IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2026 Term FILED _______________ March 6, 2026 released at 3:00 p.m. No. 24-610 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA
In Re X.R.
________________________________________________________
Appeal from the Circuit Court of Mason County The Honorable Anita Harold Ashley, Judge Case No. CC-26-2022-JA-116
REVERSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS
Submitted: January 28, 2026 Filed: March 6, 2026
Nic Dalton, Esq. Tanya Hunt Handley, Esq. Nic Dalton Law PLLC Handley Law Office, PLLC Point Pleasant, West Virginia Point Pleasant, West Virginia Counsel for R.S., Petitioner Guardian ad litem for X.R.
John B. McCuskey, Esq. David B. Richardson, Esq. Attorney General Winfield, West Virginia Andrew T. Waight, Esq. Counsel for H.R., Respondent Assistant Attorney General Charleston, West Virginia Counsel for the Department of Human Services, Respondent
JUSTICE EWING delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “‘When this Court reviews challenges to the findings and
conclusions of the circuit court, a two-prong deferential standard of review is applied. We
review the final order and the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings under a clearly erroneous
standard.’ Syl., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).”
Syllabus Point 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015).
2. “‘“The exercise of discretion by a trial court in awarding custody of a
minor child will not be disturbed on appeal unless that discretion has been abused;
however, where the trial court’s ruling does not reflect a discretionary decision but is based
upon an erroneous application of the law and is clearly wrong, the ruling will be reversed
on appeal.” Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570
(1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182
W.Va. 57, 385 S.E.2d 912 (1989).’ Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665
S.E.2d 300 (2008).” Syllabus Point 2, In re Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850
(2011).
3. “In the law concerning custody of minor children, no rule is more
firmly established than that the right of a natural parent to the custody of his or her infant
child is paramount to that of any other person; it is a fundamental personal liberty protected
i and guaranteed by the Due Process Clauses of the West Virginia and United States
Constitutions.” Syllabus Point 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
4. “A parent has the natural right to the custody of his or her infant child
and, unless the parent is an unfit person because of misconduct, neglect, immorality,
abandonment or other dereliction of duty, or has waived such right, or by agreement or
otherwise has transferred, relinquished or surrendered such custody, the right of the parent
to the custody of his or her infant child will be recognized and enforced by the courts.”
Syllabus, Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960).
5. “A psychological parent is a person who, on a continuing day-to-day
basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s
psychological and physical needs for a parent and provides for the child’s emotional and
financial support. The psychological parent may be a biological, adoptive, or foster parent,
or any other person. The resulting relationship between the psychological parent and the
child must be of substantial, not temporary, duration and must have begun with the consent
and encouragement of the child’s legal parent or guardian. To the extent that this holding
is inconsistent with our prior decision of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d
515 (1990), that case is expressly modified.” Syllabus Point 3, In re Clifford K., 217 W.
Va. 625, 619 S.E.2d 138 (2005).
6. “A child has a right to continued association with individuals with
whom he has formed a close emotional bond, including foster parents, provided that a
ii determination is made that such continued contact is in the best interests of the child.”
Syllabus Point 11, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996).
7. “‘At the conclusion of the improvement period, the court shall review
the performance of the parents in attempting to attain the goals of the improvement period
and shall, in the court’s discretion, determine whether the conditions of the improvement
period have been satisfied and whether sufficient improvement has been made in the
context of all the circumstances of the case to justify the return of the child.’ Syllabus Point
6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).” Syllabus Point 2, In
re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995).
iii Ewing, Justice:
X.R. was born to J.R. (mother) and a then-unknown father. J.R., struggling
with substance addiction, left X.R. with J.R.’s sister, H.R. Later, through an abuse-and-
neglect proceeding, the Circuit Court of Mason County terminated J.R.’s parental rights to
X.R. In that same proceeding, the petitioner, R.S., was identified as X.R.’s biological
father. The Department of Human Services (“the DHS”) filed an amended petition in
which the petitioner was named; he was adjudicated as an abusing parent; and the circuit
court then granted the petitioner a post-adjudicatory improvement period. The circuit court
deemed H.R. to be X.R.’s “psychological parent.” The petitioner successfully completed
the improvement period. The circuit court ordered that the petitioner and H.R. share
parenting time and decision making as to X.R. equally, then dismissed the petition and
struck this matter from its docket.
