No Yoder for Foster Parents: The Primacy of the Child’s Best Interests in Religious Foster Placements – Commentary on Justice Trump’s Concurrence in In re M.B.

Introduction

The concurring opinion by Justice Trump in In re M.B., No. 24‑176 (Supreme Court of Appeals of West Virginia, Nov. 13, 2025), addresses a sensitive intersection of child welfare law, constitutional religious liberty, and the legal status of foster parents. The case involves a foster child, M.B., placed with Amish foster parents who also care for his three biological sisters. The circuit court approved a permanency plan that would keep M.B. in this foster placement, finding that it served his best interests. However, the circuit court’s written order also invoked the United States Supreme Court’s decision in Wisconsin v. Yoder, 406 U.S. 205 (1972), to suggest that the Amish foster parents enjoyed special constitutional “entitlements” regarding the child’s education and that the court could not “discriminate” against their religious lifestyle.

Justice Trump joins the Court’s judgment affirming the circuit court’s placement decision but writes separately for two main reasons:

He would limit the Court’s review strictly to the narrow question actually before the circuit court: whether continued placement with the foster parents as a permanency plan served M.B.’s best interests.
He would explicitly hold that the circuit court misapplied Yoder, and that Yoder does not extend parental due process rights to foster parents, whose rights are contractual and subordinate to the child’s best interests.

The concurrence thus crystallizes a critical principle: in abuse and neglect and permanency proceedings involving foster care, the “best interests of the child” standard cannot be subordinated to the religious interests of foster parents, and Yoder provides no constitutional shield for foster parents comparable to that enjoyed by biological or adoptive parents.

Summary of the Concurrence

Justice Trump agrees that the circuit court’s decision should be affirmed because the record amply supports the finding that remaining with the foster parents is in M.B.’s best interests. The circuit court found, among other things, that:

The foster parents provide a “stable loving home.”
M.B. is placed with his biological siblings.
He would “receive a basic education and … learn a trade.”

The court’s oral findings echoed these themes, emphasizing that the foster parents:

“love this child,” have accepted him and his sisters, and want to give them “a home and a family … [that] could last until eternity,” and that this is “the only family that he has known for his entire life.”

Yet the circuit court’s written order also relied on Wisconsin v. Yoder to conclude that:

Amish children are exempt from high school attendance because of their religion.
The court could not “discriminate” against the foster family based on its religion and lifestyle.
The U.S. Supreme Court has given Amish communities “certain entitlements to protection.”

Justice Trump deems this reliance on Yoder legally erroneous. He explains that Yoder involved a unique combination of the parents’:

First Amendment free exercise rights; and
Fourteenth Amendment substantive due process rights as parents to direct the upbringing and education of their own children.

Foster parents, he stresses, do not share these parental due process rights in relation to foster children. They have free exercise rights like any other individual, but their relationship to the child is contractual, and legal custody remains with the Department of Human Services (DHS). Therefore:

Yoder does not apply to foster parents.
The circuit court should have objectively considered whether any aspect of the Amish foster placement (including its educational model) was contrary to M.B.’s best interests.
The error was harmless in this case because the circuit court independently conducted a thorough best‑interests analysis that supported continued placement.

He further cautions that extending Yoder to foster parents, as the DHS and the State (as amicus) urged, would threaten:

The primacy of the “best interests of the child” standard in abuse and neglect proceedings; and
The statutory purposes of West Virginia’s foster care system, which emphasize temporary care, family reunification, and—when reunification is impossible—permanent placement consistent with the child’s best interests.

Justice Trump concludes with a clear directive: neither lower courts nor DHS “should ever subordinate the best interests of a foster child to the interests of foster parents—based on the foster parents’ ‘free exercise rights’ or any other factor—in an abuse and neglect proceeding.”

Factual and Procedural Background

1. The Child and the Foster Placement

M.B. is a foster child in the legal custody of the West Virginia Department of Human Services. He has been placed with an Amish foster family that also cares for his three biological sisters. The record indicates:

This is the only family M.B. has ever known.
The foster home is stable, loving, and well‑maintained.
The siblings are closely bonded and thriving in the home.

