665 S.E.2d 300
The appellants herein and petitioners below, Gala P. (hereinafter “Gala”) (See footnote 1) and
Brent P. (hereinafter “Brent”), appeal from an order entered July 9, 2007, by the Circuit
Court of Cabell County. By that order, the circuit court denied the petitioners' request for
guardianship of their minor grandchild, Abbigail Faye B. (hereinafter “Abbigail”), and
returned the child's custody to her biological parents, Autumn S. B. (hereinafter “Autumn”)
and Josh B. (hereinafter “Josh”). On appeal to this Court, Gala and Brent contend that the
circuit court erred by concluding that they had failed to meet their burden of proving that
(1) Abbigail was abused or neglected and that (2) Autumn was not capable of being a fit
parent. The appellants argue further that the circuit court's order denying their request for
Abbigail's guardianship is contrary to her welfare and best interests. Upon a review of the
parties' arguments, the pertinent authorities, and the record designated for appellate
consideration, we affirm the decision of the Cabell County Circuit Court.
The circuit court then held hearings on May 7, 2007; May 25, 2007; and June
8, 2007. (See footnote 9) By order entered July 9, 2007, the circuit court denied Gala and Brent's petition
for guardianship of Abbigail
find[ing] that the Petitioners [Gala and Brent] have failed to
meet their burden in this matter to show that Abbigail Faye B[.]
is an abused or neglected child as defined by the West Virginia
Code, nor that Autumn S[.], the natural mother of Abbigail, is
not capable of being a fit parent.
The court then placed Abbigail with her parents, Autumn and Josh, (See footnote 10) through the use of a
transitional period. Gala and Brent were awarded visitation with Abbigail. From this
ruling, Gala and Brent appeal to this Court.
[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.
Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded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). Moreover, to the extent that the circuit court's decision involved the
interpretation and application of the guardianship statute, W. Va. Code § 44-10-3, to the
facts of this case, our review is plenary. “Where the issue on an appeal from the circuit
court is clearly a question of law or involving an interpretation of a statute, we apply a de
novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West
Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an
administrative rule or regulation presents a purely legal question subject to de novo review.”). Guided by these standards, we proceed to consider the errors assigned by the
parties.
This statute provides:
(a) The circuit court or family court of the county in
which the minor resides, or if the minor is a nonresident of the
state, the county in which the minor has an estate, may appoint
as the minor's guardian a suitable person. The father or mother
shall receive priority. However, in every case, the competency
and fitness of the proposed guardian and the welfare and best
interests of the minor shall be given precedence by the court
when appointing the guardian.
(b) Within five days of the filing of a petition for the
appointment of a guardian, the circuit clerk shall notify the
court. The court shall hear the petition for the appointment of
a guardian within ten days after the petition is filed.
(c) The court, the guardian or the minor may revoke or
terminate the guardianship appointment when:
(1) The minor reaches the age of eighteen and executes
a release stating that the guardian estate was properly
administered and that the minor has received the assets of the
estate from the guardian;
(2) The guardian or the minor dies;
(3) The guardian petitions the court to resign and the
court enters an order approving the resignation; or
(4) A petition is filed by the guardian, the minor, an
interested person or upon the motion of the court stating that
the minor is no longer in need of the assistance or protection of
a guardian.
(d) A guardianship may not be terminated by the court
if there are any assets in the estate due and payable to the
minor: Provided, That another guardian may be appointed upon
the resignation of a guardian whenever there are assets in the
estate due and payable to the minor.
(e) Other than court orders and case indexes, all other
records of a guardian proceeding involving a minor are
confidential and shall not be disclosed to anyone who is not a
party to the proceeding, counsel of record for the proceeding or
presiding over the proceeding absent a court order permitting
examination of such records.
Id.
In order to assess the correctness of the circuit court's order denying Gala and
Brent's petition for guardianship, we must first consider the language of the statute under
which Gala and Brent filed their petition and upon which the lower tribunal based its ruling.
