In re: W.S., a minor

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
June 11, 2025
IN RE: W.S., a minor, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS

No. 24-ICA-335 (Fam. Ct. Mineral Cnty. Case No. FC-29-2016-FIG-28) OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Tryston S.1 appeals the August 8, 2024, order of the Family Court of
Mineral County denying her petition to terminate Respondents Steven S. and Tina S.’s
guardianship of W.S., a minor child. Respondents timely filed a response in support of the
family court’s decision. The guardian ad litem timely filed a summary response opposing
the family court’s decision and recommending termination of the guardianship. Tryston S.
did not file a reply.2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ oral arguments and briefs, the appendix record,
and the applicable law, this Court finds error in the family court’s decision, but no
substantial question of law. Therefore, this case satisfies the “limited circumstances”
requirement of Rule 21(d) of the Rules of Appellate Procedure, and a memorandum
decision is appropriate to reverse the family court’s order and to remand to the family court
for the entry of an order consistent with this decision.

Tryston S. is the mother of W.S., born in 2014 and the minor child who is the subject
of this appeal. Steven S. and Tina S. (“the Grandparents”) are the child’s paternal
grandparents.3 In 2016, the Grandparents initiated an action in the family court seeking
guardianship of W.S., then two years old. See W. Va. Code § 44-10-3. At that time, Tryston

1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved in this case. See In re
K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R., II, 230 W. Va. 731,
742 S.E.2d 419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State
v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990); W. Va. R. App. P. 40(e).
2
Petitioner is represented by Christopher D. Janelle, Esq. Respondents are
represented by Max H. White, Esq. Lauren M. Wilson, Esq., is the child’s court-appointed
guardian ad litem.
3
W.S.’s father, Garrett S., did not participate in the proceedings below or in this
appeal. However, the record reflects that W.S. has contact with Garrett S. and his other
children, W.S.’s half-siblings, when she is in the care of the Grandparents.

1
S. consented to the Grandparents’ guardianship because she was struggling with addiction
and facing drug-related criminal charges.4 By order entered January 13, 2017, the family
court granted the Grandparents’ petition for guardianship and appointed them W.S.’s legal
guardians.

It is undisputed that in the years since the court appointed the Grandparents
guardians, Tryston S. has dramatically changed her life for the better. First, Tryston S. no
longer uses illegal drugs. Further, she was released from probation in 2023, and at the time
of the proceeding below, was gainfully employed, having recently received a promotion.
Additionally, Tryston S. is now married, and she and her husband purchased a home in
2023. In 2024, they welcomed their first child together, W.S.’s half-sibling.

Over the years, as Tryston S. improved her life and living situation, she sought to
terminate the Grandparents’ guardianship and regain custody of W.S. She filed her first
action to terminate the guardianship in August 2020. While the family court denied her
request, the court granted Tryston S. visitation with W.S. In December 2022, Tryston S.
filed her second action to terminate the Grandparents’ guardianship; the family court again
denied her request, but granted her even more parenting time with W.S., ordering the parties
to follow a 50-50 shared visitation schedule. Despite this, the family court left all decision-
making authority for W.S. with the Grandparents.

Once the family court granted Tryston S. 50-50 visitation, she had the ability to take
a more active role in W.S.’s life. Tryston S. became more involved in W.S.’s education,
retained a tutor to assist W.S. in her studies, supported W.S. in extracurricular activities,
and arranged her participation in summer camps. Nevertheless, Tryston S. and the
Grandparents have a strained relationship, and, unfortunately, W.S. is well aware of the
same. The guardian ad litem asserts that the parties’ poor relationship causes W.S.
significant stress.

