Kinship Caregivers, Foster-Care Time Limits, and Intervention Rights in West Virginia: Commentary on In re J.W.

I. Introduction

This commentary analyzes the Supreme Court of Appeals of West Virginia’s memorandum decision in In re J.W., No. 24-147 (May 6, 2025). The case arises from an abuse and neglect proceeding involving a young child, J.W., whose parents were adjudicated neglectful primarily due to substance abuse and inadequate housing. During the case, J.W. was physically placed with maternal relatives (the petitioners, C.K. and L.K.), who served as kinship caregivers.

The central legal question was whether these kinship caregivers were entitled to intervene in the abuse and neglect case as parties—either:

as a matter of right, based on West Virginia’s “15 of the most recent 22 months in foster care” statutory time limits and prior precedent granting foster parents intervention rights; or
under West Virginia Code § 49-4-601(h), which governs participation by various categories of caregivers and third parties in abuse and neglect proceedings.

The Court affirmed the circuit court’s denial of the petitioners’ renewed motion to intervene and upheld the decision to reunify J.W. with her parents. In doing so, it drew a sharp doctrinal line between:

foster parents, who may obtain intervention as of right when certain foster-care time limits are reached; and
kinship caregivers (relatives), whose rights are more limited and who are not covered by those “foster care” statutes for purposes of intervention as of right.

Justice Bunn dissented from the use of a short memorandum decision, stating that oral argument and a formal opinion were warranted, but she did not reach the merits in her brief dissent.

II. Summary of the Opinion

After the Department of Human Services (DHS) filed an abuse and neglect petition in August 2022, custody of J.W. was granted to DHS. DHS then placed the child with her maternal aunt and uncle (the petitioners) as a kinship placement. The parents were adjudicated neglectful after stipulating to the allegations, and they were granted improvement periods with services aimed at reunification.

The petitioners initially obtained permission to intervene in April 2023, but the circuit court later reversed that order in August 2023, finding intervention had been “incorrectly granted.” The court nonetheless allowed the petitioners’ counsel to monitor the case and indicated they could renew their motion to intervene at an appropriate time.

By late 2023, the parents were substantially compliant with their case plans, had progressed to unsupervised and overnight visitation, and had successfully parented a new baby who was not removed by DHS. DHS and the guardian ad litem (GAL) recommended reunification and dismissal of the case, with continued post-dispositional services.

In December 2023, the petitioners renewed their motion to intervene, arguing that statutes and case law applicable when a child has been in foster care for “15 of the most recent 22 months” entitled them to intervention as a matter of right and to a full evidentiary hearing. The circuit court allowed their counsel to argue at length but denied an evidentiary hearing and denied intervention. The court also rejected the petitioners’ argument that the “foster care” time-limit statutes applied, ruling that J.W. had not been in foster care but instead in a relative (kinship) placement.

On appeal, the Supreme Court:

Confirmed that the petitioners were kinship caregivers, not foster parents, under West Virginia Code § 49-1-206, and thus could not rely on the “15 of 22 months in foster care” statutes or on the foster-parent intervention rule in State ex rel. C.H. v. Faircloth to claim intervention as of right.
Held that the petitioners were not pre-petition custodians and therefore were not “custodial” parties under § 49-4-601(h) entitled to full participatory rights (testifying, presenting evidence, cross-examining witnesses) as a matter of right.
Concluded that the circuit court nonetheless provided the petitioners a “meaningful opportunity to be heard” by allowing their counsel to monitor proceedings and argue their motion, and that the court did not abuse its discretion in declining to hold a full evidentiary hearing or to expand their participatory role.
Limited the scope of the appeal: because the petitioners were denied intervenor status, they could not challenge the circuit court’s dispositional decision to reunify the child with the parents or the administration of improvement periods.

Accordingly, the Court affirmed the circuit court’s February 14, 2024, order denying intervention and approving reunification.

III. Detailed Analysis

A. Factual and Procedural Background

DHS filed an abuse and neglect petition in August 2022, alleging J.W.’s parents engaged in substance abuse and lacked adequate housing. The circuit court granted legal custody of J.W. to DHS, which then placed her physically with maternal relatives (the petitioners) as a kinship placement. The child remained in their home throughout the proceedings.