On appeal, the petitioner argues that the parenting plan ordered by the circuit
court violated his fundamental right to the care, custody, and control of X.R. We concur
with the petitioner that the circuit court improperly granted H.R. equal custody and
decision-making authority as to X.R., and so reverse that portion of the parenting plan. We
vacate the remainder of the parenting plan and the final dismissal order and remand this
matter to allow the circuit court to determine the scope of X.R.’s right of continued
association with H.R.
1 I. FACTUAL AND PROCEDURAL BACKGROUND
1 In October 2022, the DHS filed a petition alleging that two-year old X.R. 2 and her older sister, T.R., were abused and/or neglected children. The DHS alleged that
the children’s mother, J.R., was abusing drugs and unable to care for them. The DHS 3 further alleged that C.R., father to T.R., abused drugs in the presence of T.R. The DHS
alleged that X.R.’s father was unknown, had provided no support to X.R., and had
abandoned the child. As of November 2022, T.R. and X.R. were placed with their maternal
aunt, H.R.
The DHS filed an amended petition in December 2022, alleging that J.R. had
identified the petitioner as the father of X.R., although paternity had yet to be established.
The DHS further alleged that the petitioner had “allowed [X.R.] to remain with [J.R.]
knowing [J.R.] is drug-affected and [did] not have stable housing for the infant child to
reside . . . .” It appears that J.R. later stipulated to the allegations in the amended petition
and was adjudicated as an abusing and/or neglecting parent. The circuit court granted J.R.
a post-adjudicatory improvement period. J.R. entered an inpatient drug rehabilitation
1 We use initials to refer to the parties in this case because it involves minors and sensitive matters. See W. Va. R. App. P. 40(e) 2 T.R. is not at issue in this proceeding. 3 C.R.’s parental rights were terminated by order entered on December, 12, 2023.
2 facility in February 2023 but left shortly thereafter. The circuit court revoked J.R.’s
improvement period in April 2023 and terminated her parental rights to X.R. and T.R. in
May 2023.
In September 2023, the DHS filed a second amended petition in which it 4 alleged that a blood test had confirmed that the petitioner was the father of X.R. The DHS
restated the allegations against the petitioner from the amended petition and added the
following allegation in paragraph 4.s. of the second amended petition: “[The petitioner]
had inappropriate housing during the time of the events in the petition and had no way to
care for or provide a stable living environment for [X.R.] . . . .” The DHS went on to allege
that “[s]ince paternity was established, [the petitioner] has cooperated with [the DHS], has
engaged in visits with [X.R.], and is working [with] services towards addressing his
housing issues . . . .” During a hearing in September 2023, the petitioner stipulated to the
allegation contained in paragraph 4.s. of the second amended petition, quoted above. The
circuit court adjudicated the petitioner as an abusing parent and granted him a six-month
improvement period.
The petitioner underwent a psychological evaluation in October 2023. The
evaluator reached a “highly guarded” conclusion that the petitioner could not reliably attain
4 The DHS alleged that the petitioner was father to three other children, who lived with their biological mother. The DHS named those children and their mother as nominal parties to the second amended petition. Those children are not at issue in this appeal.
3 minimally adequate parenting due to the “lack of an established bond with [X.R.], history
of polysubstance abuse and dependence, unemployment, and defensive responding in the
current evaluation.” Nevertheless, during a December 2023, hearing, the DHS
recommended that visitation between the petitioner and X.R. occur at the petitioner’s
residence. The circuit court entered an order in February 2024 providing for such visitation
and directing service providers to facilitate transportation for X.R. to attend the visits.
H.R. moved to intervene in the case in January 2024. H.R. stated that she
and her daughters had “cared for [X.R.] from the day she came home from the hospital.”
According to H.R., X.R. had been in her care “ever since,” and she and her daughters were
“the only constant [X.R.] has ever known.” H.R. acknowledged that X.R. “deserves to
have a relationship with” the petitioner but relayed that she felt “that [X.R.] will be
devastated if she is completely taken away from us.” In the motion to intervene, H.R. also
asked the circuit court to “grant [her] shared custody of” X.R.