After following the 50-50 visitation schedule for nearly a year, on January 12, 2024,
Tryston S. again moved the family court to terminate the Grandparents’ guardianship,
arguing that she was a fit parent and able to provide permanency and stability for her child.
Additionally, Tryston S. alleged that the Grandparents repeatedly made significant medical
decisions for W.S. without her advice, consent, approval, or knowledge, which the
Grandparents admitted. Tryston S. also asserted the Grandparents “persistently” denied her
access to the W.S.’s medical and educational records, and the Grandparents admitted doing
this, as well. Tryston S. further argued that the Grandparents disparaged her to W.S. and
that the Grandparents’ actions were detrimental to W.S. The Grandparents filed a response
opposing Tryston S.’s motion, but, in the alternative, filed a “motion for custodial allocation
as a psychological parent/motion for grandparent visitation.” The Grandparents also argued
that it would be in W.S.’s best interest for the guardianship and the current 50-50 visitation

4
The record is silent as to whether Garrett S. consented to the guardianship.

2
schedule to remain in effect. Further, the Grandparents alleged that W.S. wants to continue
following the 50-50 schedule, and as things are going well, change is unnecessary.

The family court ordered the guardian ad litem to investigate and to make a
recommendation as to whether the Grandparents’ guardianship should continue.5 Based
upon her investigation, the guardian ad litem recommended that the court terminate the
guardianship because it was no longer needed, and explained that it would be in W.S.’s best
interests to be returned to Tryston S.’s custody.6 In her report, the guardian ad litem
explained that Tryston S. had done “absolutely everything possible to remedy the
circumstances that led to the initial guardianship” and noted that she could not “think of
anything more that [Tryston S.] could do to put herself in a better position.” The guardian
ad litem further explained in her report that W.S. lacks consistency in her life because of
the guardianship and that terminating the same would give her the needed consistency.
However, the guardian ad litem recommended W.S. gradually transition to living full-time
with Tryston S. by first increasing Tryston S.’s visitation time from 50-50 to 70-30 for a
period of time. Importantly, the guardian ad litem also recommended that the Grandparents
receive regular visitation with W.S. Further, the guardian ad litem recommended that, if
Tryston S. were unable to provide care for W.S. for any extended period of time, the
Grandparents be permitted to care for her.

At the hearing on Tryston S.’s motion to terminate guardianship, the family court
heard testimony from a number of witnesses, including the guardian ad litem and Kim
Mullaney, W.S.’s private counselor. The guardian ad litem testified regarding her
investigation, report, and recommendation. The guardian ad litem reiterated her concerns
about the lack of consistency in W.S.’s life, noting that in 2023, a doctor expressed similar
concerns. Further, as stated in her report, the guardian ad litem explained that this lack of
consistency resulted from Tryston S. and the Grandparents providing W.S. different
homelife structures and setting different expectations for her.7 Moreover, the guardian ad
litem testified about her concerns over W.S. being tardy to school twenty-three times during
the 2023-2024 school year, all but three of which occurred while W.S. was in the

5
The family court appointed the guardian ad litem several years before the 2024
action. Therefore, at the time of her 2024 appointment, the guardian ad litem was already
familiar with the child, the parties, and the issues of the case.
6
We note that none of the parties take issue with the quality or thoroughness of the
guardian ad litem’s investigation.
7
This doctor performed a neuropsychological evaluation on W.S. and
recommended that W.S. sleep in her own room while at both homes to increase consistency
between the households. Notably, Tryston S. has followed the doctor’s recommendation;
the Grandparents have not.

3
Grandparents’ care.8 The guardian ad litem further explained that the poor relationship
between Tryston S. and the Grandparents causes W.S. significant stress, which both W.S.’s
teacher and Kim Mullaney noted when she spoke to them, and that terminating the
guardianship would be in W.S.’s best interest because it would ensure more consistency in
W.S.’s life and reduce the stress caused by her exposure to this discord.

However, in both her report and in her testimony, the guardian ad litem advised the
court that W.S., then nearly ten years old, wanted to continue following the 50-50 schedule
for various reasons, such as she was used to it and because of her unfounded fear that if
she lived with Tryston S. full-time, she would never see Grandmother again. Also, the
guardian ad litem explained that W.S. expressed concerns over not being allowed to take
certain toys with her from the Grandparents’ house or to continue taking riding lessons.9
W.S. did not explain to the guardian ad litem why she believed such things. However, as
stated in the guardian ad litem’s report, when the guardian ad litem suggested to W.S. that
Tryston S. could take her to riding lessons, W.S. replied that Tryston S. could not because
the lessons took place on “private property.” Again, W.S. provided no explanation for this
belief. The guardian ad litem further advised that W.S. wanted the 50-50 schedule to remain
in effect because she did not want to change schools, and the possibility of having to change
schools appeared to cause W.S. anxiety.10

