Overcoming Statutory Grandparent Placement Preference: Continuity of Care and Child Welfare in In re A.H. & G.H.

Introduction

In the Supreme Court of Appeals of West Virginia’s memorandum decision In re A.H. and G.H. (No. 23-669, May 14, 2025), the Court considered an appeal by maternal grandparents seeking permanent placement of their two grandchildren after the termination of the biological parents’ rights. The underlying abuse and neglect petition arose from substance abuse, domestic violence, and unsafe housing conditions in the parents’ home. After numerous temporary placements and behavioral disruptions, the Fayette County Circuit Court placed the children—A.H. (age 6) and G.H. (age 8)—with non-relative foster parents J.S. and D.S., who sought to adopt them. The maternal grandparents, K.K. and S.H., challenged that decision under West Virginia’s grandparent preference statute. The Supreme Court affirmed, holding that the children’s best interests and established bonds with their foster parents outweighed the statutory placement preference for grandparents.

Summary of the Judgment

The Supreme Court of Appeals affirmed the Fayette County Circuit Court’s permanency order. Key holdings include:

The grandparent placement preference under West Virginia Code § 49-4-114 is a rebuttable preference, not an absolute right.
Because the children had experienced multiple foster placements and developed a strong, therapeutic bond with J.S. and D.S., removing them would be traumatic and against their best interests.
The maternal grandparents’ delayed intervention, lack of significant early contact, and questions about their ability to protect the children from potentially unsafe adults (including K.K.’s adult son) weighed against placement with them.
DHS’s failure to file a diligent-search summary under W. Va. Code § 49-4-601a was found harmless where the grandparents were aware of the proceedings and fully participated in the permanency hearing.
Accordingly, the Court held that adoption by J.S. and D.S. best served the children’s welfare and should be the permanency plan.

Analysis

Precedents Cited

Napoleon S. v. Walker (217 W. Va. 254; 617 S.E.2d 801): Held that grandparent placement preference is presumptive but must yield to the child’s best interests; provided the standard of review (abuse of discretion for placement decisions).
In re K.E. (240 W. Va. 220; 809 S.E.2d 531): Reiterated that the grandparent preference is “just that—a preference,” and must be balanced with the paramount goal of child welfare.
In re A.C. (No. 21-0470, 2022 WL 1440656): Found DHS’s failure to comply with the diligent-search requirement harmless when a grandparent was aware of the case, intervened, and was ineligible at removal due to housing issues.
In re A.A. (246 W. Va. 596; 874 S.E.2d 708): Held that a grandparent’s strategic “wait and see” approach to intervention justifies denial of relief; delays in requesting placement cannot shift blame to DHS or the court.
In re G.G. (249 W. Va. 496; 896 S.E.2d 662): Emphasized that bureaucratic delays cannot override decisions made on the circumstances at the time of permanency hearings.
In re Katie S. (198 W. Va. 79; 479 S.E.2d 589): Recognized that the “primary goal in cases involving abuse and neglect . . . must be the health and welfare of the children.”

Legal Reasoning

The Court’s reasoning rested on a multi-factor best‐interests analysis:

Statutory Preferences vs. Child Welfare: While W. Va. Code §§ 49-4-601a and 49-4-114 establish preferences for relative placement and grandparent adoption, those preferences yield where evidence shows another placement better serves the child’s health, safety, and stability.
Bond and Continuity: A seventeen-page circuit court order documented the children’s marked behavioral improvements, their strong emotional bond with J.S. and D.S., and the risks of additional trauma from another move.
Timely Intervention and Eligibility: K.K. and S.H. sought placement only after parental rights were terminating. They were not “able” under § 49-4-601a at removal because of K.K.’s adult son living in their home, and they delayed asking for custody despite owning a West Virginia residence.
Protection from Risk: The court questioned K.K.’s willingness to recognize and guard against threats to the children—she declined to believe her son’s violent conviction or her daughter’s substance abuse despite clear evidence.
Harmless Statutory Noncompliance: DHS’s omission of a diligent-search summary was harmless where grandparents were on notice, retained counsel, and fully participated in the permanency hearing.

Impact

In re A.H. and G.H. clarifies that:

The statutory preference for grandparent adoption under W. Va. Code § 49-4-114 can be overcome when non‐relative caregivers have established strong bonds and continuity of care.
Courts will not excuse delayed grandparent intervention or penalize foster parents who act promptly to form stable placements.
Technical lapses in DHS compliance with relative-search statutes will be deemed harmless if relatives are aware of proceedings and able to participate fully.
Decisions will focus on the child’s present circumstances and welfare, not on hypothetical or retrospective placement claims.

Complex Concepts Simplified

Diligent Search Summary (§ 49-4-601a): A report listing all relatives and “fictive kin” (close family friends) that a child welfare agency must compile and notify at the start of a removal case.
Grandparent Preference (§ 49-4-114): A rule that relatives who are grandparents get first opportunity to adopt a child after parental rights end, unless the court finds it not in the child’s best interests.
In-Camera Testimony: Private questioning of the children by the judge, out of public view, to determine their wishes without undue influence.
Permanency Hearing: A court proceeding after parental rights termination to decide a long‐term placement plan (e.g., adoption) for the children.
Harmless Error Doctrine: A legal principle that some procedural mistakes do not require reversal if they had no real impact on the outcome.

Conclusion

In In re A.H. and G.H., the Supreme Court of Appeals of West Virginia reaffirmed that children’s welfare—measured by stability, emotional bonds, and safety—is the lodestar of placement decisions. Even a robust statutory preference for grandparent adoption can be set aside where non‐relatives have nurtured the children’s well‐being, and grandparents have delayed or shown an inability to protect. This decision reinforces timely intervention by relatives, diligence in child welfare searches, and the principle that procedural or bureaucratic missteps cannot eclipse a child’s need for continuity and security.