Permanent vs. Temporary Foster Placement and Appellate Review in West Virginia: Commentary on In re M.B. (Ewing, J., concurring)

I. Introduction

This commentary analyzes Justice Ewing’s concurring opinion in In re M.B., No. 24‑176 (Supreme Court of Appeals of West Virginia, Nov. 14, 2025). Although the Court unanimously affirmed the circuit court’s denial of the guardian ad litem’s (“GAL”) motion to remove the infant M.B. from his current foster home, Justice Ewing writes separately to clarify two critical points:

• the proper characterization of the challenged order as a permanent placement determination rather than a mere temporary placement decision; and
• the way the best interests of the child standard operates at the permanency stage, especially for a very young child deeply bonded to long‑term foster parents who have adopted his siblings.

The case arises out of an abuse and neglect proceeding in which M.B. was removed from his biological parents at birth in May 2023 and placed immediately with foster parents who had already been caring for and later adopted his three biological siblings (placed in 2020). After a breastfeeding incident and broader concerns about the suitability of the foster home as M.B.’s long‑term placement, the GAL moved to remove M.B. from the foster parents. A special commissioner later recommended moving M.B. to a different adoptive home and separating him from his siblings for purposes of permanent placement. The circuit court declined to do so, and the GAL appealed.

Justice Ewing agrees with the affirmance but emphasizes that this appeal is properly understood as reviewing a decision about permanent placement—and that the outcome is anchored in the specific facts: M.B.’s very young age, his strong bond with the foster parents, and their adoption of his three siblings.

II. Summary of the Concurring Opinion

Justice Ewing’s concurrence makes several key points:

1. The challenged order functioned as a permanency decision.
   Although the GAL’s motion to remove M.B. from the foster home was filed early and framed as a request for immediate removal, the way the circuit court proceeded—ordering DHS to assess permanency, appointing a special commissioner, receiving permanency reports, and ultimately denying removal after the termination of parental rights—meant the February 29, 2024 order effectively determined M.B.’s permanent out‑of‑home placement.
2. Temporary vs. permanent placement matters for appellate jurisdiction.
   Justice Ewing questions whether orders merely changing (or refusing to change) temporary foster care placements are final and appealable. By viewing this order as a permanent placement decision, he situates it within the line of cases in which appeals of permanency determinations have been entertained.
3. The best interests analysis at permanency must be holistic and forward‑looking.
   The concurrence stresses that, after termination of parental rights, the court’s focus necessarily shifts to permanency and must consider:
   • the child’s age and developmental needs,
   • continuity and stability of relationships and environment,
   • bonds with current caregivers,
   • sibling relationships, and
   • the long‑term security of the proposed permanent home.
   On these facts, permanency with the current foster parents clearly serves M.B.’s best interests.
4. Bonds and sibling placements receive substantial weight.
   Relying on prior cases such as In re G.G. and In re K.E., the concurrence emphasizes the critical importance of continuity of care and the child’s strong bond with foster parents, especially in the first three years of life, as well as the fact that the foster parents have already adopted M.B.’s three biological siblings.
5. Concerns about the foster home’s lifestyle are not dispositive.
   The special commissioner expressed concern that placing a non‑Amish child in an Amish adoptive home “might be unfairly restrictive.” Justice Ewing’s analysis implicitly rejects that as a sufficient reason to override established bonds and stability; the question is whether the home provides a safe, stable, and secure permanent environment, not whether it mirrors the lifestyle of “the vast majority of his peers.”
6. Procedural timing drives the legal lens.
   Even though the GAL raised concerns early, the law requires that permanency decisions be based on the circumstances at the time permanency is decided, not when concerns were first expressed. As the case advanced to termination of parental rights and beyond twelve months of foster care, the inquiry naturally became one of permanency.

III. Legal and Procedural Framework

A. Temporary vs. Permanent Placement

Justice Ewing begins by distinguishing temporary placement from permanent placement, drawing on statutory and rule‑based definitions and procedural structure.