Conversely, Kim Mullaney provided a letter to the court opposing the termination
of the guardianship, and testified to that effect at the hearing.11 In both her testimony and
in her letter, Ms. Mullaney opined that terminating the guardianship could harm W.S.,
amplify her abandonment issues, and increase her separation anxiety with respect to the
Grandmother. However, Ms. Mullaney did not state that terminating the guardianship
would harm W.S. During her testimony, Ms. Mullaney, however, conceded that if the court
were to terminate the guardianship, it would be better for W.S. to slowly and gradually
transition to living with Tryston S., such as by first following a 60-40 or 70-30 visitation
schedule for a period of time.

8
The Grandparents contend that they usually have W.S. at school on time, just not
at her classroom. They claim that W.S. is tardy because she often gets upset at drop-off
over not wanting to leave the Grandmother, and the Grandmother does not want to leave
W.S. while she is upset.

The parties appear to agree that the child’s fears are unfounded; however, it is
9

unknown why the child harbors these beliefs.
10
The record reflects that the Grandparents pay for W.S. to attend a private school.
11
Ms. Mullaney testified that the Grandmother first brought W.S. to her for
counseling services in 2022.

4
By order entered August 8, 2024, the family court found that Tryston S. proved a
material change in circumstances had occurred, but that she failed to prove that termination
of the guardianship was in W.S.’s best interest. As such, the family court denied Tryston
S.’s motion to terminate the guardianship and ordered the parties to continue following the
50-50 visitation schedule. However, the family court granted Tryston S. shared decision-
making authority with the Grandparents. The court summarily dismissed the Grandparents’
motion for custodial allocation as a psychological parent/motion for grandparent visitation
as moot. It is from this order that Tryston S. now appeals.

We apply the following standard of review when reviewing an order of a family
court:
When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review the
findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate review of family court
orders).

“Questions relating to . . . the maintenance and 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.,
Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). An appellate court may reverse
for abuse of discretion if “a material factor deserving significant weight is ignored, when
an improper factor is relied upon, or when all proper and no improper factors are assessed
but the [lower court] makes a serious mistake in weighing them.” Gentry v. Mangum, 195
W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). Thus, an appellate court “will not
simply rubber stamp the trial court’s decision when reviewing for an abuse of discretion[.]”
State v. Hedrick, 204 W. Va. 547, 553, 514 S.E.2d 397, 403 (1999). With these standards
in mind, we now consider the issues on appeal.

At the outset of our discussion, we note that the parties do not dispute Tryston S.’s
fitness as a parent. On appeal, Tryston S. argues that the family court erred by finding that
she failed to prove terminating the guardianship was in the best interest of W.S. and by
failing to afford her “special weight” as a fit parent in reaching its decision. She contends
that by doing so, the family court ignored her fundamental right to rear and to make
decisions for her child, pursuant to Troxel v. Granville, 530 U.S. 57 (2000), In re K.H., 235
W. Va. 254, 773 S.E.2d 20 (2015), and In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138
(2005). We agree.

5
We begin our analysis by examining the law controlling the guardianship of minors,
which, in West Virginia, is statutory. See Syl. Pt. 5, in part, In re Antonio R.A., 228 W. Va.
380, 719 S.E.2d 850 (2011) (“A family or circuit court’s authority to appoint a suitable
person as a guardian for a minor . . . is derived from West Virginia Code § 44-10-3[.]”).
West Virginia Code § 44-10-3 states, in part, the following:
(i) The court, the guardian or the minor may revoke or terminate the
guardianship appointment when . . . (4) A petition is filed by . . . a parent . . .
stating that the minor is no longer in need of the assistance or protection of a
guardian due to changed circumstances and the termination of the
guardianship would be in the minor’s best interest.
(j) For a petition to revoke or terminate a guardianship filed by a parent, the
burden of proof is on the moving party to show by a preponderance of the
evidence that there has been a material change of circumstances and that a
revocation or termination is in the child’s best interest . . . .
W. Va. Code § 44-10-3(i)(4)-(j) (2013). Therefore, to prevail below on her motion to
terminate the Grandparents’ guardianship, Tryston S. was required to prove two elements
by a preponderance of the evidence: that there had been a material change of circumstances,
and that terminating the guardianship was in W.S.’s best interest.12