At a review hearing in May 2024, the DHS reported that the petitioner
“should successfully complete his Period of Improvement as of June 5, 2024.” The DHS
recommended that the petitioner receive a three-month period of follow-up services,
including “‘pop-ins’ and random supervision.” The DHS also recommended that H.R. be
deemed X.R.’s psychological parent and given parenting time. The circuit court adopted
both recommendations by order entered on May 23, 2024.
4 The guardian ad litem submitted a report to the circuit court on June 17, 2024.
The guardian ad litem recommended that H.R. have parenting time during the second week
of each month and the fourth weekend during the summertime, and the second and fourth
weekend of each month during the school year. The guardian ad litem also recommended
a shared holiday schedule. The court conducted a review hearing on June 18, 2024. In an
order entered following the hearing, the court held the proposed parenting plan in abeyance
to allow further discussion by the multidisciplinary team. The circuit court also
“recommend[ed] more transition time in the Parenting Plan before the Parenting Plan is 5 approved.” The court set the matter for a review hearing on August 28, 2024.
The guardian ad litem filed an updated report with the circuit court on August
15, 2024. There, the guardian ad litem detailed a lengthy meeting with X.R. held the day
before. According to the guardian ad litem, X.R. stated that she lived with “Mom,”
referring to H.R., and H.R.’s daughters. X.R. reported to the guardian ad litem that J.R.,
whose parental rights had been terminated in May 2023, was present when she (X.R.)
visited the petitioner, and that the petitioner told “her that [H.R.] took her away from her
real mom and that she is going to get another mom.” According to the guardian ad litem,
X.R. disclosed that she sleeps in her own bedroom when at H.R.’s home and on the sofa
with the petitioner when at his home. The child reported that she played at H.R.’s home
5 The circuit court entered an “Amended Order Review” on August 30, 2024, in which it noted the presence of H.R. at the June 18, 2024, hearing.
5 and watched television at the petitioner’s home. The guardian ad litem also reported
tension between H.R. and the petitioner.
The guardian ad litem then presented to the court a revised, recommended
parenting plan. Under this revised plan, H.R. would have parenting time with X.R. during 6 the school year from Monday afternoon until Thursday or Friday afternoons, and the
petitioner would have parenting time, otherwise. The guardian ad litem recommended the
same schedule for the summertime, with allowances to permit H.R. and the petitioner each
to take X.R. on vacations. The guardian ad litem recommended that X.R. attend the school
nearest H.R.’s home, given that H.R. would be allocated more week-day parenting time.
The guardian ad litem opined that the revised, recommended plan was “in [X.R.]’s best
interest to continue to bond with [the petitioner] and also to continue to have equal time
with her psychological mother.” All told, the parenting plan allocated roughly fifty-fifty
custody of X.R. between the petitioner and H.R.
The Court conducted a review hearing on August 28, 2024. At the
commencement of the hearing, the petitioner’s counsel stated the following:
The guardian ad litem, in her report, has a parenting plan that’s a 50/50 schedule between [the petitioner] and [H.R.], and I’m not sure of [H.R.’s] position. [The petitioner] would object to that plan, and he would object simply because of being the biological parent, and then we have a psychological parent. He would like more than 50/50, and he proposes a 60/40 arrangement, or even the guardian ad litem’s – had initially
6 H.R.’s parenting time was to end on Thursday afternoon or Friday afternoon, alternating weekly.
6 filed a report in June that was a parenting plan. We would ask the Court to adopt that if – in the alternative to our 60/40 proposal . . . .
The petitioner’s counsel examined Ms. Sasha Gibbs, the Child Protective
Services case worker. Ms. Gibbs testified that she had received no complaints about the
petitioner from the service providers who assisted him with visitation. Ms. Gibbs went on
to testify that she believed the parenting plan proposed by the guardian ad litem most
recently was in X.R.’s best interest. Ms. Gibbs acknowledged that she had not objected to
the parenting plan originally proposed by the guardian ad litem but that since then,
“[t]here’s been a lot more that’s happened. I’ve experienced some videos, listened to
conversations between – on – from phone conversations between [H.R.] and [X.R.]. I’ve
watched them. I’ve talked to her myself.”