“The primary object in construing a statute is to ascertain and give effect to the intent of the
Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219
S.E.2d 361 (1975). After considering the legislative intent, we next must examine the
precise words used by the Legislature. “A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877,
65 S.E.2d 488 (1951). See also DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622,
632 (1999) (“Where the language of a statutory provision is plain, its terms should be
applied as written and not construed.” (citations omitted)); Syl. pt. 5, State v. General
Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a
statute is clear and unambiguous and the legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of the courts not to construe but to
apply the statute.”). But see Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454
(1992) (“A statute that is ambiguous must be construed before it can be applied.”); Syl. pt.
1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983) (“Judicial
interpretation of a statute is warranted only if the statute is ambiguous and the initial step
in such interpretative inquiry is to ascertain the legislative intent.”).
The operative language of W. Va. Code § 44-10-3 that is at issue in this case
is set forth in subsection (a):
The circuit court or family court of the county in which the minor resides, or if the minor is a nonresident of the state, the county in which the minor has an estate, may appoint as the minor's guardian a suitable person. The father or mother shall receive priority. However, in every case, the competency and fitness of the proposed guardian and the welfare and best interests of the minor shall be given precedence by the court when appointing the guardian.
We have had few prior occasions upon which to consider this statutory language. Most of our prior opinions citing W. Va. Code § 44-10-3 have done so only in passing while discussing guardian-ward relationships in general rather than giving this statute in-depth treatment. See, e.g., Glen Falls Ins. Co. v. Smith, 217 W. Va. 213, 222, 617 S.E.2d 760, 769 (2005); In re Clifford K., 217 W. Va. 625, 637, 619 S.E.2d 138, 150 (2005); Idleman v. Groves, 89 W. Va. 91, 95-96, 108 S.E. 485, 486-87 (1921). See also Provident Life & Accident Ins. Co. v. Little, 88 F. Supp. 2d 604, 608 (S.D. W. Va.), aff'd, 238 F.3d 414 (4th Cir. 2000) (unpublished table decision).
However, in the case of In re Custody of Woolfolk, 170 W. Va. 238, 293 S.E.2d 316 (1982) (per curiam), this Court specifically did address the language of W. Va. Code § 44-10-3 in rendering its decision. Woolfolk involved the distinction between a minor child's two guardians: one who was appointed as “guardian of the [minor child's] property,” 170 W. Va. at 238, 293 S.E.2d at 316 (internal quotations and citation omitted), and one who, being the child's natural father, was appointed for “the sole purpose of . . . giv[ing] permission for medical treatment for said infant,” 170 W. Va. at 239, 293 S.E.2d at 317 (internal quotations and citation omitted). In determining the scope of each guardian's authority over the child, the Court considered W. Va. Code § 44-10-3 and held, in the sole Syllabus point, that
“[t]he county court of any county in which any minor
resides . . . may . . . appoint as guardian for him some suitable
person, preferring first the father or the mother; but in every
case the competency and fitness of the person, and the welfare
and best interest of the minor, shall govern the court in making
the selection.” W. Va. Code, 44-10-3 (1923).
170 W. Va. 238, 293 S.E.2d 316.
While directly on point with the facts and issues involved in the instant
appeal, this syllabus point is somewhat problematic, though, insofar as it was adopted in a
per curiam opinion. We previously have held that “[t]his Court will use signed opinions
when new points of law are announced and those points will be articulated through syllabus
points as required by our state constitution.” Syl. pt. 2, Walker v. Doe, 210 W. Va. 490, 558
S.E.2d 290 (2001). Thus, it is apparent that the announcement of a new point of law
regarding W. Va. Code § 44-10-3 should have occurred in a signed opinion and not in a per
curiam opinion such as was the case in Woolfolk. Comparing the version of W. Va. Code
§ 44-10-3 that was at issue in Woolfolk with the legislative amendments to that section that
have been adopted since our decision therein, we find the differences to be only slight and
not demonstrative of a substantial change in the fundamental meaning or intent of that
statute. We further conclude that the language employed in the current version of W. Va.