As to the first element, the family court found that Tryston S. proved a material
change of circumstances, and the Grandparents did not appeal any portion of the family
court’s order; therefore, it is unnecessary for this Court to address that issue on appeal. We
note that the Grandparents offer a cursory argument that Tryston S. failed to prove a
material change in circumstances below, but they fail to support their argument with
citations to the record. See W. Va. R. App. P. Rule 10(c)(7) (“The Intermediate Court . . .
may disregard errors that are not adequately supported by specific references to the record
on appeal.”).

Regarding the second element, the “best interest of the child,” the SCAWV has
explained that,
[f]or a century-and-a-half, the courts of this State have been guided by the
fundamental rule that, when addressing custody issues involving children,
the best interests of the child trump all other considerations. It is the polar
star that steers all discretion. As we said in 1925, “we must not lose sight of

12
The SCAWV has recognized that “‘[p]reponderance of the evidence’ is defined
as that degree of evidence that is of greater weight or more convincing than the evidence
which is offered in opposition to it; that is, evidence which as a whole shows the fact to be
proved to be more probable than not.” Frazier v. Gaither, 248 W. Va. 420, 425, 888 S.E.2d
920, 925 (2023) (quoting Suhr v. Okorn, 83 S.W.3d 119, 121 (Mo. Ct. App. 2002)).

6
the rule that obtains in most jurisdictions at the present day, that the welfare
of the child is to be regarded more than the technical legal rights of the
parent.” Connor v. Harris, 100 W.Va. 313, 317, 130 S.E. 281, 283 (1925).
Brooke B. v. Ray, 230 W. Va. 355, 361, 738 S.E.2d 21, 27 (2013) (footnote omitted).
Therefore, to determine the “best interest of a child,” we must look at the child’s welfare.
The West Virginia Legislature has instructed that the best interests of the child may be
facilitated by ensuring (1) stability, (2) collaborative parenting and agreement about the
child’s upbringing, (3) continuity of existing parent-child attachments, (4) meaningful
contact between a child and each parent, (5) caretaking and parenting relationships by
adults who love the child, know how to provide for the child’s needs, and place a high
priority on doing so, (6) security from exposure to physical or emotional harm, (7)
expeditious, predictable decision-making and avoidance of prolonged uncertainty
respecting arrangements for the child’s care and control, and (8) meaningful contact
between a child and siblings, including half-siblings. See W. Va. Code § 48-9-102(a)
(2022). See also In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005).

However, “there is a presumption that fit parents act in the best interests of their
children.” Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 755, 591 S.E.2d 308, 313 (2003).
Furthermore, “[w]hile courts always look to the best interests of the child in controversies
concerning . . . custody, such custody should not be denied to a parent merely because some
other person might possibly furnish the child a better home or better care.” Syl. Pt. 4,
Terrence E. v. Christopher R., 243 W. Va. 202, 842 S.E.2d 755 (2020) (quoting Syl. Pt. 3,
Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975)). See also In re Haylea G., 231
W. Va. 494, 745 S.E.2d 532 (2013).

With this legal framework in mind, we first turn to Tryston S.’s argument that she
met her statutory burden of proving that terminating the Grandparents’ guardianship was
in the best interest of W.S. In its final order on appeal, the family court correctly
acknowledged that “parents have substantial rights,” but explained that W.S. “is entitled to
stability in her life,” and “finding the right balance between [Tryston S.’s] right to parent
her child and the child’s best interests is a crucial task.” However, the order reflects that
the court, in large part, based its decision on Ms. Mullaney’s opinion, stating that
“termination of the guardianship could irreparably harm the child and amplify her
abandonment issues and exacerbate her separation anxiety, from [the Grandmother]”
(emphasis added).13 We find it significant that the family court made no finding that
terminating the guardianship would cause any such harm. Further, the court failed to
explain what this irreparable harm would be or why the harm would be irreparable. Thus,
the court based its decision on nothing more than a vague, conclusory statement. We

13
The SCAWV has consistently held that “[i]t is a paramount principle of
jurisprudence that a court speaks only through its orders.” Legg v. Felinton, 219 W. Va.
478, 483, 637 S.E.2d 576, 581 (2006) (citations omitted).

