In re M.N.: Mandatory Enforcement of Kinship Placement Preferences and Exclusion of Removed DHS Substantiations

Introduction

In In re M.N., 2025 WL ___ (W. Va. June 6, 2025), the Supreme Court of Appeals of West Virginia addressed three central issues arising in an abuse and neglect proceeding: the Department of Human Services’ (“DHS”) statutory duty to locate and notify kin for a removed child; the propriety of maintaining the child in a non-relative foster placement once a qualified grandparent emerges; and the interplay between the “grandparent preference” for adoptive placement (W. Va. Code § 49-4-114(a)(3)) and the child’s best interests. The petitioner, T.C., M.N.’s maternal grandmother, appealed the circuit court’s denial of her motion for placement of her infant granddaughter. By a 4–1 vote, the Court affirmed, holding that although DHS failed to comply with its initial‐placement duties under § 49-4-601a, any error was harmless under the facts, and that the circuit court did not abuse its discretion in finding that placement with the grandmother was not in M.N.’s best interests. Justice Trump dissented, urging mandatory enforcement of DHS’s kinship‐search obligations and prohibiting consideration of maltreatment findings that DHS had formally removed.

Summary of the Judgment

Shortly after M.N.’s birth in April 2023, DHS filed an abuse and neglect petition based on her mother’s incarceration and prior termination of parental rights. M.N. was placed with nonrelative foster parents. DHS did not notify T.C., her only known relative, until June 2023. By then, T.C. had two pre-existing DHS “maltreatment substantiations” from 2004–2005 and a 2006 felony drug conviction—initially disqualifying her from kinship placement. DHS subsequently removed the old substantiations via administrative grievance and granted T.C. a variance for her felony, approving her home study in September 2023.

T.C. intervened and moved for placement, but DHS and the guardian ad litem opposed. At disposition in January 2024 the circuit court: (1) acknowledged its failure to enforce kinship‐search requirements under § 49-4-601a but deemed any error harmless because T.C. was not then eligible; (2) declined to reorder M.N.’s placement pending resolution; and (3) applied the grandparent preference under § 49-4-114(a)(3) but found that M.N.’s best interests required continuing in foster care, citing T.C.’s past CPS history, the mother’s testimony about childhood abuse by T.C., T.C.’s difficulty in parenting her older children, and M.N.’s bond with foster parents. On appeal, the Supreme Court affirmed, applying an abuse‐of‐discretion standard to dispositional determinations and clear‐error review to facts.

Analysis

Precedents Cited

• Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005)
  • Syllibus Pt. 4: Grandparents are “presumptively in the best interests” and preference can be overcome only if record shows otherwise.
  • Syl. Pt. 5: Home‐study evaluation must demonstrate grandparents are suitable, implicitly requiring a best‐interests analysis.
• In re Hunter H., 227 W. Va. 699, 715 S.E.2d 397 (2011) – Reinforces that best‐interests of the child is controlling even where statutory preferences exist.
• In re K.E., 240 W. Va. 220, 809 S.E.2d 531 (2018) – Emphasizes that grandparent preference is not absolute.
• State ex rel. Waldron v. Scott, 222 W. Va. 122, 663 S.E.2d 576 (2008) – Harmless‐error doctrine applies to most errors, including statutory ones.
• State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948) – The child’s welfare is the “polar star” in custody matters.

Legal Reasoning

The Court’s majority opinion unfolds in three parts:

1. Initial Placement Preference (§ 49-4-601a).
   • Statute mandates DHS to “diligently search” for relatives and fictive kin within days of removal and file two lists with the court (within 7 and 45 days).
   • DHS admitted noncompliance—no lists, no notification to T.C. Majority holds mandatory but any error was harmless because T.C. was ineligible until late summer and the court eventually appointed her counsel and let her intervene.
2. Interim Placement.
   • No authority required the court to move M.N. from an established foster home to T.C.’s newly approved home while proceedings continued. Unsupported by any statute or case law, petitioner’s second assignment of error was waived.
3. Grandparent Placement Preference (§ 49-4-114(a)(3)).
   • Preference is presumptive but can be overcome by best‐interests showing. Abuse‐of‐discretion review.
   • Circuit court properly balanced factors—T.C.’s criminal record (albeit decades old), prior CPS interactions, mother’s testimony of abuse, T.C.’s parenting history, and M.N.’s strong bond with foster family—and found preference overcome. Record support was plausible.

Impact

In re M.N. underscores three lessons for future abuse and neglect proceedings:

• Mandatory Kin Search Enforcement. DHS’s duties under § 49-4-601a are non‐discretionary, and circuit courts should compel compliance. While this Court deemed the error harmless here, similar noncompliance in other contexts may lead to reversal.
• Limits on Interim Placement Relief. A qualified kinship or grandparent placement does not automatically displace a foster‐care arrangement mid‐proceeding absent statutory or procedural grounds.
• Best Interests Supersede Preference. The grandparent preference remains strong but is not absolute. Courts retain broad discretion, with a clear‐error standard for facts and abuse‐of‐discretion for dispositions. Practitioners should rigorously develop evidence on bonding, home environment, and parental history when kinship placement is contested.

Complex Concepts Simplified

• Grandparent Placement Preference (§ 49-4-114(a)(3)). A child’s grandparent is first in line for adoption once parental rights are terminated—unless the child’s best interests show otherwise.
• Initial Placement Preference (§ 49-4-601a). Upon removal, DHS must quickly search for any relatives or “fictive kin” and notify them of the child’s need, filing progress lists with the court.
• Abuse of Discretion vs. Clear Error. Dispositional decisions (where the child lives) are overturned only if the court misused its discretion. Factual findings (what happened) are reversed only if they are clearly wrong.
• Maltreatment Substantiations & Administrative Grievance (§ 49-4-601b). DHS substantiations are findings by a single worker that a person abused or neglected a child; since 2020, individuals must get notice and can challenge these through an administrative grievance process.
• Harmless Error. Even if DHS or the court erred, the outcome stands if the error did not prejudice the party’s substantial rights.

Conclusion

In re M.N. reaffirms West Virginia’s dual statutory preferences—initial kinship placement under § 49-4-601a and grandparent preference under § 49-4-114(a)(3)—while emphasizing that the child’s best interests govern. DHS must comply strictly with kinship‐search mandates and file the required notices with the court. Courts must weigh statutory preferences against a holistic best‐interests analysis and may not rely on discredited or administratively reversed maltreatment findings. Going forward, practitioners should ensure early and thorough kinship searches, timely challenges to any DHS substantiations, and robust evidentiary records on the child’s emotional bonds and safety needs to safeguard both statutory rights and the welfare of West Virginia’s most vulnerable children.