Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
_______________
No. 34751
______________
IN RE: RICHARD P. AND DEVON P.
_________________________________________________________
Appeal from the Circuit Court of Fayette County
The Honorable Paul M. Blake, Jr., Judge
Civil Action No. 08-CIGR-06
AFFIRMED
_________________________________________________________
Submitted: January 26, 2010
Modified Opinion Filed: July 9, 2010
Vickie L. Hylton, Esq.
Fayetteville, West Virginia
Attorney for Appellants
JUSTICE WORKMAN delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “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).
2. “This Court reviews the circuit court's final order and ultimate
disposition under an abuse of discretion standard.” Syl. Pt. 4, in part, Burgess v. Porterfield,
196 W. Va. 178, 179, 469 S.E.2d 114, 115 (1996).
3. “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).” Syl. Pt. 7, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300
(2008).
4. “In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which
the appeal has been taken.” Syl. Pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334
(1971).
5. “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).
6. At common law, a parent or legal guardian may transfer medical,
educational, and other legal decision-making authority for his or her child or ward to another
adult through the execution of a power of attorney. Such instruments are revocable and
automatically terminate upon death or incapacity of the principal.
7. Pursuant to the Caregiver's Consent Act, West Virginia Code § 49-11-1
to 10 (2010), an adult over the age of eighteen who is not legally related to a minor, but who
has resided continuously with the minor for the immediately preceding six month period,
may consent to health care and treatment on behalf of the minor, so long as that adult
possesses an adequate affidavit, as set forth in that Act.
Workman, Justice:
The Appellants, Cary P. and Jennifer P. (jointly “the Appellants”), reside
together in Fayette County, West Virginia, with Jennifer's biological children, Richard P. and
Devon P.
(See footnote 1) On July 11, 2008, the Appellants filed a “Petition for Appointment of a Legal
Guardian,” in the Family Court of Fayette County, West Virginia, seeking to appoint Cary
as the legal guardian of Richard and Devon. The Appellants do not wish to interfere with
Jennifer's parental rights but instead seek to allow Cary, as a legal guardian, to make
medical, educational and other legal decisions for the children when Jennifer is unavailable.
The family court, believing that the petition included an abuse and neglect
allegation, transferred the case to the Circuit Court of Fayette County. After conducting a
hearing and receiving further briefing from the Appellants, the circuit court denied the
petition, finding that the appointment of a guardian for the children was not warranted under
the circumstances presented in this case. On appeal, the Appellants waived oral argument,
and the case was submitted on the Appellants' brief.
(See footnote 2) Having considered that brief, the
record in the case, and all relevant legal material, this Court affirms the circuit court's Order.
I.
FACTS AND PROCEDURAL HISTORY
Richard P. and Devon P. are both minors under the age of eighteen; Richard
is approximately thirteen years old and Devon is approximately eleven years old. The boys'
biological father, Richard A., resides in Indiana. He and Jennifer separated when the boys
were very young, and he is no longer in their lives.
(See footnote 3) Jennifer, Cary and the children have
resided together since July 1999, at which time the boys were approximately three and one,
respectively. Both Jennifer and Cary have acted as parents to the boys. Jennifer has
consistently worked outside of the home, while Cary is a homemaker.
On July 11, 2008, the Appellants filed a “Petition for Appointment of a Legal
Guardian,” in the Family Court of Fayette County, seeking to have Cary appointed as the
boys' legal guardian.
(See footnote 4) Jennifer did not seek to relinquish any of her parental rights; rather,
the Appellants sought to add Cary as a legal guardian, thus giving her the ability to make
medical and educational decisions for the boys when Jennifer is unavailable. In the petition,
the Appellants assert that Cary is a psychological parent to the boys and that legalizing their
relationship would create stability for the children in the event that something happened to
Jennifer and would protect the children if Richard A. ever attempted to reassert his parental
rights.
(See footnote 5) They further contended that appointing Cary as a legal guardian would clarify,
before an emergency occurred, Jennifer's wishes for the care of her children.