7
acknowledge that the parties have not suggested that W.S. cease counseling with Ms.
Mullaney. Moreover, as to tardiness, the record demonstrates that Ms. Mullaney and
W.S.’s school counselor were unaware of W.S.’s tardiness issues until the guardian ad
litem asked them about W.S.’s twenty-three tardies. Yet, despite the guardian ad litem’s
experience with the case and the parties and her unquestionably thorough investigation, the
court rejected her recommendation without explanation.

Further, the record reflects that the family court based its decision, at least in part,
on the fact that W.S. wanted to continue to follow the 50-50 visitation schedule. This is
problematic because, as the guardian ad litem explained, W.S. based her position largely
on her unfounded fears of never seeing Grandmother again and her concerns about having
access to her toys, riding lessons, and her school preference. However, W.S.’s stated
concerns remind us that W.S. was just under ten years old when she expressed her
preference and not yet mature enough to make such important decisions for herself. See W.
Va. Code § 48-9-402.

However, the family court did not consider the possibility that it could be in W.S.’s
best interest to be returned to Tryston S., an undisputably fit parent, and to fully share in
the new life Tryston S. has built, including having the opportunity to develop a relationship
with her new half-sibling. Developing relationships with siblings, including half-siblings,
is another factor considered to facilitate a child’s best interest. See W. Va. Code § 48-9-
102(a)(8). W.S. has had the opportunity to develop relationships with her half-siblings on
her father’s side of the family, while residing with the Grandparents.14 Also, the court did
not consider whether the guardianship was still necessary, in light of the material changes
in circumstances it specifically found that Tryston S. proved. The circumstances that led to
the guardianship in 2017 no longer exist. Moreover, Tryston S. has consistently maintained
that she favors W.S. continuing to have regular visitation with the Grandparents. At no
time has Tryston S. indicated a desire to cut the Grandparents out of W.S.’s life.
Accordingly, we find that the family court abused its discretion in finding that Tryston S.
failed to prove that terminating the Grandparents’ guardianship would be in the best interest
of the child.

We further find that the family court failed to afford Tryston S. the requisite special
weight as W.S.’s mother in rendering its decision to continue the guardianship. The United
States Supreme Court stated the following in Troxel v. Granville, 530 U.S. 57 (2000):
The interest of parents in the care, custody, and control of their children—is
perhaps the oldest of the fundamental liberty interests recognized by this
Court . . . The “liberty” protected by the Due Process Clause includes the
right of parents to establish a home and bring up children and to control the
education of their own . . . The liberty of parents and guardians includes the
14
The guardian ad litem noted in her report that both the Grandparents and W.S.
mentioned W.S.’s two half-siblings visiting while W.S. was at the Grandparents’ home.

8
right to direct the upbringing and education of children under their control .
. . The child is not the mere creature of the State; those who nurture him and
direct his destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations . . . It is cardinal with us that the
custody, care, and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state
can neither supply nor hinder.
Id. at 65-66 (cleaned up). Similarly, the Supreme Court of Appeals of West Virginia
(“SCAWV”) has held that,
Nothing is more sacred or scrupulously safeguarded as a parent’s right to the
custody of his/her child. In the law concerning custody of minor children, no
rule is more firmly established that 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 and guaranteed by the Due
Process Clauses of the West Virginia and United States Constitutions.
In re Clifford K., 217 W. Va. 625, 644, 619 S.E.2d 138, 157 (2005). See also Syl. Pt. 1, In
re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).

