In re K.G.

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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.G.
No. 25-855 (Berkeley County CC-02-2024-JA-123)
MEMORANDUM DECISION
Petitioner, the guardian ad litem for the child, K.G.,1 appeals the Circuit Court of Berkeley
County’s December 10, 2025, order denying the petitioner’s motion to permanently place K.G. in
a subsidized guardianship with her grandmother and dismissing the abuse and neglect petition,
arguing that the subsidized guardianship was in the child’s best interests.2 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
In June 2024, the DHS filed a child abuse and neglect petition against the mother primarily
alleging alcohol abuse. During the underlying proceedings, the DHS took custody of K.G. and
placed the child with her grandmother. In August 2024, the mother indicated that she was prepared
to offer a partial relinquishment of her parental rights. However, the guardian ad litem, acting upon
the child’s wishes and opposition to such relinquishment, insisted that the mother instead
participate in services under a preadjudicatory improvement period. It is uncontested that the
mother successfully completed her improvement period and was never adjudicated as an abusive
and/or neglectful parent. On November 18, 2025, the parties appeared for a final hearing regarding
permanency for K.G. Although the mother remained a nonabusing parent, the petitioner requested
the circuit court to permanently place K.G. in a subsidized legal guardianship with her
grandmother. The petitioner argued that such placement was in K.G.’s best interest because she
was settled in the grandmother’s home, wished to stay with her grandmother, the mother resided
in a different school district, and subsidies would help support K.G. The mother agreed to this
placement. However, the DHS objected to paying subsidies for the legal guardianship, arguing that
it had fulfilled its duty to reunify the family by providing extensive services to the mother to
successfully correct her abusive and/or neglectful conduct. The DHS argued that the abuse and
neglect petition should be dismissed.
1 Counsel Elizabeth L. Diehl appears as the child’s guardian ad litem. The West Virginia
Department of Human Services (“DHS”) appears by counsel Attorney General John B. McCuskey
and Assistant Attorney General Kristen E. Ross. The child’s mother, A.G., appears by counsel
Jonathan T. O’Dell.
2 We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
FILED
October 14, 2026
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

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Ultimately, in an extensive order, the circuit court concluded that dismissal, rather than a
subsidized legal guardianship, was appropriate under the circumstances. The circuit court
emphasized that the mother was never adjudicated as an unfit parent, as she had successfully
completed a preadjudicatory improvement period, and thus, she retained her full parental rights to
the child. The circuit court noted that “[n]o party has presented evidence that [K.G.] would be in
any danger or return[] to unsafe conditions with [the mother],” and the child had merely expressed
her preference of living with the grandmother. In weighing the different dispositions available, the
circuit court found that because there was no legal bar to reunification and there was little to no
legal support to authorize a subsidized guardianship, dismissal of the instant petition was
warranted and that this decision was consistent with the child’s best interests despite K.G.’s wishes
otherwise. Accordingly, the circuit court denied the petitioner’s request for a subsidized
guardianship for K.G., returned custody to the mother, and dismissed the abuse and neglect
petition. Additionally, the circuit court emphasized that its order did not preclude the parties from
allowing K.G. to continue to live with her grandmother and they could file a petition for
guardianship. It is from this order that the petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s substantive rulings for abuse of discretion, factual findings for clear error, and issues
of law de novo. Syl. Pt. 1, In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026). Before this Court, the
petitioner argues that the circuit court erred by denying K.G. a subsidized guardianship with her
grandmother as this was in the child’s best interests. However, the petitioner cites to no authority
that would permit subsidization under these circumstances. Instead, the petitioner cites to West
Virginia Code § 49-4-112(c), which states that the “[DHS] shall certify the child as eligible for a
subsidy to obtain . . . a legal guardianship if it is in the best interest of the child.” Critically, the
petitioner fails to engage with the remainder of that statute, as subsection (a) requires, in pertinent
part, that for subsidies to be granted for a legal guardianship, “the children must be in special
circumstances because one or more of the following conditions inhibit their . . . legal guardianship
placement,” including that the child has a disability, is emotionally disturbed, is an older child, is
part of a sibling group, or is a member of a racial or ethnic minority. W. Va. Code § 49-4-112(a)
(emphasis added). Here, the petitioner failed to assert that any of the above conditions existed or
inhibited the potential legal guardianship placement, making subsidized guardianship statutorily
unavailable. Furthermore, although receiving subsidized payments from the DHS would surely aid
any child, denial of such arrangement does not demonstrate that the circuit court failed to consider
the child’s best interests as the petitioner contends. Rather, the record shows that the circuit court
clearly considered the child’s best interests in deciding permanency for K.G. as it undertook
substantial analysis concerning whether the child would face potential harm if returned to the
mother’s care, the child’s relationship with her mother, and the fundamental importance of
preserving such parent-child relationship.3 See Syl. Pt. 1, in part, In re Willis, 157 W. Va. 225, 207
S.E.2d 129 (1973) (“[N]o rule is more firmly established than that the right of a natural parent to
the custody of his or her infant child . . . it is a fundamental personal liberty protected and
guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.”).
Notably, the mother was never adjudicated as an abusing and/or neglecting parent, as she
successfully completed a preadjudicatory improvement period and retained her parental rights,
3 In circuit court, the mother supported subsidized guardianship with the grandmother, but
on appeal she urges this Court to affirm the circuit court’s decision.

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supporting the circuit court’s dismissal of the instant petition. See In re K.B.-R, No. 24-30, 2025
WL 1765531 at *7 (W. Va. June 26, 2025) (memorandum decision) (“Given the lack of
adjudication as an unfit parent, [the father] had an inherent right to be reunified with the child.”);
In re State ex rel. L.D. v. Cohee, 247 W. Va. 695, 701-02, 885 S.E.2d 633, 639-40 (2022) (finding
error in the circuit court’s denial of reunification when the adjudicated parents successfully
completed their improvement periods and no law barred reunification); W. Va. Code § 49-4-604(c)
(outlining the list of dispositions in preferential order, with dismissal being first). Thus, merely
because the circuit court’s decision was contrary to K.G.’s wishes, this does not demonstrate error,
and the petitioner is not entitled to relief.4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 10, 2025, order is hereby affirmed.
Affirmed.
ISSUED: October 14, 2026
CONCURRED IN BY:
Chief Justice C. Haley Bunn
Justice William R. Wooton
Justice Charles S. Trump IV
Justice H. L. Kirkpatrick
Justice James W. Flanigan
4 In support of her argument, the petitioner also relies on West Virginia Code § 44-10-4,
which permits a child “above the age of fourteen years” to “nominate his or her own guardian,
who, if approved by the court, shall be appointed accordingly.” However, this statute is not
applicable as no minor guardianship petition was filed under Chapter 44 of the West Virginia
Code. Thus, the petitioner is not entitled to relief on this basis.