1. Temporary placement

• Initial removal and temporary custody are governed in part by:
  • W. Va. Code § 49‑4‑601a (2020) – when a child is removed from the home, placement preference is given to relatives or fictive kin.
  • W. Va. Code § 49‑4‑602(a)–(b) (2015) – governs temporary placement with the Department of Human Services (“DHS”), or with a “fit and proper person” or agency for up to sixty days.
  • W. Va. R. P. Child Abuse & Neglect Proc. 22 – allows the court, upon believing the child is in imminent danger, to transfer custody as described in § 49‑4‑602 or Rule 16(c).
• These rules address short‑term safety measures during ongoing abuse and neglect proceedings—before final disposition or permanency.

2. Permanent placement

“Permanent placement” is defined in W. Va. R. P. Child Abuse & Neglect Proc. 3(n), which Justice Ewing quotes. A child reaches permanent placement when:

1. The petition has been dismissed and the child has been returned home or to a relative with no DHS supervision; or
2. The child is in the permanent custody of a non‑abusive parent; or
3. A permanent out‑of‑home placement has been achieved after final disposition—i.e., when the child has been:
   • adopted,
   • placed in a legal guardianship,
   • placed in another planned permanent living arrangement (APPLA), or
   • emancipated.

Justice Ewing’s core move is to categorize the order under review as effectively resolving M.B.’s permanent out‑of‑home placement: the circuit court signaled that M.B. would remain with the current foster parents through adoption, and it directed DHS to staff the case for adoption.

B. Permanency Timelines and Obligations

The concurrence situates the case within statutory timelines that push cases toward permanency:

• W. Va. Code § 49‑4‑110(c) (2015): For each child remaining in foster care, a permanency hearing must occur no later than twelve months after the child is considered to have entered foster care.
• W. Va. Code § 49‑4‑608(b) (2023): If after 12 months DHS has not:
  • placed the child in an adoptive home,
  • returned the child to a natural parent,
  • placed the child in legal guardianship, or
  • permanently placed the child with a fit and willing relative,
  the court must hold a permanency hearing.
• W. Va. R. P. Child Abuse & Neglect Proc. 43: Permanent placement should be achieved within 12 months of the final disposition order, absent “extraordinary reasons” stated on the record.

Here, parental rights were terminated in January 2024, and M.B. had already been in the same foster home since birth in May 2023. By the time of the February 29, 2024 order, the case had plainly moved into the permanency phase, so the question was no longer simply “Is this temporary placement acceptable?” but “What permanent placement best serves M.B.’s long‑term interests?”

C. Circuit Court’s Exclusive Jurisdiction Over Permanency

Justice Ewing invokes W. Va. R. P. Child Abuse & Neglect Proc. 36(e), which provides that a circuit court has exclusive jurisdiction to determine the permanent placement of a child. He further notes:

• W. Va. Code § 49‑4‑606(b): If a child is removed from or relinquished from an adoptive home or other permanent placement after the case has been dismissed, the matter must be reported back to the circuit court of origin, which must hold a permanency hearing within 60 days.
• W. Va. R. P. Child Abuse & Neglect Proc. 45(b): Implements the same continuing jurisdiction.

These provisions underscore that even after adoption, the circuit court remains the locus for permanency decisions, highlighting the significance and finality of such determinations.

D. Best Interests Standard

The circuit court described its analysis as using the “best interest” standard set forth in W. Va. Code § 48‑9‑102 (2022), which governs custody decisions under Chapter 48, Article 9 (domestic relations). Justice Ewing notes that, by its plain language, § 48‑9‑102 does not govern abuse and neglect proceedings under W. Va. Code §§ 49‑4‑601 to ‑610.

Nevertheless, the general “best interests of the child” principle remains the guiding “polar star” for permanency determinations in abuse and neglect cases, drawing on longstanding case law rather than Chapter 48’s domestic relations provisions.

IV. Precedents Cited and Their Influence

A. In re M.M., 251 W. Va. 74, 909 S.E.2d 109 (2024)

In In re M.M., the Supreme Court of Appeals affirmed an order permanently placing a child with a maternal aunt rather than long‑term foster parents. The case is cited by Justice Ewing for the type of order that is properly appealable: an order determining permanent placement.