At the preliminary and adjudicatory stages:

The court ordered reunification services for the parents.
The parents stipulated to neglect, were adjudicated, and were granted post-adjudicatory improvement periods (November 2022).
They generally complied with services, with some lapses, and progressed to visitation, including overnight visits by early 2023.

In March 2023, concerned about the parents’ drug screens and alleged harassment by the father’s family, the petitioners moved to intervene. They argued the child had thrived in their care for eight months and that remaining with them permanently was in her best interests. The circuit court initially granted intervention in April 2023.

In August 2023, however, the court revisited that decision and reversed it, finding intervention had been “incorrectly granted.” Importantly, the court did not bar the petitioners completely; instead, it allowed their counsel to:

“Monitor” the proceedings; and
Renew the motion to intervene “at the appropriate time.”

No objection to this reversal or to the level of participation was preserved in the record. At about the same time, the parents were showing progress, and the court expanded their visits, directing DHS to increase overnight and unsupervised visitation “with the goal of reunification.”

In December 2023, after the child had lived with them for approximately sixteen months, the petitioners renewed their motion to intervene. They specifically invoked:

Statutes containing the “15 of the most recent 22 months in foster care” language (West Virginia Code §§ 49-4-605(a)(1) and 49-4-610(9)); and
This Court’s precedent in Faircloth and In re H.W., arguing that once those time frames are reached, caregivers are entitled to intervention as of right.

By that time, DHS reported that:

The parents remained compliant with services.
Overnight visits were going well.
The mother had given birth to another child who remained in her care because DHS had no safety concerns.

DHS recommended reunification and case dismissal, with 90 days of continued services. At a December 12, 2023, hearing:

DHS and the GAL formally moved to reunify and dismiss.
The GAL noted concern that the petitioners appeared “hostile to reunification” and opposed delaying reunification absent any valid protective concerns.
The circuit court allowed counsel for the petitioners to argue at length in support of renewed intervention but declined to hold an evidentiary hearing and denied the motion.
The court expressly found that the statutes invoked by the petitioners were inapplicable because “the child has not been in foster care” but was instead in a relative placement.
The case was dismissed, and legal custody returned to the parents, with a ninety-day period of continued services.

B. Issues on Appeal

On appeal, the kinship caregivers advanced two principal arguments:

Entitlement to intervention as a matter of right.
- They argued that, because the child had effectively been in “foster care” for 15 of the most recent 22 months, statutes and this Court’s precedent entitled them to intervene as of right, not merely permissively.
- They also suggested that as kinship caregivers they should be treated like foster parents under the logic of Faircloth and H.W..
Denial of a meaningful opportunity to be heard.
- They claimed the circuit court violated their rights under West Virginia Code § 49-4-601(h) by refusing to hold a full evidentiary hearing on their renewed motion and by declining to permit them to address their request for permanent placement.

They also attempted to challenge the circuit court’s decisions regarding the parents’ improvement periods and the failure to terminate parental rights, but the Supreme Court held those challenges were not properly before it given the petitioners’ non-party status.

C. Standard of Review

The Court applied the standard articulated in Syllabus Point 1 of In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022):

De novo review of whether the individual seeking intervention was afforded “a meaningful opportunity to be heard” under § 49-4-601(h); and
Abuse of discretion review of the circuit court’s decision regarding the “level and type of participation” allowed to foster parents, pre-adoptive parents, and relative caregivers.

D. Statutory and Case-Law Framework

1. Statutory provisions

Several key statutes frame the analysis:

West Virginia Code § 49-1-206 (definitions). It defines, among other things:
- “Foster family home” as a private residence used for the care of no more than six children who are unrelated, by blood, marriage, or adoption, to any adult in the household (emphasis added).
- “Foster parent” as a person with whom the department has placed a child and who has been certified to provide foster care.
- “Kinship placement” as the placement of a child with a relative or with “fictive kin” (non-relatives with a close, family-like relationship).
- “Kinship parent” as a person with whom DHS has placed a child to provide a kinship placement.
West Virginia Code § 49-4-605(a)(1). This is the statutory embodiment of the federal Adoption and Safe Families Act’s “15 of 22 months” rule. It requires DHS to file or join in a petition (or otherwise seek a ruling) to terminate parental rights when:
“a child has been in foster care for 15 of the most recent 22 months,”
subject to certain exceptions.
West Virginia Code § 49-4-610(9). This provision limits the length of improvement periods, directing that:
“no combination of any improvement periods or extensions thereto may cause a child to be in foster care more than fifteen months of the most recent twenty-two months,”
again with specified exceptions.
West Virginia Code § 49-4-601(h). This subsection governs participation rights in abuse and neglect proceedings. Paraphrased and as interpreted in prior case law:
- Persons with “custodial or other parental rights or responsibilities” have the right to a meaningful opportunity to be heard and also to testify, present evidence, and cross-examine witnesses.
- Foster parents, pre-adoptive parents, and relative caregivers have the right to a meaningful opportunity to be heard, but not automatically to full party-type trial rights.

2. Case-law precedents

The Court relied primarily on the following decisions:

State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
Faircloth is foundational for foster parents’ participation rights. Its key teachings, as quoted and applied in In re H.W., include:
- Baseline rule: Foster parents, pre-adoptive parents, and relative caregivers are entitled to a “meaningful opportunity to be heard,” but the circuit court retains discretion over the “level and type” of their participation.
- Important exception: Foster parents are entitled to intervention as a matter of right when the time limits in § 49-4-605(a)(1) and/or § 49-4-610(9) are implicated, i.e., when termination of parental rights is imminent or statutorily required because the child has been in foster care for 15 of the most recent 22 months.
In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022).
This case:
- Articulated the two-part standard of review for decisions on motions for permissive intervention under § 49-4-601(h).
- Clarified that foster parents who were not pre-petition custodians are not entitled to intervention as of right under § 49-4-601(h).
- Approved the practice of denying intervention while still allowing foster parents’ counsel to monitor and participate in a limited way in ongoing proceedings.
State ex rel. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018).
Beane explained the “two-tiered” framework under § 49-4-601(h):
- “Custodial” parties (with custodial or parental rights/responsibilities prior to the petition) get full participatory rights.
- Foster parents, pre-adoptive parents, and relative caregivers get a meaningful opportunity to be heard but do not automatically become full parties.
State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL 1788946 (W. Va. May 5, 2017) (memorandum decision).
Bloom described § 49-4-601(h) as creating a “two-tiered framework,” later elaborated in Beane.
In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996), modified on other grounds by Faircloth.
Jonathan G. defined “custodial” for § 49-4-601 purposes as referring to a person who became the child’s custodian before the abuse and neglect petition was filed (a “pre-petition custodian”).

E. The Court’s Legal Reasoning

1. Intervention as of right based on foster-care time limits

The petitioners’ primary argument was that the statutory 15-of-22-month foster care time limits had been reached, triggering both:

DHS’s obligation to pursue termination of parental rights; and
Under Faircloth and H.W., a right for foster parents to intervene as parties.

The Court rejected this argument at the threshold by clarifying the statutory definitions:

Under § 49-1-206, a foster family home is by definition a home where the children cared for are unrelated to all adult household members.
By contrast, a kinship placement must be with a relative (or fictive kin) of the child; a “kinship parent” is the person providing that relative placement.

Because C.K. and L.K. were the child’s maternal aunt and uncle, they were unambiguously “kinship parents,” not foster parents. Accordingly:

J.W. was not in “foster care” within the meaning of §§ 49-4-605(a)(1) and 49-4-610(9), but was in a “kinship placement.”
The statutory 15-of-22-month provisions, which speak expressly of a child’s time “in foster care,” do not apply to her situation for purposes of triggering foster-parent intervention as of right.
The special intervention right recognized in Syllabus Point 7 of Faircloth—granted to foster parents when those time limits are implicated—does not extend to kinship caregivers.

This is the decision’s most concrete doctrinal clarification: relative caregivers, even when they have provided long-term daily care to the child, are not “foster parents” for purposes of the 15-of-22-month rule and the associated intervention-as-of-right doctrine.