At the close of the hearing, the guardian ad litem argued in support of the 7 revised, proposed parenting plan. The petitioner’s counsel conceded that the petitioner
“underst[oo]d that [X.R.] should have time with [H.R.], and not just an auxiliary amount
of time, but legitimate time for her to continue bonding.” He then reiterated his argument
that the plan was not constitutionally “proper,” questioning “at what point” is a
7 The petitioner’s counsel also stated that the petitioner “had a [f]amily [c]ourt case pending at the time this abuse-and-neglect petition was filed, so he was actively pursuing his rights to the child even prior to this case. He wasn’t just a deadbeat dad, and then now, all of a sudden, he gets served with an abuse-and-neglect case . . . .”
7 “psychological parent . . . vested with more rights than the biological parent?” The circuit
court went on to rule as follows:
Okay. Having considered everything here, I really think that the best interest of the child is what I need to consider, and I think that the proposal offered by the guardian ad litem for 50/50 makes the most sense for [X.R.]
I appreciate the fact that [the petitioner] has stepped up and become the dad that he needs to be for this child, and I appreciate the psychological parent, [H.R.], for taking care of her all this time. So I am going to approve the parenting plan that was proposed by our guardian ad litem.
The court entered the “Order Regarding Parenting Plan for [X.R.]” on August
28, 2024 (“the Parenting Plan Order”). In addition to the allocation of parenting time
described above, the order specified that the petitioner and H.R. “shall share all decision
making for [X.R.], including the major decisions such as education, religion, medical,
extracurricular activities, discipline, etc.” On September 16, 2024, the court entered an
order, entitled “Order Review / Dismissal,” in which it stated that permanency had been
achieved for X.R. and ordered that the matter be dismissed and stricken from its docket
(“the Dismissal Order”). The petitioner appeals those orders.
II. STANDARD OF REVIEW
We review the circuit court’s orders under the following standard:
“When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings
8 under a clearly erroneous standard.” Syl., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).
Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015). Further,
“‘[t]he exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court’s ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.’ Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).” Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).
Syl. Pt. 2, In re Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850 (2011). With those standards
in mind, we turn to the parties’ arguments.
III. DISCUSSION
The petitioner challenges the Parenting Plan Order, in which the circuit
ordered that he and H.R., X.R.’s psychological parent, share custody of X.R. equally, as
well as decision-making authority. The petitioner “argues that it is a violation of a
fundamental constitutional right to be required to equally share custody and decision-
making responsibility with a person who is deemed a psychological parent.” The petitioner
asserts that he successfully completed a post-adjudicatory improvement period, X.R.’s
overnight visits in his home were successful, and the parenting services providers did not
submit negative reports to the DHS regarding visitation. The petitioner asks this Court to
overturn the Parenting Plan Order and remand this matter with directions to the circuit
9 court to adjudge the petitioner as X.R.’s “primary custodial and decision-making parent . .
. .”
The DHS responds that the circuit court properly found H.R. to be X.R.’s
psychological parent and allowed H.R. to intervene to seek custody of X.R. The DHS
argues that there are limited circumstances in which a psychological parent’s preferences
may trump those of a biological parent, and that this is such a case considering X.R.’s best
interests. The DHS argues that the Parenting Plan Order does not violate the petitioner’s
right to the care, custody, and control of X.R. because the petitioner was adjudicated as an
abusing parent and West Virginia Code § 49-4-604 “clearly contemplates limitations upon
a parent’s parental rights, even if they have successfully completed an improvement
period.” The guardian ad litem argues in support of the Parenting Plan Order, asserting
that “it was in the child’s best interests for H.R. and [the petitioner] to be granted 50/50
custody,” and that the evidence adduced before the circuit court supports such an
arrangement. H.R. likewise argues that the circuit court’s order serves X.R.’s best interests.
A.
We begin our consideration of the parties’ arguments by reviewing a parent’s
fundamental right to the care, custody, and control of his child. “The liberty interest at
issue in this case—the interest of parents in the care, custody, and control of their
children—is perhaps the oldest of the fundamental liberty interests . . . .” Troxel v.
Granville, 530 U.S. 57, 65 (2000). This Court has held that,
[i]n the law concerning custody of minor children, no rule is more firmly established than that the right of a natural
10 parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.
Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973); see also Syl. Pt. 3, Lindsie
D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003) (“The Due Process Clauses
of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth
Amendment of the Constitution of the United States protect the fundamental right of
parents to make decisions concerning the care, custody, and control of their children.”).
Yet, a parent’s rights are not absolute:
[a] parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.