Nevertheless, the SCAWV has also made clear that “[s]uperior to any rights of
parents to the custody of their own children, however, is the overriding consideration of
the child’s best interests. Thus, the natural right of parents to the custody of their children
is always tempered with the courts’ overriding concern for the well-being of the children
involved.” Kessel v. Leavitt, 204 W. Va. 95, 174, 511 S.E.2d 720, 799 (1998). See also Syl.
Pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have
substantial rights that must be protected, the primary goal . . . in all family law matters . . .
must be the health and welfare of the children.”); Syl. Pt. 5, Carter v. Carter, 196 W. Va.
239, 470 S.E.2d 193 (1996) (“In visitation as well as custody matters, we have traditionally
held paramount the best interests of the child.”); Syl. Pt. 7, In re Brian D., 194 W. Va. 623,
461 S.E.2d 129 (1995) (“Cases involving children must be decided not just in the context
of competing sets of adults’ rights, but also with a regard for the rights of the
child(ren).”); Green v. Campbell, 35 W. Va. 698, 702, 14 S.E. 212, 214 (1891) (“[T]he
welfare of the infant is the polar star by which the court is to be guided in the exercise of
its discretion; and the court . . . is not bound by any mere legal right of parent or guardian,
but is to give it due weight as a claim founded on human nature, and generally equitable
and just.”).

As the SCAWV recognized in In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015), we
understand that striking a balance between a biological parent’s constitutional rights and a
child’s best interests is challenging. Similar to the case before us, In re K.H. also involved
a grandparent’s guardianship of a minor child. There, the family court granted the maternal
grandmother guardianship of her one-year-old granddaughter soon after the death of the

9
child’s mother, grandmother’s own daughter. The child’s father had first seen the child only
about a month before the mother died, but he appeared at the guardianship hearing and did
not object to the court appointing the grandmother the child’s guardian. In the years that
followed, the father sought and obtained regular parenting time with the child, which the
court also gradually increased. Eventually, the father filed a petition to terminate the
guardianship, which the grandmother opposed, and the grandmother moved the court to
designate her the child’s psychological parent.

As in the instant matter, in In re: K.H., the family court appointed the child a
guardian ad litem to investigate and to make a recommendation as to whether terminating
the guardianship would be in the child’s best interest. The guardian ad litem reported to the
court that the father could provide a stable environment for the child, and, as such, the child
no longer needed the guardianship and that granting the father custody would be in the best
interest of the child. Based upon the evidence presented, including a psychologist’s
testimony that the grandmother and child shared a significant bond, and the child thought
of the grandmother as her mother, the family court terminated grandmother’s guardianship
and denied the grandmother’s motion to be designated the child’s psychological parent.
The circuit court affirmed the family court’s rulings.

On appeal, the SCAWV affirmed the family court’s decision, concluding that the
family court had properly terminated the guardianship, noting, “[t]he court . . . recognized
the immeasurable importance of the child’s best interests” and “[t]he [family] court
explained that the ‘record clearly reflects that throughout the years Father has continually
stepped up to care for his child and has willingly assumed additional and substantial
parental responsibilities as well as all caretaking functions for his minor daughter.’” 235
W. Va. at 258, 773 S.E.2d at 24. The SCAWV further found that the family court
satisfactorily considered K.H.’s best interest, the change in circumstances (the father
increasing his level of participation in the child’s life over the years), and the advice and
conclusions of the guardian ad litem in reaching its decision.

Yet, the In re: K.H. Court found that the family court erred in denying the
grandmother’s motion to be designated the child’s psychological parent and remanded the
matter for the entry of an order “specifying a liberal visitation schedule to permit significant
and meaningful opportunity for the grandmother to interact with K.H.,” noting that
“[t]ransitions in the life of a child should be fashioned in a manner which minimizes the
trauma to the child.” Id. at 266, 773 S.E.2d at 32.