Code § 44-10-3 is plain and does not require further construction. Therefore, consistent
with our prior decision in Woolfolk but in keeping with the present statutory language, we
hold that, pursuant to the plain language of W. Va. Code § 44-10-3(a) (2006) (Supp. 2007),
the circuit court or family court of the county in which a minor resides may appoint a
suitable person to serve as the minor's guardian. In appointing a guardian, the court shall
give priority to the minor's mother or father. “However, in every case, the competency and
fitness of the proposed guardian and the welfare and best interests of the minor shall be
given precedence by the court when appointing the guardian.” W. Va. Code § 44-10-3(a).
(a) Removal by family court to circuit court of infant
guardianship cases involving child abuse and neglect. _ If
a family court learns that the basis, in whole or part, of a
petition for infant guardianship brought pursuant to W. Va.
Code § 44-10-3, is an allegation of child abuse and neglect as
defined in W. Va. Code § 49-1-3, then the family court before
whom the guardianship proceeding is pending shall remove the
case to the circuit court for hearing. Should the family court
learn of such allegations of child abuse and neglect during the
hearing, then the family court shall continue the hearing,
subject to an appropriate temporary guardianship order, and
remove the case to the circuit court for hearing to be conducted
within 10 days, for determination of all issues. At the circuit
court hearing, allegations of child abuse and neglect must be
proven by clear and convincing evidence. Immediately upon
removal, the circuit clerk shall forthwith send the removal
notice to the circuit court. Upon receipt of the removal notice,
the circuit court shall forthwith cause notice to be served in
accordance with W. Va. Code § 44-10-3 and to the Department
of Health and Human Resources who shall be served with
notice of the petition, including a copy of the petition, and of
the final hearing to be conducted before the circuit court. Such
notice to the Department of Health and Human Resources shall
constitute a report by the family and circuit courts pursuant to
W. Va. Code § 49-6A-2.
(b) Investigation of abuse and neglect. _ Upon
removal of the infant guardianship petition, the circuit court
may utilize the investigative and mandamus process and related
procedures set forth in Rule 3a of the Rules of Procedure for
Child Abuse and Neglect Proceedings if the court deems it
necessary or appropriate under the circumstances presented.
The circuit court shall allow the petitioner for infant
guardianship to appear as a co-petitioner on the petition filed
by the Department of Health and Human Services pursuant to
W. Va. Code § 49-6-1, et seq., or a prohibition against the
filing of a W. Va. Code § 49-6-1, et seq., petition by the
petitioner for infant guardianship should the Department show
cause why it will not file such a petition.
At issue herein is the language contained in subsection (a) requiring a family
court to remove guardianship cases alleging child abuse and neglect to the circuit court for
further proceedings. Reading this rule in conjunction with the language of W. Va. Code
§ 44-10-3, we find the directives to be clear. Accordingly, we hold that Rule 48a(a) of the
West Virginia Rules of Practice and Procedure for Family Court requires that if a family
court presiding over a petition for infant guardianship brought pursuant to W. Va. Code
§ 44-10-3 learns that the basis for the petition, in whole or in part, is an allegation of child
abuse and neglect as defined by W. Va. Code § 49-1-3, then the family court is required to
remove the petition to circuit court for a hearing thereon. Furthermore, “[a]t the circuit
court hearing, allegations of child abuse and neglect must be proven by clear and
convincing evidence.” West Virginia Rules of Practice and Procedure for Family Court
48a(a).