Syl., Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960) (emphasis added);
see also In re Antonio R.A., 228 W. Va. at 388, 719 S.E.2d at 858 (stating that “a parent’s
natural right to the custody of his or her child is limited in cases in which the parent is
found to be abusive, neglectful, or otherwise unfit”). Nevertheless, the child’s best interests
“will not be invoked to deprive an unoffending parent of his natural right to the custody of
his child.” Hammack v. Wise, 158 W. Va. 343, 347, 211 S.E.2d 118, 121 (1975).
“[S]triking a balance between a biological parent’s constitutional rights and
the child’s best interests can be difficult . . . .” In re Antonio R.A., 228 W. Va. at 389, 719
11 S.E.2d at 859. That is doubly so in matters involving the “psychological parent” concept,
which is an “equitable theory and judge-made construct . . . .” In re K.H., 235 W. Va. 254,
262, 773 S.E.2d 20, 28 (2015). This Court defined a “psychological parent” in Syllabus
Point 3 of In re Clifford K. as,
a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child’s legal parent or guardian. To the extent that this holding is inconsistent with our prior decision of In the Interest of Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990), that case is expressly modified.
Id., 217 W. Va. 625, 619 S.E.2d 138 (2005). “[T]he limited rights of a psychological parent
cannot ordinarily trump those of a biological or adoptive parent to the care, control, and 8 custody of his/her child.” Id. at 644, 619 S.E.2d at 157. However, “under appropriate
circumstances,” a psychological parent may have a “right to continued visitation with” the
child with whom he or she is bonded. In re K.H., 235 W. Va. at 262, 773 S.E.2d at 28.
8 In In re Clifford K., we not only reversed the circuit court’s order denying a psychological parent’s motion to intervene in a custody matter, but we also ordered that permanent custody of the child be granted to the child’s psychological parent. In re Clifford K., 217 W. Va. at 647–48, 619 S.E.2d at 160–61. The DHS suggests that this case presents extraordinary circumstances, like those In re Clifford K., that justify privileging H.R.’s right as the psychological parent of X.R. In In re Clifford K., however, the child’s biological mother was deceased and the biological father, Clifford K., did not seek custody of his son; in fact, he, “acquiesce[d] in an award of custody to” the psychological parent. Id. at 631 n.3, 619 S.E.2d at 144 n.3.
12 Importantly, the “child has a right to continued association with individuals with whom he
has formed a close emotional bond, including foster parents, provided that a determination
is made that such continued contact is in the best interests of the child.” Syl. Pt. 11, In re
Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); see In re K.H., 235 W. Va. at 266,
773 S.E.2d at 32 (observing that “due to the grandmother’s status as psychological parent
to the child, the grandmother and the child are entitled to continued association with one
another”).
Still, “[a]s the Supreme Court stated in Troxel, there is ‘a presumption that
fit parents act in the best interest of their children.’” In re Visitation of A.P., 231 W. Va.
38, 43–44, 743 S.E.2d 346, 351–52 (2013) (quoting Troxel, 530 U.S. at 69). Accordingly,
courts may not “interven[e] in a fit parent’s decision making on a best interests basis,”
solely. Visitation of Cathy L.(R.)M. v. Mark Brent R., 217 W. Va. 319, 328, 617 S.E.2d
866, 875 (2005). More to the point, “a judicial determination regarding whether . . .
visitation rights [for a third party] are appropriate,” over a fit parent’s objection “may not
be premised solely on the best interests of the child analysis. [The court] must also consider
and give significant weight to the parents’ preference . . . .” Id. (citing Troxel, 530 U.S. at
69). Therefore, when faced with visitation and custody questions involving fit parents and
nonparents, a court must “assess[] . . . the special circumstances of each case,” and “accord
special weight to the preferences of the parent,” while maintaining the best interests of the
child “as a critical component of the dialogue regarding visitation or custody.” In re K.H.,
235 W. Va. at 265, 773 S.E.2d at 31.
13 B.
As discussed above, the petitioner argues that the Parenting Plan Order
violates his fundamental right to the care, custody, and control of X.R. The DHS counters
that the Parenting Plan Order does not violate the petitioner’s right to the care, custody,
and control of X.R. because the petitioner was adjudicated as an abusing parent and West
Virginia Code § 49-4-604 “clearly contemplates limitations upon a parent’s parental rights,
even if they have successfully completed an improvement period.” Additionally, the
respondents contend that the Parenting Plan Order may be justified by X.R.’s best interests,
alone.