A Special Commissioner’s report—referenced in Justice Trump’s concurrence—described the home as “comfortable, pleasantly furnished, and spotless,” observed that the children were “well‑behaved, beautifully dressed, clean, and obviously very attached to their parents,” and concluded that M.B. would grow up in a “loving and spiritual home with his three biological sisters,” learning “home and work skills” and how to “support himself and a family” as part of a close spiritual community.

2. The Circuit Court’s Decision

The circuit court’s central legal task was to determine whether continued placement with the foster parents, as a permanency plan for M.B., served his best interests. On that question, it:

Found the foster home was “stable” and “loving.”
Emphasized the importance of keeping M.B. with his biological siblings.
Noted that he would receive a “basic education” and learn a trade in the Amish context.

On the record, the circuit court clearly identified “the best interest of the child” as “the most important thing to consider” and used that framework to reach its conclusion.

However, in its written order, the court went further and invoked Wisconsin v. Yoder as if it conferred special constitutional protection on Amish educational practices in the foster‑care setting. It stated that the U.S. Supreme Court had exempted Amish children from attending high school for religious reasons, rejected the notion that the child should be removed from the home, and asserted that it could not “discriminate” against the foster family due to its religion and lifestyle, because the Supreme Court had given Amish communities “certain entitlements to protection.”

3. Review by the Supreme Court of Appeals

On appeal, the Supreme Court of Appeals affirmed the circuit court’s decision to keep M.B. with his foster family. Justice Trump joined the judgment but wrote separately to:

Insist that the Court’s review should stay confined to the narrow issue of M.B.’s best interests in his current placement.
Clarify that Yoder does not apply to foster parents and that the circuit court’s contrary assumption was erroneous (though harmless in this case).

Precedents and Authorities Cited

1. West Virginia Best‑Interests and Permanency Cases

a. Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005)

Justice Trump quotes Napoleon S. for the proposition that:

“A fundamental mandate, recognized consistently by this Court, is that the ultimate determination of child placement must be premised upon an analysis of the best interests of the child.”

This case is used to anchor the concurrence in West Virginia’s long‑standing doctrine that child placement decisions—in abuse and neglect, foster care, and permanency contexts—must be driven by the child’s best interests, not by adult preferences, institutional convenience, or other collateral interests.

b. State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998)

He also quotes Michael M. for the requirement that:

“a circuit court must endeavor to secure for a child who has been removed from his or her family a permanent placement with the level of custody, care, commitment, nurturing and discipline that is consistent with the child's best interests.”

This case frames the appropriate end‑goal of abuse and neglect litigation: not simply any permanency, but permanency that meets the child’s overall developmental and emotional needs. In In re M.B., these needs are satisfied by (i) the stability and affection provided by the Amish foster parents and (ii) the presence of the child’s siblings.

c. State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018)

Cited in connection with the statutory hierarchy of permanency options, C.H. v. Faircloth reiterates that:

Reunification with the natural family is preferred when “reasonably possible.”
Foster parents play a “vital role” in supporting, rather than subverting, reunification efforts.

Justice Trump invokes this case, along with Pennsylvania’s In re G.C., 735 A.2d 1226 (Pa. 1999), to emphasize that foster care is in principle temporary and designed to support the State’s reunification aims, not to convert foster parents into constitutional equivalents of biological parents.

2. Federal Constitutional Cases on Parenting and Religion

a. Wisconsin v. Yoder, 406 U.S. 205 (1972)

Yoder is the centerpiece of the concurrence’s constitutional analysis. In Yoder, Amish parents challenged Wisconsin’s compulsory school attendance law, which required schooling until age sixteen, as conflicting with their religiously based way of life. The Supreme Court held:

That the parents’ free exercise right to practice their religion, combined with their parental due process right to direct the upbringing and education of their own children, justified an exemption from the law.
That the State’s interest in compulsory education, while important, did not justify overriding this hybrid right in the specific factual setting of the Amish community.