By contrast, orders altering, granting, or denying temporary placements have not been treated as final appealable orders. Thus, In re M.M. supports his classification of the order in M.B. as a permanency decision and locates the present appeal within an established line of appellate review of permanent placement orders.

B. In re G.G., 249 W. Va. 496, 896 S.E.2d 662 (2023)

In re G.G. plays a dual role in the concurrence:

1. Timing of permanency decisions. Justice Ewing quotes:

   “The decision regarding G.G.’s permanent placement had to be made based upon the circumstances existing at that time, not when the petitioners contend that they first sought custody of G.G.”

   He uses this to emphasize that even if the GAL first raised concerns early in the case, the relevant question at permanency is the child’s situation and needs at the time permanency is decided.
2. Importance of early bonds and continuity. G.G. itself relied on:

   “continuity of relationships, surroundings and environmental influence” during a child’s first three years of life is vitally important …

   It also recognized that disruptions in early caregiver relationships can severely impact a child’s growth and development. Justice Ewing invokes this reasoning to support keeping M.B.—who was less than one year old at the time of the circuit court’s decision—with the foster parents he had known since birth.
3. Best interests as the “polar star.” The concurrence cites G.G. for Syllabus Point 9:

   “[I]n a contest involving the custody of an infant where there is no biological parent involved, the best interests of the child are the polar star by which the discretion of the court will be guided.”

   That quote, in turn, originates from State ex rel. Treadway v. McCoy.

C. In re R.S., 244 W. Va. 564, 855 S.E.2d 355 (2021)

In R.S., the Court reversed and remanded a circuit court order that had chosen one set of foster parents over another for permanent placement. Justice Ewing references R.S.—like M.M. and G.G.—as another example where the Court reviewed a permanent placement determination on appeal. Collectively, these cases strengthen the view that what is appealable are final permanency decisions, not interim placement tweaks.

D. State ex rel. D.B. v. Bedell, 246 W. Va. 570, 874 S.E.2d 682 (2022)

D.B. v. Bedell is critical to Justice Ewing’s jurisdictional distinction. There, non‑intervenor foster parents sought to challenge an order awarding temporary custody of a child to his maternal grandparents. They did so successfully via a petition for extraordinary relief (e.g., prohibition or mandamus), rather than through a direct appeal.

The concurrence cites Bedell to illustrate that:

• temporary placement decisions are typically not final appealable orders; but
• they may be reviewed via extraordinary writs when the circumstances warrant.

This reinforces his skepticism about treating a pure temporary placement ruling as appealable as of right—and explains why characterizing the order in M.B. as a permanency decision matters.

E. State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993)

Treadway is the source of the oft‑quoted “polar star” principle:

“In a contest involving the custody of an infant where there is no biological parent involved, the best interests of the child are the polar star by which the discretion of the court will be guided.”

By invoking this language (through G.G.), the concurrence:

• confirms that when biological parents are not in the picture (as after termination of parental rights), the court’s discretion is governed primarily and almost exclusively by the child’s best interests; and
• frames the foster‑placement vs. alternative adoptive placement dispute as a pure best‑interests contest, free from competing parental rights claims.

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

Napoleon S. is cited for the general declaration:

“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 reinforces the centrality of the best‑interests standard to permanency determinations and helps justify why lifestyle differences or potential “restrictiveness” (e.g., Amish culture) cannot trump a home that clearly satisfies safety, stability, and long‑term developmental needs.

G. In re K.E., 240 W. Va. 220, 809 S.E.2d 531 (2018)

K.E. is quoted indirectly through G.G. for the concept that:

“continuity of relationships, surroundings and environmental influence during a child’s first three years of life is vitally important.”

The concurrence deploys this principle to underscore the damage that could be done by separating M.B., an infant with an established attachment, from his foster parents and also from his three siblings with whom he is growing up.

V. Court’s Legal Reasoning in the Concurrence

A. Re‑Characterizing the Order as a Permanency Decision

Justice Ewing’s first major move is analytical: he recasts the order under review as one determining permanent placement, not merely declining to change a temporary foster placement.