Having reviewed the record, the parties’ arguments, and relevant authority,
we concur with the petitioner that the circuit court erred when it ordered that he, X.R.’s
biological father, share decision-making and custody of X.R. equally with H.R., X.R.’s
psychological parent. First, our law is clear: “the right of a natural parent to the custody
of his or her infant child is paramount to that of any other person.” In re Willis, 157 W.
Va. at 237, 207 S.E.2d at 136. Here, at the close of this Chapter 49, abuse-and-neglect
proceeding, the petitioner’s parental rights remained intact. Neither the Parenting Plan
Order nor the Dismissal Order references West Virginia Code § 49-4-604(c) (2020), the
statute that sets forth a circuit court’s decisional options at the dispositional phase of an
abuse-and-neglect matter under Chapter 49 of the West Virginia Code. Clearly, though,
the circuit court did not impose disposition pursuant to West Virginia Code
§ 49-4-604(c)(3) (return the child to his or her own home under the supervision of the
14 DHS); id. § 49-4-604(c)(4) (order terms of supervision calculated to assist the child and
any abusing or battered parent which prescribe the manner of supervision and care of the
child); id. § 49-4-604(c)(5) (temporary guardianship); or § 49-4-604(c)(6) (termination of
parental rights). Therefore, we conclude that the circuit court imposed disposition in a
manner akin to § 49-4-604(c)(1) (dismissal of the petition) or § 49-4-604(c)(2) (referral to
a community agency for assistance and dismissal of the petition) and so left the petitioner’s
parental rights fully intact.
Consequently, as the circuit court did not limit or terminate the petitioner’s
parental rights pursuant to § 49-4-604(c)(3)–(6), the petitioner retained “the natural right
to the custody of his or her infant child,” X.R., “unless [he was] an unfit person . . . .”
Whiteman, 145 W. Va. at 696, 116 S.E.2d at 696, Syl., in part (emphasis added). The
respondents appear to argue that the petitioner was an unfit person in August 2024, when
the circuit court entered the Parenting Plan Order, because the petitioner was adjudicated 9 as an abusing parent in September 2023. However, that position is flawed considering the
9 Respondents contend that the petitioner exposed X.R. to J.R. after J.R.’s parental rights were terminated in 2023 and attempted to undermine H.R.’s relationship with X.R. in other ways following the completion of the post-adjudicatory improvement period. According to the DHS, such action by the petitioner supports “balanc[ing] his custodial and decision-making responsibilities with Aunt H.R.” The DHS’s argument overlooks two points. First, while the guardian ad litem reported these alleged actions of the petitioner to the circuit court, no findings were made regarding this purported conduct. Second, the circuit court stated during the August 28, 2024, hearing that it “appreciated the fact that [the petitioner] has stepped up and become the dad he needs to be for” X.R., despite the information imparted by the guardian ad litem. (Emphasis added).
15 petitioner’s successful completion of a post-adjudicatory improvement period in June
2024.
“‘[A]n improvement period in the context of abuse and neglect proceedings
is viewed as an opportunity for the miscreant parent to modify his/her behavior so as to
correct the conditions of abuse and/or neglect with which he/she has been charged.’” In re
J.D.-1, 247 W. Va. 270, 279, 879 S.E.2d 629, 638 (2022) (quoting In re Emily & Amos B.,
208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000)). We have held that,
“[a]t the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court’s discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.”
Syl. Pt. 2, In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995) (quoting Syl.
Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)). Nevertheless,
“[t]he assessment of the overall success of the improvement period lies within the
discretion of the circuit court ‘regardless of whether or not the individual has completed all
suggestions or goals set forth in family case plans.’” Id. at 27, 459 S.E.2d at 138 (quoting
In Interest of Carlita B., 185 W. Va. at 626, 408 S.E.2d at 378).