The initial guardianship petition filed pro se by Gala and Brent alleged as
grounds therefor that “Mother has ranaway [sic] & left the baby Abbigail with the materal
[sic] Grandparents. The where abouts [sic] of the mother are unknown.” After obtaining
counsel, Gala and Brent filed an amended petition for guardianship alleging, in part, that
since the child's birth, “the biological mother, Autumn S[.], has lived in the home [of Gala
and Brent] but on two occasions since the child's birth, she has left the home and
abandoned the child to the grandparents.” Both of these petitions were filed in the Circuit
Court of Cabell County, assigned to the Family Court of Cabell County, and, following a
hearing thereon, removed to the circuit court based upon the allegations of abuse and
neglect contained therein. Despite these allegations in the lower tribunals, on appeal to this
Court, Gala and Brent vehemently argue that Abbigail was not an abused and neglected
child while she was in their care, and that, consequently, the circuit court erred by applying
the clear and convincing burden of proof. Their argument fails to appreciate, however, that
the issue is not whether Abbigail was abused and neglected while she was in their care, but
rather whether she was abused and neglected while she was in Autumn's care. It goes
without saying that persons accused of abusing and neglecting a child would have no
business petitioning a court to be that child's guardian. Rather, the operative inquiry is
whether the person from whom the petitioners are attempting to wrest the child's
guardianship has committed such malfeasance; here, because Gala and Brent are seeking
to obtain guardianship by divesting Autumn of the same, the question is whether Abbigail
suffered abuse and neglect while in Autumn's care. Therefore, we must determine whether
the allegations contained in Gala and Brent's amended petition for guardianship rose to the
level of allegations of abuse and neglect such that the circuit court was required to review
the evidence under the clear and convincing standard.
The phrase used in Rule 48a(a), “child abuse and neglect,” is defined by
W. Va. Code § 49-1-3(d) (2006) (Supp. 2006) (See footnote 12) as “physical injury, mental or emotional
injury, sexual abuse, sexual exploitation, sale or attempted sale or negligent treatment or
maltreatment of a child by a parent, guardian or custodian who is responsible for the child's
welfare, under circumstances which harm or threaten the health and welfare of the child.”
Here, Gala and Brent alleged in both their initial and amended petitions for guardianship
that Autumn had abandoned her child. Either of these allegations, apart from several of the
other allegations contained in the petitions, is suggestive of “negligent treatment . . . of a
child by a parent . . . who is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child,” W. Va. Code § 49-1-3(d), because an
infant who was either three weeks old, at the time Autumn went to Paducah, Kentucky, or
who was six months old, at the time Autumn left her parents' home, was incapable of caring
for him/herself. (See footnote 13) In light of these allegations, the family court correctly removed the
petition to the circuit court for further proceedings. Furthermore, because the guardianship
petition alleged that the subject child had been abused and neglected, the circuit court was
obligated to consider the evidence presented in accordance with the standard of proof for
abuse and neglect cases generally, i.e., clear and convincing evidence, and it correctly did
so. See W. Va. R. Prac. & Proc. for Fam. Ct. 48a(a). Consequently, we do not find that the
circuit court erred in this regard.
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.
Accord Syl., State ex rel. Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d 798 (1969). We also have appreciated that such rights are not just constructs of the courts, but that they are basic liberties secured by the state and federal constitutions:
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 facts of this case, like many of our domestic law cases, suggest a familial
situation in which a child is fortunate to have many people who love her and who want to
take care of her. While a child may have many different types of caretakers, only a select
few may be awarded his/her guardianship. We appreciate the concerns of Gala and Brent
regarding their perceptions of Autumn's and Josh's abilities to parent their child.
Nevertheless, the relief they seek is not a remedy that we bestow lightly. Although there
are circumstances in which parents should not serve as the guardians for their child(ren),
the vast majority of those cases are handled through the child abuse and neglect process to
ensure that parents' rights are not unnecessarily trammeled.
In the case sub judice, the circuit court heard testimony presented both by
Gala and Brent and by Autumn and Josh, and was charged with assessing the credibility of
the various witnesses. Having reviewed the transcripts of those hearings, we agree with the
circuit court's assessment of the evidence and its ultimate conclusion that Autumn is
capable of being a fit parent. The standard by which we typically determine parental fitness
is that set forth in Whiteman v. Robinson, which directs a court to consider the following
factors: “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.” Syl., 145 W. Va. 685, 116 S.E.2d 691. Applying these factors
to the facts before us, there do not appear to be any allegations that Autumn is guilty of
misconduct or immorality, that she has waived her parental rights, or that she has
transferred, relinquished, or surrendered custody of Abbigail.