Justice Trump stresses two crucial aspects of Yoder:

The decision was explicitly premised on the combination of rights—free exercise + parental substantive due process. Without that combination, the Court would not have applied strict scrutiny to the neutral, generally applicable school attendance law.
The case involved parents and their own children. The constitutional protections were grounded in the family relationship recognized and protected by the Fourteenth Amendment.

Because foster parents do not possess parental due process rights over foster children (those rights remain with the legal parents, subject to termination, and with the State as custodian), Justice Trump concludes: Yoder “has no relevance to this case.”

b. Employment Division v. Smith, 494 U.S. 872 (1990)

Smith is cited for its discussion of “hybrid situations,” where the Supreme Court has applied heightened scrutiny to free exercise claims when combined with other constitutional rights. The Court in Smith observed that Yoder and similar cases involved free exercise in conjunction with such rights, like parental rights to direct children’s education.

Justice Trump relies on Smith to reinforce that Yoder is a narrow, hybrid‑rights precedent and should not be read as a freestanding religious exemption doctrine for neutral, generally applicable laws—let alone for contractual relationships such as foster care.

c. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Troxel v. Granville, 530 U.S. 57 (2000)

These decisions anchor the fundamental constitutional right of parents to direct the upbringing of their children:

Pierce recognized parents’ right to choose private or religious schools instead of public schooling.
Troxel reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

Justice Trump cites these cases (through Yoder) to underscore that such fundamental rights belong to parents—not to foster parents, whose authority is derivative of and limited by the State’s legal custody and statutory framework.

3. West Virginia Statutory Framework

a. Foster Children in Legal Custody of DHS – W. Va. Code § 49‑2‑106 (2024)

This provision confirms that foster children remain in the legal custody of the Department of Human Services while in foster care. Foster parents provide day‑to‑day care but do not hold legal custody. This division of authority undercuts any claim that foster parents could exercise constitutional parental rights (as in Yoder) over foster children.

b. Foster Parents Bill of Rights – W. Va. Code § 49‑2‑127 (2020)

Justice Trump cites this statute, which grants foster parents:

“[t]he right to maintain the parent’s or parents’ own family values and beliefs so long as the values and beliefs of the child are not infringed upon.”

This language makes clear that:

Foster parents may practice and maintain their own religious and moral beliefs in their own household.
But they may not impose those beliefs in a way that infringes the foster child’s own values and beliefs.

Far from elevating foster parents to the status of constitutional parents, this statute explicitly limits their authority, especially in the realm of religious and moral training.

b. Foster Care Agreement – W. Va. Code § 49‑2‑127a (2020)

This provision regulates the contractual agreement between DHS and foster parents. Foster parents’ rights and duties are framed as emerging from this contractual relationship, not from inherent constitutional parenthood. Justice Trump uses this to emphasize that foster parents are state partners in caregiving, not legal parents in the constitutional sense.

c. Parents’ Bill of Rights – W. Va. Code § 49‑12‑4(2) (2025)

By contrast, the Parents’ Bill of Rights provides that a parent has:

the right “to direct the upbringing and the moral or religious training of his or her minor child.”

The juxtaposition of this statute with the Foster Parents Bill of Rights is central to the concurrence’s reasoning:

Biological and adoptive parents have a statutory (and constitutional) right to direct their own children’s upbringing and religious training.
Foster parents do not have that right; they may only maintain their own beliefs so long as they do not infringe the child’s beliefs and best interests.

This statutory distinction tracks—and reinforces—the constitutional distinction drawn in Yoder, Pierce, and Troxel.

d. Permanency and Reunification – W. Va. Code § 49‑4‑604 (2020)

Section 49‑4‑604:

Sets out a hierarchy of dispositional options, emphasizing reunification with the family when possible.
Requires courts to assess DHS efforts toward reunification before terminating parental rights.

Justice Trump cites this provision to situate foster care within a broader legislative goal of family preservation and reunification where feasible. Foster placements may later become permanent (e.g., via adoption), but only if that permanency serves the child’s best interests.

e. Overarching Purpose of the Foster Care System – W. Va. Code § 49‑1‑105 (2015)

This statute states that the primary purpose of West Virginia’s child welfare system is to:

“serve the mental and physical welfare” and other best interests of children in DHS custody.