As all acknowledge, the petitioner successfully completed his improvement
period in June 2024, demonstrating that the petitioner had—by that time—corrected the
condition of abuse for which he was adjudicated: “inappropriate housing during the time
of the events in the petition and . . . no way to care for or provide a stable living environment
16 for [X.R.].” Neither the Parenting Plan Order nor the Dismissal Order contain findings to
support the conclusion that, despite that success, the petitioner remained an abusing parent,
i.e., an unfit parent, in August 2024. Neither order contains a finding that the petitioner
had, for example, “fail[ed] to improve [his] overall attitude and approach to parenting.” In
re Jonathan Michael D., 194 W. Va. at 27, 459 S.E.2d at 138 (internal quotations and
alterations omitted). In fact, the circuit court stated during the August 28, 2024, hearing
that the petitioner “has stepped up and become the dad he needs to be for” X.R. Therefore,
in August 2024, the petitioner was not an “unfit person,” and his right to the care, custody,
and control of X.R. was then “paramount to that of any other person.” In re Willis, 157 W. 10 Va. at 237, 207 S.E.2d at 136.
10 The DHS suggests that this Court look to West Virginia Code §§ 48-9-206 (2022), 207 (2022), and 209 (2024) to affirm the Parenting Plan Order. With regard to those statutes, this Court has held that,
[a] circuit court is obligated to apply the factors and considerations set forth in West Virginia Code §§ 48-9-206 (2018) and -207 (2001) in allocating custodial and decisionmaking responsibilities when reunifying children subject to abuse and neglect proceedings with parents, guardians, or custodians who are no longer cohabitating at the close of the proceedings. Where findings of abuse and/or neglect have been established, the circuit court must further employ the mandatory considerations and procedures set forth in West Virginia Code § 48-9-209 (2016), in order to protect the children from further abuse and/or neglect.
Syl. Pt. 5, In re T.M., 242 W. Va. 268, 835 S.E.2d 132 (2019) (emphasis added).
Here, the issue before the circuit court at the end of this abuse-and-neglect proceeding was not the reunification of X.R. with “parents, guardians, or custodians who
17 The DHS argues that a circuit court “may limit the rights of a parent who has
successfully completed an improvement period,” and cites to In re B.H. for support. Id.,
233 W. Va. 57, 754 S.E.2d 743 (2014). In that case, we held that, “[i]n making the final
disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with
the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of
the child.” Id. at 237, 754 S.E.2d at 743, Syl. Pt. 4. We affirm that principle but do not
agree with the DHS that it supports the Parenting Plan Order. First, we reiterate that the
circuit court did not impose disposition in this matter pursuant to West Virginia Code
§ 49-4-604(c)(3), (4), (5), or (6)—dispositional options that limit or terminate some or all
parental rights. Second, the facts of In re B.H. are highly distinguishable. In that case, the
petitioner-mother was adjudicated as neglectful for, among other things, exposing her
children to sex offenders, resulting in the sexual abuse of the children. Id. at 61, 754 S.E.2d
at 747. The petitioner-mother was granted an improvement period. Id. “While the mother
complied with certain aspects of her improvement period, in other areas she experienced
difficulties,” such as “knowingly . . . dating and living with another sex offender . . . .” Id.
At disposition, the circuit court initially terminated the petitioner-mother’s parental rights;
are no longer cohabitating at the close of the proceedings,” id., so our analysis does not extend to those statutes. See also id. at 276 n.11, 835 S.E.2d at 140 n.11 (noting that the Court’s “holding and analysis” in In re T.M. were “limit[ed] . . . to the specific issue of the governance of Chapter 48 custodial provisions where parents have sought judicial allocation of custody through divorce proceedings, but the family court has lost jurisdiction to make those determinations due to the pendency of abuse and neglect proceedings”) (emphasis added).
18 however, the court then entered a “Corrected Disposition Order” in which it stated that the
petitioner-mother had “‘substantially complied’” with the terms of the improvement
period. Id. at 63, 754 S.E.2d at 749. The court granted primary custody of the children to 11 their non-offending father, with liberal visitation for the petitioner-mother. Id.
On appeal, we affirmed the circuit court’s order because “although the
mother substantially complied with the terms and conditions of her improvement period,
there were continuing concerns that she would again become involved with inappropriate
individuals and thereby continue to expose her daughters to the serious risks attendant with
such ill-advised associations.” Id. at 66, 754 S.E.2d at 752. We went on to explain that,
[u]nlike an abuse and neglect proceeding that involves a dirty home or a parent abusing drugs, where a parent’s success in an improvement period can be measured in concrete terms of whether the home is clean or the parent’s drug screens are negative, here, the circuit court had to assess whether the mother had internalized what the service providers endeavored to teach her during her improvement period and whether she would, in fact, protect her children by avoiding relationships with individuals in whose presence her children were placed at risk of abuse.