(See footnote 6)
The family court, concluding that the petition included an abuse and neglect
allegation, transferred the petition, pursuant to Rule 48a of the West Virginia Rules of
Practice and Procedure for Family Court, to the Circuit Court of Fayette County, West
Virginia, on July 11, 2008. On July 18, 2008, the Circuit Court of Fayette County conducted
a hearing on the petition. In addition to the Appellants, Tom Steele, counsel for the
DHHR,
and Robin Holland, a Child Protective Services worker for the DHHR, were also present at
that hearing. Mr. Steele informed the court that the DHHR supported the Appellants'
petition and urged the Court to appoint Cary as the children's guardian. The circuit court,
however, questioned the need for a guardian given that Jennifer, the biological mother, was
alive, healthy and capable of caring for the children. The circuit court declined to rule on the
petition at that hearing, instead taking the matter under advisement.
Following the hearing, the Appellants submitted an additional brief, entitled
“Response to Court's Query,” further outlining their reasons for seeking the guardianship
despite Jennifer's current good health and well-being. In that brief, the Appellants pointed
out that Jennifer's employment with an ambulance service frequently renders her
unreachable for significant periods of time. Thus, they asserted, the children's best interests
would be served by giving Cary legal guardianship, so that she could make legal, medical
and other decisions for the children when Jennifer is unavailable. The Appellants provided
three examples of incidences that have occurred as a consequence of Cary not having the
legal ability to make medical decisions for the children, but which could have been avoided
had Cary been the children's legal guardian.
In the first incidence, Devon had fallen and injured his arm. Cary took him to
the emergency room at the Plateau Medical Center, but the hospital refused to treat him
because Cary could not legally consent to medical treatment. Jennifer was at work at the
time, transporting a patient to Morgantown, West Virginia. Consequently, Devon did not
receive treatment until a day later when Jennifer was back in Fayette County and could take
him to the emergency room herself.
In another instance, which occurred while Richard was hospitalized for
psychological treatment, Richard had been prescribed a medication that was causing him to
shake. The hospital called the family home seeking consent to remove him from the
medication. Jennifer was not home and Cary gave consent; the hospital, however, would not
accept the consent from Cary, and continued to administer the medication until Jennifer, who
had been at work at the time, was able to contact the hospital and give consent herself.
Finally, on a third occasion, Richard had been admitted to another hospital for
psychiatric examination and treatment. The hospital would not allow Cary to visit Richard
during his stay, and would not provide her with information about his treatment, care or
progress because she was not his legal guardian. This occurred even though Jennifer was
present at the hospital and requested that Cary be allowed to have such information and to
visit with Richard.
The Appellants assert that all of these situations occurred despite the fact that
Jennifer had executed a power of attorney permitting Cary to make medical decisions for the
children in Jennifer's absence. The record contains a document entitled “Medical Power of
Attorney,” granting Cary the power to consent to health care decisions for Jennifer, when
Jennifer is unable to do so for herself. In addition, the record includes a document entitled
“Durable Power of Attorney,” which names Cary as Jennifer's attorney-in-fact, and grants
Cary full power over the (1) disposition of property, (2) collection of debts, (3) acquisition
of property, (4) litigation, representation, and employment of assistance, (5) endorsing
checks and depositing funds, (6) safe deposit boxes, (7) savings bonds, (8) borrowing money,
(9) executing government vouchers, (10) tax returns, and (11) automobiles, trucks, and other
personal property. It is unclear from the briefs and the record whether these two documents
were presented by the Appellants to the medical institutions, or whether the Appellants had
an additional power of attorney specifically authorizing Cary to make medical decisions for
Richard and Devon in Jennifer's absence.
On August 14, 2008, the circuit court issued an Order denying the Appellants'
petition. In that Order, the circuit court found that the Appellants could “accomplish their
goals” through West Virginia Code § 44-10-1 (2000), which permits a biological parent to
name, in their will, the person who is to be the guardian of their minor children in the event
of their death. The circuit court further found that appointing Cary as a legal guardian “is not
necessary at this time,” stating that “the appointment of a non-relative as guardian while the
custodial biological parent is alive, able and willing to care for the children has great
potential to cause unnecessary difficulties in the future for both the biological mother and the
minor children named herein.” The circuit court then concluded that such appointment was
not in the best interests of the children.
II.
