Kinship Placement vs. Foster Care: Defining Intervention Rights Under West Virginia Law

1. Introduction

In the Supreme Court of Appeals of West Virginia’s decision in In re J.W. (No. 24-147, May 6, 2025), the Court clarified the scope of intervention rights for relatives providing kinship placements in child abuse and neglect proceedings. Petitioners C.K. and L.K., the child’s maternal aunt and uncle, sought to intervene and secure permanent custody of their nephew, J.W., arguing they were entitled to intervention as a matter of right under West Virginia Code §§ 49-4-601(h), 49-4-605(a)(1), and 49-4-610(9). The circuit court denied the petitioners’ renewed motion to intervene and for permanent custody, and the Supreme Court affirmed.

Key issues:

Whether kinship caregivers count as “foster parents” for purposes of statutory time-limit intervention rights;
Whether petitioners, as post-removal relative caregivers, were “pre-petition custodians” entitled to full participatory rights under WV Code § 49-4-601(h);
Whether the circuit court provided a “meaningful opportunity to be heard” under the statutory framework.

Parties:

Petitioners: C.K. and L.K., maternal aunt and uncle (kinship caregivers).
Respondents: J.W.’s parents and the West Virginia Department of Human Services (DHS).
Guardian ad litem: Jennifer R. Victor.

2. Summary of the Judgment

The Supreme Court reviewed the circuit court’s February 14, 2024 order denying the petitioners’ renewed motion to intervene and permanent custody. The petitioners relied heavily on prior holdings requiring intervention rights when a child spends 15 out of 22 months in foster care (§ 49-4-605(a)(1) and § 49-4-610(9)). The Court held:

The time-limit statutes apply only to children in foster care, defined by statute as placements where the children are unrelated to any adult in the home. Kinship placements—placements with relatives—are expressly excluded.
Petitioners were not “pre-petition custodians” under § 49-4-601(h) since their custody began only after DHS removal, so they were not entitled to intervention as of right.
The circuit court afforded the petitioners a “meaningful opportunity to be heard” by allowing counsel to monitor all proceedings and argue the motion at length.

The Supreme Court, applying de novo review of statutory interpretation and abuse-of-discretion review of participatory scope, affirmed the denial of intervenor status and permanent custody.

3. Analysis

3.1 Precedents Cited

The Court’s decision hinged on prior West Virginia case law:

State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018): Held that foster parents are entitled to intervention as of right when time-limit statutes (15 of 22 months) are implicated. Faircloth defined “foster family home” and “foster parent” to require non-relation to the child.
In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022): Established a two-part standard for reviewing permissive intervention under § 49-4-601(h): de novo for meaningful opportunity to be heard, and abuse of discretion for level/type of participation. Confirmed that only pre-petition custodians get full participatory rights.
State ex rel. R.H. v. Bloom, 2017 WL 1788946 (W. Va. May 5, 2017): Clarified that custodial rights for § 49-4-601(h) require pre-petition custody.
In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996): Defined “custodial” in the abuse and neglect context.

3.2 Legal Reasoning

The Court’s statutory analysis proceeded in two main steps:

Statutory Definitions: West Virginia Code § 49-1-206 distinguishes:
- “Foster family home” and “foster parent”: children unrelated to adults in the household, certified by DHS.
- “Kinship placement” and “kinship parent”: placement with a relative or fictive kin.
Because J.W. was with his aunt and uncle, the placement was kinship, not foster care. The time-limit statutes trigger only in foster care contexts.
Intervention Rights under § 49-4-601(h): This provision grants:
- Full rights (testify, present/cross-examine) only to parties with custodial rights or responsibilities prior to the filing of the abuse and neglect petition.
- Relative caregivers and others get only a “meaningful opportunity to be heard” and are subject to the circuit court’s discretion on participation scope.
The petitioners became custodians only after DHS removal. Thus, they were not pre-petition custodians and had no right to full intervention.

The Court concluded the circuit court neither mis-applied the time-limit statutes nor deprived petitioners of due process—they were permitted counsel monitoring, argument, and discretion over participation.

3.3 Impact

This decision clarifies critical boundaries in West Virginia’s child welfare statutes:

It cements that kinship placements are legally distinct from foster care for time-limit intervention triggers.
It restrains the extension of statutory intervention rights to post-removal relatives, requiring pre-petition custody for full rights.
It underscores the circuit courts’ discretion to tailor participation under § 49-4-601(h), provided a “meaningful opportunity” to be heard.

Future cases will reference this memorandum decision to assess whether relatives or non-custodial caregivers can demand statutory intervention or must rely on permissive, discretionary processes.

4. Complex Concepts Simplified

To aid understanding, key terms are clarified below:

Foster Care vs. Kinship Placement: Foster care involves unrelated certified caregivers; kinship placement involves relatives or close family friends. Time-limit statutes (e.g., 15 of 22 months) apply only to foster care.
Intervention as a Matter of Right: A legal requirement forcing the court to allow a party to participate fully—testify, present evidence—when statutory conditions are met.
Permissive Intervention: A discretionary allowance by the court for parties to participate in limited ways—e.g., counsel monitoring, argument—without full rights of parties.
Pre-Petition Custodian: A person who had custody of the child before the abuse and neglect petition was filed. Only such individuals receive full intervention rights under § 49-4-601(h).

5. Conclusion

In re J.W. establishes a firm boundary between foster care and kinship placement for statutory intervention rights in West Virginia abuse and neglect proceedings. The Supreme Court reaffirmed that:

Kinship caregivers do not trigger foster-care time-limit mandates found in § 49-4-605(a)(1) and § 49-4-610(9).
Post-removal relatives are not “pre-petition custodians” and thus lack a matter-of-right claim under § 49-4-601(h).
Circuit courts retain broad discretion to grant relatives a meaningful opportunity to be heard without full party status.

This memorandum decision provides clear guidance to practitioners, courts, and caregivers on the limits of intervention rights and preserves the statutory design balancing parental reunification goals, relative caregiving, and procedural fairness.