Notably, in In re K.H., the SCAWV discussed Troxel in detail, and required that
courts give “special weight” to a parent’s assessment of his or her child’s best interests,
stating as follows:
In Troxel, the United States Supreme Court held that awarding visitation to
a non-parent, over the objections of a parent, is subject to constitutional

10
limitations. The Court in Troxel invalidated a Washington statute authorizing
“any person” to petition for visitation rights “at any time[,]” and described
the statute as “breathtakingly broad.” [530 U.S.] at 67. This Court has
examined the Troxel case, noting that it “instructs that a judicial
determination regarding whether grandparent visitation rights are
appropriate may not be premised solely on the best interests of the child
analysis.” Cathy L.M. v. Mark Brent R., 217 W. Va. 319, 327–28, 617 S.E.2d
866, 874–75 (2005) (emphasis supplied). Instead, this Court emphasized
in Cathy L.M. that the evaluating court “must also consider and give
significant weight to the parents’ preference, thus precluding a court from
intervening in a fit parent’s decision making on a best interests
basis.” Id. That is the gravamen of the Troxel decision; the true failing of the
Washington statute in Troxel was “not that the [trial court] intervened, but
that when it did so, it gave no special weight at all to [the parent’s]
determination of her daughters’ best interests.” 530 U.S. at 69.
Id. at 263-64, 773 S.E.2d at 29-30. Moreover, the SCAWV has discussed the meaning of
the phrase “special weight” used in Troxel:

Although Troxel does not define “special weight,” state courts attempting to
interpret and apply Troxel have reasoned that “special weight” indicates
considerable deference. In In re M.W., 292 P.3d 1158 (Colo.App.2012), for
instance, the Colorado Court of Appeals explained that “[g]iving special
weight means that the presumption favoring the parent’s decision can be
rebutted only by clear and convincing evidence that granting parental
responsibilities to the nonparent is in the child’s best interests.” Id. at 1161.

In re Visitation of A.P., 231 W. Va. 38, 42 n.7, 743 S.E.2d 346, 350 n.7 (2013).

The SCAWV also considered the balance between a parent’s fundamental rights and
the best interest of the child in Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322
(1989), which involved a fit biological father seeking custody of his daughter following
the death of the child’s mother. In Honaker, the child had lived with her mother, stepfather,
and half-sibling from an early age until the mother’s death, at which time the stepfather
was appointed her guardian pursuant to the mother’s will. The father sought to terminate
the guardianship and to be granted custody of his daughter, arguing that “an unoffending
natural parent should be entitled to custody of his or her child if such parent has not
abandoned such child nor has in any manner been proven unfit.” Id. at 450, 388 S.E.2d at
324. The circuit court agreed, terminated the guardianship, and granted custody of the child
to the father. On appeal, the Honaker Court affirmed the decision of the circuit court,
acknowledging that the child’s best interest “is of immeasurable importance” but
recognized the right of biological parents to raise their own children. Id. at 451, 388 S.E.2d
at 324. Importantly, the Court required that the child gradually transition to residing full-

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time with the father because the child had lived with the stepfather and half-sibling for so
long.

In re K.H. and the instant matter share a number of similarities, such as long-term
grandparent guardianships and fit parents who, over time, increased their parenting time
with their children, continued to step up to provide more care for their children, and
assumed additional parenting responsibilities, as permitted by courts. However, unlike
Tryston S., the father in In re K.H. did not even know the child when the guardianship
began, but within a year he sought and received parenting time with the child, which only
increased over the years. Ultimately, the court found that the guardianship was no longer
needed because the father could provide the child a stable life. Accordingly, the court
terminated the guardianship and granted the father custody of the child.

In this matter, years ago, Tryston S. recognized that given her struggle with
addiction and her circumstances, it was in the best interest of W.S. to be with the
Grandparents and consented to their guardianship appointment. However, as Tryston S.
improved her life, she immediately began trying to regain custody of her child. Even
though the court denied her requests, each time it granted her more parenting time with
W.S., to the point where W.S. now lives, and has for over a year lived, with Tryston S. half
of the time. The fact that the family court has entrusted Tryston S. with the care of her child
fifty percent of the time demonstrates that the court perceives no danger in the child
residing in Tryston S.’s home. Further, as in In re K.H., in the order on appeal, the family
court explicitly found that Tryston S. was a stable caretaker for W.S.

Based upon our review, we find that the family court abused its discretion by
finding that Tryston S. failed to prove that terminating the guardianship would be in the
best interest of W.S. and by failing to afford Tryston S. the special weight she was due as
W.S.’s mother in rendering its decision. Therefore, we find that the family court erred by
denying Tryston S.’s motion to terminate the Grandparents’ guardianship. Accordingly, we
reverse the August 8, 2024, order of the family court and remand this case for the entry of
an order consistent with this decision.