Justice Trump uses this provision to underscore that every decision within the foster care system must ultimately be oriented toward the child’s welfare, not the interests or preferences of foster parents or the agency.

The Court’s Legal Reasoning

1. Limiting the Scope of Review to the Best‑Interests Question

Justice Trump opens by stating that he would have “limited the scope of this Court’s review” to the narrow issue before the circuit court:

whether continued placement with the foster parents, as a permanency plan for M.B., was consistent with his best interests.

This reflects a traditional appellate restraint: the Supreme Court of Appeals should confine itself to the issues actually adjudicated below and necessary to the disposition of the case. He signals discomfort with any broader pronouncements in the majority opinion (which we do not see in the provided text) that may go beyond this narrow question.

2. The Misapplication of Yoder and the Concept of “Hybrid Rights”

Justice Trump’s core doctrinal move is to detach Yoder from the foster‑care context. He explains:

Yoder is a “hybrid rights” case: the Supreme Court applied strict scrutiny because the parents’ free exercise claim was joined with their fundamental parental right to direct their children’s upbringing.
Absent this hybrid, the neutral and generally applicable compulsory school law would not normally trigger strict scrutiny under Smith.
Foster parents lack parental due process rights over foster children; their authority is defined and limited by state law and by contract with DHS.

Therefore, the concurrence reasons, Yoder cannot be stretched to give foster parents quasi‑constitutional control over educational decisions for foster children. To do so would be to impute parental due process rights to individuals who, in law, are not parents.

Justice Trump criticizes both DHS and the State (as amicus) for failing to engage with this hybrid‑rights structure of Yoder and for effectively arguing that foster parents should inherit the same constitutional deference as Amish parents in Yoder. He warns that such an expansive reading is doctrinally unsound and would have serious policy consequences.

3. The Legal Status of Foster Parents: Contractual Caregivers, Not Constitutional Parents

The concurrence draws a sharp legal distinction between three roles:

Biological or adoptive parents – holders of constitutional parental rights and statutory “Parents’ Bill of Rights,” including the right to direct the child’s religious and moral upbringing.
The State (DHS) – legal custodian of foster children, with authority and obligations defined by statute and court orders.
Foster parents – individuals who enter into a contractual relationship with DHS to provide care, subject to statutory limitations and the overarching best‑interests standard.

For foster parents:

They retain their own First Amendment free exercise rights (they can practice their own religion, worship as they choose, etc.).
But they do not obtain fundamental parental rights over foster children, particularly the right “to direct the religious upbringing” of those children.
The Foster Parents Bill of Rights expressly subordinates their values and beliefs to the child’s: they may maintain their own beliefs so long as they do not infringe upon the child’s.

This means that, as a doctrinal matter, foster parents’ religious practice is respected as individuals, but it does not override the State’s responsibility to examine whether specific religious practices—or their educational consequences—are contrary to the child’s best interests.

4. The Primacy of the Best‑Interests Standard

Having stripped away Yoder’s applicability to foster parents, Justice Trump re‑centers the analysis where West Virginia law has always placed it: on the best interests of the child.

He warns that extending Yoder to foster parents would:

“Threaten the primacy of the ‘best interests of the child’ standard in abuse and neglect proceedings.”
Undermine the objectives of the foster care system, which is designed to provide temporary care while DHS works toward family reunification, and, failing that, toward permanency in the child’s best interests.

Against this backdrop, he restates the governing principle:

“the ultimate determination of child placement must be premised upon an analysis of the best interests of the child, not the interests, religious or otherwise, of foster parents wishing to adopt a child.”

Importantly, this does not mean that the foster parents’ religion is irrelevant. It means:

The court may consider any aspect of the placement—religious practices, educational model, community life—insofar as it bears on the child’s welfare and development.
But the foster parents’ religious interests are not entitled to determinative or veto‑like weight against the child’s best interests.