2. Intervention as of right under § 49-4-601(h)

The petitioners also argued that they should be treated as “custodial” parties—i.e., persons with “custodial or other parental rights or responsibilities”—and hence entitled to full participatory rights (including an evidentiary hearing) under § 49-4-601(h).

The Court rejected this argument based on the “two-tiered” framework and the definition of “custodial” developed in prior cases:

Under Jonathan G., “custodial” for § 49-4-601(h) purposes means a person who was the child’s custodian before the filing of the abuse and neglect petition.
The record made clear that the petitioners received physical custody only after DHS removed the child pursuant to the petition.
They were therefore not pre-petition custodians and did not fall into the “custodial” category that carries full party rights under § 49-4-601(h).

Instead, like foster parents and pre-adoptive parents, the petitioners fit the category of “relative caregivers” who:

are entitled to a meaningful opportunity to be heard, but
are subject to the circuit court’s discretion concerning the “level and type” of their participation, and
do not have as-of-right entitlement to present evidence, call or cross-examine witnesses, or otherwise act as full parties unless the court grants intervention.

Reaffirming In re H.W., the Court noted that because the petitioners did not have pre-petition “custodial rights or responsibilities,” they were not entitled to intervention as a matter of right under § 49-4-601(h).

3. Permissive intervention and “meaningful opportunity to be heard”

Once the Court determined the petitioners were not entitled to intervention as of right, the remaining issues concerned:

whether the circuit court nonetheless abused its discretion in denying permissive intervention; and
whether the petitioners were given the statutorily required “meaningful opportunity to be heard.”

The petitioners contended that:

The absence of a full evidentiary hearing on their renewed motion to intervene denied them a meaningful opportunity to be heard.
The court further violated their rights by refusing to let them litigate their request for permanent placement of the child.

The Court disagreed, emphasizing several points:

Counsel’s ability to monitor proceedings.
After rescinding the initial intervention order, the circuit court still permitted the petitioners’ counsel to “monitor the entirety of the remaining proceedings.” This mirrors what was approved in H.W., where the Supreme Court found no error in allowing foster parents’ counsel to monitor and participate in a limited way despite denial of formal intervenor status.
Opportunity to argue the motion.
At the December 12, 2023, hearing, the circuit court “permitted the petitioners’ counsel to argue in support of the motion to intervene at length.” The Court held that this was sufficient to satisfy the requirement that relative caregivers receive a meaningful opportunity to be heard.
Scope of “meaningful opportunity to be heard.”
The Court stressed that this phrase, as applied to foster parents and relative caregivers, does not include an automatic right to:
- present testimony;
- introduce exhibits;
- cross-examine witnesses; or
- control the issues litigated at disposition.
Those rights attach only to “custodial” parties and to other formal intervenors. Because the petitioners were neither pre-petition custodians nor granted intervention, they remained subject to discretionary limitations on their participation.

On this record, the Court concluded the circuit judge did not abuse his discretion in:

permitting argument rather than a full evidentiary hearing on the renewed intervention motion; and
proceeding with a reunification-focused disposition based on DHS and GAL recommendations and the parents’ compliance, without expanding the petitioners’ role.

4. Limits on the scope of appeal by non-intervenors

The petitioners also attempted to challenge:

the circuit court’s refusal to terminate parental rights; and
the granting and administration of the parents’ improvement periods.

The Supreme Court held these issues were not properly before it because:

The petitioners were never granted intervenor status.
As non-parties (albeit relative caregivers with a right to be heard), their participation below—and hence their appellate standing—was limited to the question whether the circuit court erred in denying their intervention and in the manner it afforded them a right to be heard.

Quoting In re H.W., the Court reiterated that foster parents (and by analogy, kinship caregivers) who are not intervenors cannot use their appeal to attack the dispositional decision itself, such as the failure to terminate parental rights. That reasoning applied equally to the petitioners’ attempt to contest improvement periods and reunification.

