Review: A deferential appellate standard. The Supreme Court will not second-guess the circuit court’s child-custody and visitation decisions unless they are clearly unreasonable or based on legal error.
Preservation of Error: Appellate courts require that issues be raised first in the lower court, with specific citations showing when and how. New issues or factual disputes not presented below are generally rejected on appeal.
Confidentiality of Abuse-and-Neglect Proceedings: Records and transcripts are confidential. Non-parties cannot access them absent court authorization, which protects the child’s privacy.

Unresolved or Subtle Points

Scope of “delineation”: The Court approved a baseline (one week per summer + right of first refusal) supplemented by discretionary time. Future cases will continue to shape how much structure suffices to prevent “hostage-taking” while respecting parental primacy.
Subsequent GVA petitions: Grandparents who did not file under the GVA during the abuse-and-neglect case may still petition post-dismissal in family court, where the § 48-10-502 factors would then apply. The record in In re B.N. did not test that scenario.

Conclusion

In re B.N. offers a practical clarification at the intersection of child-protection and family-law visitation. The Supreme Court reaffirmed that:

The GVA is the exclusive vehicle for grandparents who want formal visitation findings under the statute; absent a GVA motion, those factors do not apply.
At the dismissal of an abuse-and-neglect case, a circuit court may still order limited, delineated contact for a former caregiver under the child’s right to continued association, as a matter of best interests.
Visitation must be concretely defined enough to be enforceable and not left wholly to parental discretion, but it should not unduly infringe parental prerogatives after reunification.
Non-intervenor caregivers lack standing to challenge reunification, to obtain confidential transcripts, or to raise unpreserved issues on appeal.

For practitioners, the decision is a roadmap: if expansive, structured grandparent visitation is sought, file under the GVA and develop the statutory record; if the goal is to preserve an existing bond at reunification, courts can—and should—craft tailored, enforceable contact consistent with the child’s best interests and parental rights. The Court’s deferential stance underscores that thoughtfully reasoned, child-centric visitation plans will be sustained on appeal.