Id.
In contrast to the mother-petitioner in In re B.H., the petitioner in this case
successfully completed his improvement period with no qualification apparent from the
11 In re B.H. is also distinguishable, factually, because that case involved custodial allocation between two parents, both with parental rights fully intact. It did not involve an award of custody to a psychological parent in derogation of the fit natural parent’s rights.
19 record in this case. Ms. Gibbs, the CPS worker, testified during the August 28, 2024,
hearing that she did not receive negative reports about the petitioner’s parenting abilities
from the service providers tasked with facilitating visitation between the petitioner and
X.R., and the circuit court placed X.R. in the petitioner’s custody without supervision.
Moreover, the type of neglect for which the petitioner was adjudged—“inappropriate
housing during the time of the events in the petition and . . . no way to care for or provide
a stable living environment for” X.R.—differs vastly from the less “concrete” question
faced by the circuit court in In re B.H.: whether the petitioner-mother “had internalized
what the service providers endeavored to teach her and whether she would, in fact, protect
her children by avoiding relationships with” sex offenders. Id. For all these reasons, In re
B.H. cannot justify the custody and decision-making terms of the Parenting Plan Order.
In sum, when the circuit court entered the Parenting Plan Order in August
2024, (1) the petitioner’s parental rights remained intact, and (2) the petitioner was no
longer an unfit parent. Therefore, the petitioner’s fundamental right to the care, custody,
and control of X.R. was then “paramount to that of any other person.” In re Willis, 157 W.
Va. at 237, 207 S.E.2d at 136. Consequently, the circuit court erred when it granted H.R.
decision-making authority and custody as to X.R. equal to that which it granted the 12 petitioner based solely on a finding that such an arrangement was in X.R.’s best interests.
See In re Visitation of A.P., 231 W. Va. at 43, 743 S.E.2d at 351 (stating that “[t]he
12 Consequently, the Dismissal Order must be vacated.
20 mandates of Troxel require that the wishes of the petitioner, as a fit parent presumed
capable of rational choices concerning the relationships to be enjoyed by her child, be
accorded special weight”). Therefore, we reverse that portion of the Parenting Plan Order.
C.
There are rights at stake in this appeal other than the petitioner’s fundamental
right to the care, custody, and control of X.R. Again, a “child has a right to continued
association with individuals with whom he has formed a close emotional bond, including
foster parents, provided that a determination is made that such continued contact is in the
best interests of the child.” In re Jonathan G., 198 W. Va. at 736, 482 S.E.2d at 913, Syl.
Pt. 11. There is no dispute that X.R. and H.R. share a close emotional bond, and that
continued association with H.R. is in X.R.’s best interests. See In re K.H., 235 W. Va. at
266, 773 S.E.2d at 32 (observing that “due to the grandmother’s status as psychological
parent to the child, the grandmother and the child are entitled to continued association with
one another”). Therefore, we vacate the remainder of the Parenting Plan Order and remand
this case to the circuit court with directions to enter an order determining the scope of X.R. 13 and H.R.’s continued association, consistent with this opinion. To reach that
determination on remand, the court must assess the special circumstances of this case,
accord special weight to the preferences of the petitioner, and consider X.R.’s best interests.
See id. at 265, 773 S.E.2d at 31 (affirming grant of custody to biological father but
13 The circuit court should also consider the emotional bond formed by X.R. with H.R.’s daughters, whether that bond supports continued association between X.R. and H.R.’s daughters, and, if so, the scope of that continued association.
21 remanding for entry of an order “specifying a liberal visitation schedule” between
grandmother and child due to grandmother’s status as child’s psychological parent). The
circuit court may expeditiously conduct any proceedings on remand necessary to assist in
that determination, including, but not limited to holding an additional hearing(s).
IV. Conclusion
For the reasons discussed above, we vacate the Dismissal Order, reverse-in-
part and vacate-in-part the Parenting Plan Order and remand this case for further
proceedings as specified herein. The Clerk is directed to issue the mandate
contemporaneously with this Opinion.
Reversed, in part; vacated, in part; and remanded with directions.