F. Complex Concepts Simplified

1. Abuse and neglect proceedings and “improvement periods”

In West Virginia:

An abuse and neglect proceeding is a civil action initiated by DHS alleging a child is abused or neglected and seeking court intervention to protect the child.
After a petition is filed, the court first determines whether the allegations are proven at an adjudicatory hearing. If so, the parents are adjudicated as abusive or neglectful.
The court may then grant an “improvement period”—a defined span of time (often three to six months, sometimes extended) during which parents receive services designed to correct the conditions of abuse or neglect (e.g., substance abuse treatment, parenting classes, housing assistance).
At the dispositional stage, the court decides whether to reunify the child with the parents, place the child in some form of state or third-party custody, or terminate parental rights, based on whether the parents have sufficiently corrected the problems and whether reunification is safe and in the child’s best interest.

2. Kinship placement vs. foster care

Although both look like “foster care” in ordinary language, West Virginia law draws a clear legal distinction:

Foster care (for purposes of §§ 49-4-605 and 49-4-610) means placement in a “foster family home” where the child is unrelated to the adults in that home. The caregivers are “foster parents,” certified by DHS or a child-placing agency.
Kinship placement occurs when a child is placed with a relative (or a close family-like friend, “fictive kin”). Those caregivers are “kinship parents.”

In In re J.W., the Court held that this statutory distinction is controlling for purposes of:

whether the 15-of-22-month “foster care” statutes apply; and
whether the Faircloth rule giving foster parents intervention as of right when those time limits are implicated extends to kinship caregivers (it does not).

3. Intervention as of right vs. permissive intervention

In litigation generally:

Intervention as of right means a non-party who meets certain criteria is automatically entitled to become a party; the court has very little discretion to deny it.
Permissive intervention means the court may, but need not, allow a non-party to join the case, usually based on whether the person’s interests will be affected and whether intervention will unduly complicate or delay the proceedings.

In West Virginia abuse and neglect cases:

Pre-petition custodians (such as non-offending parents, legal guardians, and certain caretakers who had custody before the petition) effectively have party status as of right under § 49-4-601(h).
Foster parents, pre-adoptive parents, and relative caregivers ordinarily have no automatic right to be parties; their request to intervene is subject to the circuit court’s discretion.
However, Faircloth created a narrow situation in which foster parents do have intervention as of right, namely when the 15-of-22-month provisions for “foster care” are implicated and termination of parental rights is imminent or statutorily required.
In re J.W. confirms that this foster-parents-only exception does not apply to kinship caregivers.

4. “Meaningful opportunity to be heard”

This phrase, repeated in § 49-4-601(h) and in case law like Faircloth, Beane, and H.W., means that caregivers such as foster parents or relatives:

must be notified of important hearings;
must be allowed to attend; and
must be allowed to express their views—typically through counsel or brief oral statements to the court—about the child’s best interests, the progress of the case, and placement.

However, it does not guarantee:

a full evidentiary hearing at their request;
the right to call witnesses or cross-examine DHS, GAL, or parents; or
the authority to dictate litigation strategy or outcomes.

The circuit court has discretion to decide whether, and to what extent, such caregivers can participate beyond that basic right to be heard. In re J.W. holds that allowing counsel to monitor proceedings and argue a motion can be sufficient to satisfy this standard.

G. Impact and Future Implications

1. Practical consequences for kinship caregivers

The decision sends a clear signal to kinship caregivers in West Virginia:

Even if a child has lived with them for well over 15 months, they may not be treated as foster parents for purposes of § 49-4-605 and § 49-4-610 or for the foster-parent intervention rule in Faircloth.
Their legal status in abuse and neglect proceedings is typically that of relative caregivers, with:
- a right to notice and to a meaningful opportunity to be heard; but
- no automatic right to full party status or an evidentiary hearing unless they were pre-petition custodians or the court grants intervention in its discretion.
They cannot, absent intervenor status, appeal the underlying dispositional decisions (e.g., reunification vs. termination); their appellate rights are limited to challenging how the court treated their attempted participation.

From a policy standpoint, this creates a tension: relatives who have provided daily care and stability for a lengthy period may feel their perspective is underweighted at the critical moment of deciding whether to reunify or move toward permanent placement with them. Nonetheless, the Court privileges statutory text and the primacy of parental rights, as long as the parents comply with case plans and safety can be assured.