He points to several procedural markers:

• The GAL’s motion raised both:
  • an immediate concern (the foster mother breastfeeding M.B.); and
  • a long‑term concern (appropriateness of the foster home as M.B.’s permanent placement).
• The circuit court’s initial response was bifurcated:
  • it ordered the foster mother to cease breastfeeding—resolving the short‑term, immediate concern; and
  • it directed DHS to report whether the foster parents were being considered for permanent placement—squarely engaging the permanency question.
• A special commissioner was appointed specifically “to inquire as to the appropriateness of the foster family as a placement for M.B.”
• DHS submitted a memorandum in November 2023 opining that “the current foster placement is a permanent placement for” M.B.;
• The special commissioner then recommended removal and a new “prospective adoptive placement,” with separation from siblings “for purposes of his permanent placement.”
• The circuit court terminated parental rights in January 2024, a key threshold that generally shifts the case into permanency mode.
• At the January 31, 2024 hearing, the foster father expressed a desire to adopt M.B. and his siblings, and arguments centered on the fairness and restrictiveness of an Amish adoptive home—clearly forward‑looking, permanency‑oriented concerns.
• The February 29, 2024 order:
  • denied the GAL’s motion to remove M.B. from the foster parents after considering his best interests, and
  • directed DHS to staff the case for adoption, effectively treating the foster home as M.B.’s permanent adoptive placement.

Taken together, these steps show that the circuit court was not merely tolerating a temporary placement; it was endorsing a permanent placement plan with the foster parents, which is the decision now on appeal.

B. Jurisdiction and Appealability Concerns

Justice Ewing then raises a jurisdictional concern: if this were merely an order granting or denying a temporary placement change, would it be appealable as of right?

• He contrasts this case with M.M., G.G., and R.S., where the Court reviewed permanent placement determinations.
• He cites State ex rel. D.B. v. Bedell, where foster parents challenged a temporary custody order not by direct appeal but by extraordinary relief—suggesting that temporary placement decisions are typically not final appealable orders.

By clarifying that the M.B. order is about permanency, he avoids squarely deciding whether purely temporary placement orders may be appealed, but he clearly signals skepticism. The concurrence thereby:

• preserves the traditional distinction between final orders (permanent placement) and interlocutory or administrative decisions (temporary placement); and
• suggests that parties dissatisfied with temporary placement rulings should generally consider extraordinary writs rather than direct appeals.

C. The Best Interests Analysis at the Permanency Stage

Having framed the order as a permanency decision, Justice Ewing applies a best interests analysis appropriate to that stage. Key factors include:

1. Age of the child.
   M.B. was under one year old when the circuit court ruled on the GAL’s motion. Research and prior case law (G.G., K.E.) indicate that:
   • the first three years of life are uniquely critical for attachment and development; and
   • disrupting established caregiving relationships in this window can have “severe” developmental consequences.
2. Continuity and bond with foster parents.
   M.B. was placed with the foster parents at birth and had remained there throughout his life. The Court has already recognized in G.G. that “significant bonds are formed between a child and his or her caregivers at this young age,” and that disruption can be particularly harmful. The concurrence leans heavily on this to justify maintaining the current placement as the permanent one.
3. Siblings and family structure.
   The foster parents have adopted M.B.’s three biological siblings, who have been in the home since 2020. Removing M.B. to a separate adoptive placement, as recommended by the special commissioner, would:
   • separate him from all siblings “for purposes of his permanent placement,”
   • fracture the only family unit he has ever known, and
   • undermine the system’s strong policy preference for maintaining sibling groups when possible.
   Justice Ewing also notes W. Va. Code § 49‑4‑111(d), which gives priority to foster/adoptive parents who foster and/or adopt the child’s siblings, especially after 18 months of foster care.
4. Stability and permanency obligations.
   With parental rights terminated and M.B. already in care for over a year, the statutory and rule‑based mandates to achieve permanence promptly weigh against disrupting the placement. The goal, as summarized in Rule 2, is a “safe, stable, secure permanent home” for the child.
5. Foster home’s lifestyle (Amish context).
   The special commissioner argued that placing a non‑Amish child in an Amish home might be “unfairly restrictive.” The concurrence does not ignore this concern but makes clear that:
   • differences in cultural or lifestyle norms, standing alone, do not outweigh the importance of stability, bonded relationships, and sibling unity; and
   • the best‑interests inquiry must be holistic, looking at long‑term safety, stability, and development, not whether the child’s life will mirror that of “the vast majority of his peers.”