5. Harmless Error: Why the Misapplication of Yoder Did Not Affect the Outcome

Despite his strong doctrinal criticism, Justice Trump would call the circuit court’s error “harmless.” Under the harmless‑error doctrine, an appellate court need not reverse a judgment if the error did not affect the outcome or substantial rights of the parties.

Here, he notes that:

The circuit court explicitly recognized that “the most important thing to consider [was] the best interest of the child.”
It then “undertook a careful analysis of M.B.’s best interests” independent of its Yoder discussion.
There was “ample evidence” supporting the conclusion that remaining in the foster home was in M.B.’s best interests.

Because the decision can be solidly affirmed on best‑interests grounds alone, the misreading of Yoder did not ultimately prejudice M.B.’s interests in this case.

Nevertheless, Justice Trump believes the Supreme Court should “squarely” address the error because DHS itself asked the Court to extend Yoder to foster parents. For the sake of future cases and policy clarity, he wants it made “absolutely clear” that the best interests of foster children can never be subordinated to foster parents’ religious claims in abuse and neglect proceedings.

Impact and Future Implications

1. Clarifying the Limits of Religious Liberty in the Foster‑Care Context

This concurrence provides powerful guidance—if not binding precedent—on a recurring and nationally salient issue: how far do religious rights extend in the foster‑care system?

Its main implications include:

No constitutional “Yoder‑type” right for foster parents. Foster parents cannot invoke Yoder to demand that foster children be educated or raised in strict accordance with their religious practices where that might conflict with the child’s best interests as determined by the State.
Free exercise rights remain, but are limited by the contract and the child’s welfare. Foster parents are free to practice their religion personally, but their role as foster caregivers is conditioned on adherence to statutory and contractual obligations, including respect for the foster child’s best interests and individual rights.
Courts must not treat religious identity as a “shield” against scrutiny. The fact that a foster family is religious—Amish or otherwise—does not exempt the placement from full, objective best‑interests review of all aspects of the child’s upbringing, including education.

2. Guidance for DHS and Child Welfare Agencies

For DHS and similar agencies, the concurrence carries a cautionary message:

Agencies should avoid conflating the constitutional rights of biological/adoptive parents with the contractual rights of foster parents.
In policy formation and litigation, they should not treat Yoder as a broad authorization for religious exemptions within foster care.
Agency decisions should be demonstrably grounded in the child’s best interests, with religious considerations weighed only insofar as they affect those interests.

The critique of DHS and the State’s briefs—faulting them for failing to acknowledge Yoder’s hybrid‑rights structure—signals that the Court expects a higher level of doctrinal precision from government advocates, especially when seeking expansions of constitutional protections.

3. Implications for Religious Foster Parents and Providers

For religious foster parents and faith‑based foster agencies, the concurrence sends a mixed but ultimately clarifying message:

Their religious identity will be respected, and courts will not “discriminate” against them as such.
But their religious practices, educational models, or community norms may still be scrutinized for consistency with the child’s best interests.
They should not expect constitutional protection equivalent to that of a biological or adoptive parent for decisions affecting foster children’s education or religious upbringing.

In practical terms, religious foster parents may need to:

Demonstrate that their educational and disciplinary practices are adequate to meet statutory standards for the child’s development.
Accommodate, within reason, the beliefs or religious background of the foster child, especially where that history is different from their own.

4. Reinforcing the Distinction Between Foster Care and Adoption

Another implicit impact of the concurrence is to sharpen the line between foster care and adoption:

In foster care, the State retains legal custody, and foster parents’ rights are limited and contractual.
Upon adoption, adoptive parents become legal parents with full constitutional parental rights, including the right to direct their children’s religious upbringing (subject to general child‑protection laws).

This reinforces the notion that constitutional parental rights are tied to the permanent, legal parent‑child relationship—not to temporary caregiving status.

5. Doctrinal Significance as a Concurrence

Because these views are articulated in a concurring opinion, their formal binding effect is more limited than a majority holding. However:

The concurrence’s careful integration of statutes and U.S. Supreme Court precedents makes it highly persuasive for lower courts facing similar issues.
Given that the ultimate disposition (affirming the placement) is unanimous, trial courts and DHS are likely to treat the concurrence’s reasoning as an authoritative gloss on the boundaries of religious liberty in foster care.