2. Implications for parents and children

For parents and children, In re J.W. reinforces:

the importance of compliance with improvement periods—successful participation can lead to reunification even after extended out-of-home placement;
that kinship placement, while stabilizing for the child, does not automatically shift the legal center of gravity away from the parents; and
that relatives cannot, by virtue of time alone, force the case into a posture where termination is statutorily required due to “foster care” duration, at least as this Court has construed the statutory terms.

The Court’s analysis also suggests that where a child is placed with kin—as opposed to non-relative foster parents—DHS’s obligation to file for termination under § 49-4-605(a)(1) may not be triggered solely by the 15-of-22-month benchmark, because the statutory language is tied to “foster care.”

3. Guidance for DHS and circuit courts

For DHS and trial courts, the decision:

Clarifies that caregiver classification matters. Agencies and courts must be explicit whether a placement is categorized as foster care or kinship placement, as this affects:
- DHS’s statutory obligations regarding permanency timelines; and
- caregivers’ procedural rights, especially intervention rights.
Encourages courts to structure participation by relatives consistently with H.W.:
- allow counsel to monitor and attend hearings;
- permit argument on motions and placement issues; but
- retain discretion over whether to grant full intervention or additional evidentiary rights.
Reiterates that a properly documented record of parents’ compliance and DHS’s lack of safety concerns can support reunification even over relatives’ objections that the child would be “better off” remaining with them.

4. Potential areas of future litigation or legislative action

Justice Bunn’s separate writing—criticizing only the use of a memorandum decision and expressing that a full opinion was warranted—signals that the issues in In re J.W. may be:

recurring;
legally significant; and
insufficiently resolved by past precedents alone.

Possible areas of future attention include:

Whether the Legislature wishes to extend the 15-of-22-month framework or similar permanency protections to children in kinship placements. Currently, as construed by this Court, those provisions are tied to “foster care” as strictly defined.
Whether kinship caregivers should have enhanced participatory rights when the child has been in their home for extended periods, perhaps by amending § 49-4-601(h) to specifically address long-term kinship placements.
Clarification of the precedential weight of memorandum decisions in this area, should conflicting approaches emerge in future cases.

IV. Justice Bunn’s Dissent

Justice C. Haley Bunn’s dissent is brief but notable. She does not directly criticize the majority’s legal reasoning on kinship vs. foster status or intervention rights. Instead, she states:

She would have set the case for oral argument.
She believes the issues raised warranted a formal opinion, not a Rule 21 memorandum decision.

This indicates that at least one member of the Court views:

the interplay between kinship placements, foster-care time limits, and intervention rights as sufficiently important or unsettled to merit a more robust treatment; and/or
the consequences for kinship caregivers and children as significant enough that the Court should provide more detailed guidance to the bench and bar.

Although the dissent does not comment on the merits, it underscores that this area of law is evolving and that further clarification—judicial or legislative—may be appropriate.

V. Conclusion

In re J.W. fits within an established line of West Virginia cases that carefully calibrate the procedural rights of non-parent caregivers in abuse and neglect proceedings. The decision:

Reaffirms that kinship caregivers are not “foster parents” under the statutory definitions, and thus cannot invoke the 15-of-22-month foster-care time limits or Faircloth to claim intervention as of right.
Clarifies that relatives who obtained custody after the abuse and neglect petition are not “custodial parties” under § 49-4-601(h) and therefore are not entitled to full party-like procedural rights as a matter of right.
Confirms that a “meaningful opportunity to be heard” for kinship caregivers can be satisfied without granting them evidentiary hearings or formal intervenor status, so long as they can attend proceedings and present their position through counsel or statements to the court.
Limits the scope of appeals by such caregivers to issues concerning their participatory rights, not the merits of dispositional decisions like reunification or termination.

In practice, the decision strengthens the procedural distinction between:

parents and pre-petition custodians, who have full participatory rights;
foster parents, who may gain intervention as of right when the foster-care time limits are triggered; and
kinship caregivers, who are entitled to be heard but whose participation otherwise remains largely within the trial court’s discretion.

While formally a memorandum decision, In re J.W. provides important clarification for practitioners and policymakers on how West Virginia’s child welfare statutes operate when children are placed with relatives. It underscores the primacy of statutory text and parental reunification where possible, while leaving open broader policy questions about the role and rights of long-term kinship caregivers in the state’s abuse and neglect system.