In re M.B. (Justice Bunn, concurring)

• Court: West Virginia Supreme Court
• Decided: November 13, 2025
• Docket: 24-176
• Status: Separate

Opinion

FILED No. 24-176 – In re M.B. November 13, 2025 released at 3:00 p.m. BUNN, Justice, concurring: C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

I agree that the circuit court committed no error in its ruling on the limited

issue before it: whether M.B.’s current foster placement serves his best interests. The

circuit court found that M.B. should remain in his foster placement, which provides him

with a “stable loving home,” reunited with his siblings, and where all parties agree he is

content, healthy, and loved. Although the guardian ad litem (“GAL”) insists that aspects of

the foster family’s Amish lifestyle threaten to implicate portions of the Foster Care Bill of

Rights (“FCBR”) in the future, she offered no evidence that any of those rights are being

curtailed. The circuit court correctly rejected the speculation necessary to reach most of the

GAL’s arguments, properly focusing instead on the undisputed benefit to M.B.’s health

and well-being his current placement affords—a holistic evaluation well within its

discretion. “Questions relating to . . . custody of the children are within the sound discretion

of the court and its action with respect to such matters will not be disturbed on appeal

unless it clearly appears that such discretion has been abused.” Syl., in part, Nichols v.

Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).

I write separately to underscore the narrow issue before the circuit court, the

limited application of the authority advanced by the GAL, and the scope of my concurrence

in the plurality opinion. M.B. is presently in the legal custody of the Department of Human

Services and placed with a non-relative foster family. As a foster child, M.B. is entitled to

1 the benefits of the FCBR and, despite the GAL’s forecasted concerns, he is being deprived

of nothing the FCBR affords him. M.B. is current on vaccinations, well-child care, and

obtained necessary surgical and specialty care; he has been denied none of the “medical,

dental, and vision care[] . . . as needed” required by subsection (a)(4) of the FCBR. W. Va.

Code § 49-2-126(a)(4). M.B.’s right to a “safe and healthy environment[]” guaranteed by

subsection (a)(1) is fully intact as M.B. and his sisters’ immersion into the Amish

community has been successful, with assurances that the foster family would relocate in

the event of any change in the community’s acceptance. § 49-2-126(a)(1). By being placed

with his siblings, M.B.’s right to “have and maintain contact with siblings as may be

reasonably accommodated[]” under subsection (a)(9) is fulfilled. § 49-2-126(a)(9). And

while the GAL makes much of M.B.’s right to “attend school” as referenced in subsection

(a)(13), that provision is not yet applicable as he is not of school age. § 49-2-126(a)(13).

The GAL’s motion to remove M.B. from his foster family uses the rights

enumerated under the FCBR to advance anticipatory concerns about M.B.’s post-adoptive

upbringing. However, the FCBR outlines the rights of foster children while they are in

foster care; any attempt to apply it beyond those bounds has no statutory basis. The Court

has described our child welfare system as ensuring that “‘appropriate care is given and

maintained’ for children who become participating members of this system.” In re G.G.,

249 W. Va. 496, 503, 896 S.E.2d 662, 669 (2023) (emphasis added). The FCBR has no

applicability to children who are no longer participating in that system, such as post-

adoptive children. In fact, the GAL’s brief acknowledges that the authority upon which she 2 relies pertains to a “child in state custody,” yet she seeks to extend those statutory and

policy mandates to unrealized scenarios involving post-adoptive children and the decisions

of their parents. The appropriateness of a foster child’s placement is not measured by

perceived “opportunities” lost under a parent-child relationship that does not yet exist, but

by the more finite and objective criteria of whether the placement provides the “custody,

care, commitment, nurturing and discipline consistent with the child’s best interests[.]” Syl.

Pt. 3, in part, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998).

Armed with little more than a list of ways the Amish lifestyle diverges from

the mainstream, the GAL presented the circuit court with no evidence that M.B. is or will

be deprived of the nurturing and care to which he is entitled as a foster child. Without more,

the circuit court was charged with determining whether these projected concerns warranted

removing a young child from the only family he has ever known. The Court has recognized

that “significant bonds are formed between a child and his or her caregivers at this young

age, and, critically, any disruption of those bonds has the potential to severely impact the

child’s growth and development.” In re G.G., 249 W. Va. at 504, 896 S.E.2d at 670.

Therefore, “stable relationships should be preserved whenever feasible.” State ex rel.

Treadway v. McCoy, 189 W. Va. 210, 213, 429 S.E.2d 492, 495 (1993). More specifically,

“this Court has consistently and repeatedly found that it is in a child’s best interests to

remain in a foster home when there is evidence of a significant bond between the child and

the foster parents[.]” In re M.M., 251 W. Va. 74, 909 S.E.2d 109, 126 (2024) (Armstead,

C.J., dissenting). In view of these considerations, there is no abuse of discretion in a ruling 3 that advances M.B.’s continuation in a stable placement where he is thriving in his foster

family’s impeccable care. To the extent that the plurality opinion can be read as addressing

issues or arguments not captured in the foregoing discussion, my concurrence is limited to

the facts and considerations I have outlined.