Ultimately, Justice Ewing concludes that “permanency with the foster parents clearly serves M.B.’s best interests even though M.B.’s future with them will not mirror the lives of the vast majority of his peers.”

D. Time, Progression of the Case, and the Shift to Permanency

The concurrence places particular emphasis on the temporal progression of abuse and neglect cases:

• At the beginning, the focus is on immediate safety and temporary placement.
• As time passes, and particularly after termination of parental rights and more than twelve months in care, the inquiry “necessarily becomes one of permanency.”

Citing In re G.G., Justice Ewing stresses that permanency decisions must be based on current circumstances, not on what might have been ideal earlier:

“Time passes; cases progress to disposition and (in some circumstances) termination of parental rights; and the inquiry necessarily becomes one of permanency.”

Thus, even if the GAL’s early concerns about permanency were legitimate, the law demands that, at the point of permanency, the child’s current bonds, environment, and developmental stage be decisive.

E. A Note on the GAL’s Role

Justice Ewing disagrees with the GAL’s ultimate position that M.B. should be removed from the foster home as a permanent placement, but he pointedly “commends her willingness to advocate on M.B.’s behalf.” This underscores:

• that GALs are expected to raise difficult or unpopular arguments where they believe the child’s interests demand it; and
• that vigorous advocacy is not inconsistent with judicial disagreement on the outcome.

VI. Impact and Implications

A. Clarification of Appellate Pathways

The concurrence’s distinction between temporary and permanent placement orders has significant procedural implications:

• Permanent placement decisions (e.g., adoption plan with specified caregivers, final disposition of where the child will be raised) are final orders subject to direct appeal.
• Temporary placement decisions (e.g., interim moves, short‑term changes in foster homes) are likely not directly appealable and, if challenged, should primarily be addressed by:
  • motions in the circuit court; and/or
  • extraordinary writs to the Supreme Court (as in Bedell), where the high bar for extraordinary relief must be met.

While the concurrence does not bind the Court on jurisdictional doctrine, it offers persuasive guidance that practitioners will likely heed in framing future challenges to placement decisions.

B. Strong Reinforcement of Permanency, Stability, and Sibling Bonds

The opinion reinforces a trajectory in West Virginia jurisprudence that:

• gives substantial weight to continuity of care and early attachment, especially for children under three;
• strongly favors maintaining sibling groups together when possible, especially when siblings are already adopted or long‑term placed in the same home; and
• views disruptions in such settings with skepticism, particularly where proposed alternative placements offer no clear superiority beyond subjective or cultural preferences.

For DHS, GALs, and foster parents, this signals that once a very young child has formed significant bonds in a stable foster home—particularly one where siblings are present and adopted—the burden to justify removal to a different adoptive home as being in the child’s best interests will be high.

C. Guidance for GALs and Special Commissioners

The case also provides practical guidance:

• GALs can and should raise both immediate safety/appropriateness concerns and long‑term permanency concerns, even early in the case. But they must recognize that, as the case progresses and attachments deepen, the calculus will favor continuity unless serious deficiencies emerge in the current placement.
• Special commissioners or evaluators must anchor their recommendations in a child‑focused best‑interests analysis. Concerns about cultural “restrictiveness” must be tied concretely to the child’s welfare and cannot displace the weight of strong bonds and stability without compelling evidence.