Complex Concepts Simplified

1. Best Interests of the Child

The “best interests of the child” standard is the central principle in child welfare law. Simplified:

Courts must decide what arrangement (placement, visitation, services) most effectively promotes the child’s overall well‑being—physical, emotional, educational, and moral.
Adult interests (parents, foster parents, agencies) are secondary and relevant only insofar as they affect the child’s welfare.
This standard is context‑specific and requires courts to consider the child’s history, bonds, safety, and developmental needs.

2. Free Exercise Rights

Under the First Amendment, everyone has the right to practice their religion freely. For foster parents, this means:

They may attend religious services, pray, and live according to their faith.
However, when they enter into a foster‑care agreement, they voluntarily accept obligations and limits based on the child’s welfare.
The State may impose neutral, generally applicable rules on foster care (e.g., educational standards, non‑discrimination policies), even if these incidentally burden religious practice, so long as they do not target religion.

3. Parental Due Process Rights

The Fourteenth Amendment protects the fundamental liberty interest of parents to:

Direct the care, custody, and control of their children.
Decide matters like schooling, religion, and medical care, subject to child‑protection laws.

These rights belong to:

Biological parents (unless legally terminated).
Adoptive parents once the adoption is finalized.

They do not belong to foster parents in relation to foster children, because foster parents are not legal parents; their authority arises from statute and contract, not from constitutional status.

4. Hybrid Rights and Yoder

“Hybrid rights” refers to cases where the Supreme Court has given heightened protection because a free exercise claim is coupled with another fundamental right (like parental rights). Yoder is the classic example:

Amish parents claimed both (1) free exercise of religion and (2) parental right to control their children’s education.
The Court found that combination strong enough to override the State’s school attendance law in that specific context.

Because foster parents do not hold parental rights over foster children, their free exercise claims do not form a Yoder‑style hybrid. Thus, they are not entitled to the same level of constitutional protection in imposing religiously motivated educational decisions on foster children.

5. Harmless Error

Appellate courts distinguish between:

Reversible error – a mistake that likely affected the outcome; the judgment must be reversed or remanded.
Harmless error – a mistake that did not affect the outcome; the judgment can stand despite the error.

Justice Trump considers the circuit court’s invocation of Yoder an error, but harmless, because:

The court still grounded its decision mainly on M.B.’s best interests.
The evidence overwhelmingly supported the placement.

6. Legal Custody vs. Physical Custody

In foster care:

DHS holds legal custody: the legal authority to make major decisions about the child’s care, services, and placement.
Foster parents have physical custody: they provide day‑to‑day care and supervision in their home.

Because legal custody remains with DHS, foster parents cannot claim full parental authority or constitutional parental rights over the child.

Conclusion

Justice Trump’s concurrence in In re M.B. performs two crucial functions in West Virginia child welfare jurisprudence:

It reaffirms, with statutory and precedential support, that the best interests of the child remain the decisive standard in foster‑care and permanency decisions, even where foster parents have sincere and deeply held religious beliefs.
It decisively rejects an expansive reading of Wisconsin v. Yoder that would extend “hybrid” parental‑free‑exercise rights to foster parents, who lack constitutional parental status and whose authority is defined by statute and contract.

By insisting that the child’s welfare cannot be subordinated to foster parents’ religious interests, the concurrence safeguards both the integrity of the foster‑care system and the constitutional framework that distinguishes between parents and foster caregivers. It offers clear guidance to lower courts, DHS, and practitioners: religious identity does not immunize foster placements from best‑interests scrutiny, and no party—agency or foster parent—should treat Yoder as a general warrant to reshape foster children’s upbringing in ways that may not serve their long‑term welfare.

Even as a concurrence, this opinion is likely to shape how West Virginia approaches religious foster placements and constitutional arguments in child welfare cases for years to come, firmly anchoring the law in the principle that, above all, the child’s best interests must prevail.