Reversed and Remanded.

ISSUED: June 11, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

GREEAR, J., concurring:

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I concur with the majority’s opinion. I write separately to highlight the importance
of the acknowledgement and consideration of the fundamental rights of fit parents, like
Tryston S., to the custody of their minor children. The Supreme Court of Appeals of West
Virginia (“SCAWV”) has long recognized the fundamental rights of fit parents and has
adopted the “presumption that fit parents act in the best interests of their children.” Syl. Pt.
4, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003). In its recent
decision, In re I.S., No. 23-332, 2024 WL 4788059, at *7–8 (W. Va. Nov. 14, 2024)
(memorandum decision), the SCAWV reasoned that

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
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).

* * *

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.

Syl. Pt. 3, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308
(2003). Consequently, “there is a presumption that fit parents act in the best
interests of their children.” Id. at 751, 591 S.E.2d at 309, syl. pt. 4. Moreover,

[in] light of the fundamental liberty interest that parents have
in the care of their children, governmental intrusion into the
family is warranted only in exceptional circumstances. The
statutory bases for court interference with the parents’ right to
custody and control of their children are limited and specific.
See e.g., W.Va.Code § 48-9-206 [(2022)] (custody and
visitation rights between parents in a divorce); W.Va.Code §
48-10-301 [(2006)] (grandparents’ visitation); W.Va.Code §
[49-4-705 (2024)] (taking a juvenile offender into custody
before adjudication in certain enumerated circumstances);

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W.Va.Code § [49-4-602 (2015)] (taking an allegedly neglected
and/or abused child into temporary custody); W.Va.Code §
[61-8D-10 (2016)] (care of child upon parent's conviction for
contributing to the child's delinquency) and W.Va.Code § [49-
4-604(c)(6) (2020)] (termination of parental rights when child
has been adjudicated neglected and/or abused).

Lindsie D.L., 214 W. Va. at 755, n.5, 591 S.E.2d at 313, n.5.

Here, in the instant case, there was no presumption made by the family court that
Tryston S., as the fit parent of W.S., would act in W.S.’s best interest. Further, the court
did not afford any weight to the fact that Tryston S. was the fit parent of W.S., let alone
“special weight” required by the United States Supreme Court in Troxel v. Granville, 530
U.S. 57, 65-67 (2000). While, like the family court below, I acknowledge the difficulty in
tempering the fundamental rights of fit parents and the best interests of the child, in the
underlying case, based upon a review of the record, the family court simply got it wrong.

As noted by the guardian ad litem, the person directed by the court to complete an
investigation of the necessity of the continuation of the guardianship, Tryston S. has done
“absolutely everything possible to remedy the circumstances that led to the initial
guardianship” and the guardian noted that she could not “think of anything more that
[Tryston S.] could do to put herself in a better position.” Notably, Tryston S. has become
more involved in W.S.’s education, retained a tutor for W.S., supported W.S. in her
participation of extracurricular activities, and arranged for W.S. to attend a summer camp.
Moreover, the guardian reported that she had concerns about the lack of consistency in
W.S.’s life (citing different homelife scenarios with differing expectations of W.S. at her
two residences), and referred to a 2023 report wherein a doctor expressed similar concerns.
However, rather than rely upon the findings of the appointed guardian ad litem, the family
court instead relied upon the vague assertions of a counselor, who did not address the issue
of W.S.’s need for consistency between her home with Tryston S. and her home with her
grandparents – an issue of great importance to the best interests of W.S.

I applaud the willingness of the grandparents of W.S. to be her guardians and offer
her a stable and loving home. Likewise, I applaud the efforts of parents like Tryston S. who
change their lives and circumstances for the betterment of themselves and their children.
The precedent of this Court and the United States Supreme Court requires that Tryston S.
be given the presumption that fit parents act in the best interest of their children and the
fact that she is a fit parent be given special weight in determination of custody. The court
below gave no such presumption and considerations to Tryston S., despite finding no issue
with Tryston S.’s parental fitness by allowing her 50-50 custody of W.S.

For the foregoing reasons, I respectfully concur.

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