D. Cultural and Lifestyle Differences in Permanency Decisions

Implicitly, the concurrence sends a message that:

• Courts should be wary of treating religious or cultural lifestyles (such as Amish communities) as disqualifying or disfavored absent evidence of actual harm or inadequacy.
• Differences from “mainstream” lifestyles do not, by themselves, override the best‑interests factors of safety, stability, and secure attachment.

This perspective may shape future cases in which foster or adoptive parents’ cultural, religious, or lifestyle choices are raised as arguments against placement.

VII. Complex Concepts Simplified

A. Guardian ad Litem (GAL)

A guardian ad litem is a lawyer appointed by the court to represent the best interests of the child in abuse and neglect proceedings. The GAL does not represent the child as a traditional client whose wishes are determinative but rather investigates, makes recommendations, and advocates for what the GAL believes best serves the child’s welfare.

B. Temporary vs. Permanent Placement

• Temporary placement:
  • Short‑term arrangement after removal from parents;
  • Goals: immediate safety, initial stabilization;
  • Flexible; can be changed relatively quickly as the case develops;
  • Governed by statutes like § 49‑4‑602 and related rules.
• Permanent placement:
  • Long‑term, final decision where the child will grow up;
  • Examples: adoption, permanent guardianship, return to parent without DHS supervision;
  • Subject to strict timelines (e.g., 12‑month permanency hearings) and “best interests” analysis;
  • Considered a final order, generally appealable.

C. Best Interests of the Child

The best interests standard is a flexible, multi‑factor test courts use to decide what outcome will most benefit the child. While specific factors can vary, they often include:

• the child’s safety and physical well‑being;
• emotional and psychological stability;
• attachments and bonds with caregivers;
• relationships with siblings and extended family;
• the child’s developmental needs and special needs, if any;
• the child’s preferences (when age‑appropriate); and
• the ability of the caregivers to meet these needs long‑term.

In abuse and neglect cases after parental rights are terminated, best interests become the “polar star” guiding permanent placement decisions.

D. APPLA (Another Planned Permanent Living Arrangement)

Another Planned Permanent Living Arrangement (APPLA) is one of the recognized forms of permanent out‑of‑home placement under Rule 3(n). It typically applies to older youth for whom adoption, reunification, or guardianship are not viable, and involves a stable, long‑term living situation (such as long‑term foster care in a stable family or residential setting) with continuing support and planning.

E. Extraordinary Relief vs. Direct Appeal

When a party disagrees with a court’s ruling, there are generally two routes to the Supreme Court:

• Direct appeal: Used to challenge final orders (such as permanent placement decisions). It is a matter of right when filed correctly.
• Extraordinary relief (e.g., writs of prohibition or mandamus): Used to challenge interlocutory orders (like many temporary placement decisions) that are not final but allegedly cause severe or irreparable harm or exceed the lower court’s authority. These writs are discretionary and granted only in exceptional circumstances.

Bedell illustrates the latter route for challenging a temporary placement order, whereas M.B. fits into the direct appeal model because it concerns permanent placement.

VIII. Conclusion

Justice Ewing’s concurring opinion in In re M.B. provides important clarifications and reinforces key themes in West Virginia child welfare jurisprudence.

• It draws a clear conceptual and procedural line between temporary and permanent foster placements and locates appellate review firmly in the realm of permanency determinations, with temporary placement disputes more suited to extraordinary relief.
• It underscores that once a case reaches the permanency stage—particularly after termination of parental rights—the inquiry must focus on whether a proposed placement will provide a safe, stable, and secure permanent home, with special attention to the child’s age, attachments, and sibling relationships.
• It reaffirms that the best interests of the child are the “polar star” in contests among non‑parent caregivers and that lifestyle or cultural differences are not, by themselves, sufficient to outweigh strong, healthy bonds and sibling unity.
• It signals a high threshold for dislodging very young children from long‑term foster placements that have become de facto families, especially when those foster parents have adopted siblings and when permanency timelines point toward finalization.

Taken together, these principles fortify West Virginia’s commitment to early, stable, and enduring permanency for abused and neglected children, cautioning against late‑stage placement changes that would disrupt critical bonds and family structures absent truly compelling reasons grounded in the child’s welfare.