With respect to Gala and Brent's allegations that Autumn had twice abandoned her child, we do not find that those two instances are sufficient to divest Autumn of Abbigail's guardianship. On the first alleged occasion of abandonment, it appears that Autumn and Josh had planned a trip to a family reunion and that they had planned to take Abbigail with them. However, at the time of their departure, Abbigail was sick, and it appears that Autumn was encouraged to proceed with her travel plans while Gala and Brent cared for Abbigail. (See footnote 15) It goes without saying that leaving a child in another's care after having made such care arrangements does not constitute abandonment. The second alleged instance of abandonment apparently followed a heated discussion between Autumn and Gala and Brent. It seems that Autumn moved out of her parents' residence and left Abbigail in their care until she could establish a new residence for herself and her daughter. Although she left earlier in the day than was customary, Autumn was, at this point, still attending high school and left Abbigail at the home of Gala and Brent and in their care on a daily basis. Moreover, Gala and Brent filed their petition for guardianship the same day that Autumn moved out. By filing their guardianship petition, the animosities between the parties undoubtedly had escalated such that Autumn likely would not have been permitted to remove Abbigail from Gala and Brent's home. We do not find this isolated incident, under the particular facts of this case, to be sufficient upon which to base a change of a Abbigail's guardianship.
Lastly, we do not find that Autumn either neglected Abbigail or that she was
otherwise derelict in any other of her parental duties. Autumn was a new mother, and a
relatively young new mother at that. She lived in her parents' home, and her grandmother
lived next door. Autumn received substantial help from both her mother and her
grandmother in caring for her child, and both Autumn's mother and grandmother provided
a significant amount of care for Abbigail to allow Autumn to continue attending high
school. However, when questioned during the hearings in this matter, both Autumn and
Gala were critical of the other's participation in Abbigail's care: Autumn indicated that she
was made to feel inadequate when attending to Abbigail's needs while Gala suggested that
Autumn lacked initiative in caring for Abbigail. Absent further evidence to indicate that
Autumn is not a fit and competent person to serve as Abbigail's guardian, we find the
circuit court correctly accorded priority to Autumn, as Abbigail's mother, in determining
the minor's guardianship and affirm the circuit court's ruling in this regard.
As a final matter, we note that although Josh has participated in these
proceedings, the initial guardianship petition was filed against Autumn only. Thus, it
appears that the circuit court, in its final order, limited its ruling on parental fitness to apply
only to Autumn even though the amended guardianship petition also challenged Josh's
fitness as a parent. While the circuit court did not specifically state in its order that it also
found Josh to be a fit and competent person to serve as Abbigail's guardian, neither did it
find that Josh was unfit or incompetent to be the child's guardian. Nevertheless, Josh's
fitness may be inferred from the court's inclusion of Josh in its plan of reunification insofar
as it placed Abbigail with both of her parents. Upon a review of the record evidence, we
reiterate our conclusion that not only was Autumn a relatively young new mother, but also
Josh was a relatively young new father. We do not disagree that Josh's background is not
perfect. Allegations of Josh's traffic citations, underage drinking, and use of marijuana are
contained in the record. It also is apparent that there is much animosity between Gala and
Brent and Josh, and that this acrimony may have prevented Josh from visiting and
interacting with Abbigail while she resided in Gala and Brent's home. Be that as it may,
Josh's participation in these guardianship proceedings since their commencement indicates
a strong commitment on his part to participate in his child's life, and he has taken steps
towards that end by marrying his child's mother and establishing a home for his family.
While we are not unmindful of Josh's past transgressions, unless and until we are presented
with more solid evidence indicating that he is not fit or competent to serve as Abbigail's
guardian, we will accord him, as the child's father, the statutory preference mandated by
W. Va. Code § 44-10-3(a).