STANDARD OF REVIEW
On appeal, the Appellants argue that (1) the family court improperly transferred
their petition for guardianship to the circuit court, and (2) the circuit court improperly
interpreted the guardianship statute to require that certain factual circumstances exist as a
prerequisite to appointing a legal guardian, specifically that the minor's biological parent or
other legal guardian be unable or unwilling to properly care for the minor.
“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). However, “[t]his
Court reviews the circuit court's final order and ultimate disposition under an abuse of
discretion standard.” Syl. Pt. 4, in part, Burgess v. Porterfield, 196 W. Va. 178, 179, 469
S.E.2d 114, 115 (1996). The Court, therefore, reviews the family court's transfer of the
guardianship petition and the circuit court's interpretation of the guardianship statute de
novo, but reviews the circuit court's ultimate conclusion in this case for an abuse of
discretion.
III.
DISCUSSION
A. Transfer of the Guardianship Petition
As an initial matter, the Appellants challenge the family court's transfer of their
guardianship petition to the circuit court. In its “Order of Removal of Infant Guardianship
Case to Circuit Court,” the family court found, following a preliminary review, that the
petition was based, in whole or in part, on allegations of abuse and neglect. Thus, pursuant
to Rule 48a of the Rules of Practice and Procedure for Family Court,
(See footnote 7) it transferred the
petition to the Circuit Court of Fayette County.
The statute under which the Appellants filed their guardianship petition, West
Virginia Code § 44-10-3 (Supp. 2009) (effective June 14, 2006), indicates that a legal
guardian may be appointed by
either the family court or the circuit court in the county in
which the minor resides. Rule 48a(a) of the Rules of Practice and Procedure for Family
Court, however, limits the family court's authority by providing that:
[i]f 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 case is pending, shall remove the case
to the circuit court for hearing. . . . At the circuit court hearing,
allegations of child abuse and neglect must be proven by clear
and convincing evidence.
In syllabus point seven of In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300, this Court
explained that Rule 48a(a)
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.
The Court in Abbigail Faye B. further held that when addressing such petitions, a circuit
court must conduct a hearing on the allegations of abuse and neglect and may only grant the
guardianship petition if such allegations are supported by clear and convincing evidence.
222 W. Va. at 469, 665 S.E2d at 303.
In the instant case, the Appellants' petition raises the issue of the prior abuse
by Richard and Devon's father as one of several grounds for the guardianship. Specifically,
in the petition, the Appellants set forth information about Richard A., including his abuse of
Richard and Devon and his subsequent convictions, and they explain that Richard A. no
longer pays child support and that a protective order prevents him from contacting the
children. The Appellants argue that because Richard A. is an unfit parent, the court is not
required to notify him of the guardianship proceeding. Moreover, the Appellants use the
prior abuse by Richard A. as a basis to support the petition, arguing that appointing Cary as
the children's guardian would help prevent Richard A. from ever successfully re-asserting
parental rights.
On appeal, the Appellants contend that these references to the prior abuse by
Richard A. are not new allegations of abuse or neglect which must be proven by clear and
convincing evidence as required by Rule 48a(a) and Abbigail Faye B. Thus, the Appellants
argue that the family court was not required to transfer the petition to circuit court and erred
in doing so.
At the hearing following the removal of the petition, the circuit court noted that
the allegations of abuse and neglect contained within the petition were not alleged to be
presently existing, nor were the children in any present danger of abuse or neglect. Thus, the
circuit court was not required to make a finding of abuse or neglect by clear and convincing
evidence. Despite this acknowledgment, the circuit court did not address whether the family
court's transfer of the petition to the circuit court constituted error, nor did it consider
whether the case should be returned to the family court for further consideration.
Importantly, the Appellants did not raise this issue with the circuit court either.
“In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which
the appeal has been taken.” Syl. Pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334
(1971). Here, the issue is not jurisdictional in nature because West Virginia Code § 44-10-3
provides that either the family court or the circuit court in the county in which the minor
resides may appoint a suitable person as a minor's guardian. Consequently, family and
circuit courts have concurrent jurisdiction over appointing guardians under § 44-10-3 and,
thus, the circuit court possessed jurisdiction to rule on the petition in this case. This Court,
therefore, will not consider this issue which was not properly raised below.
B. The Guardianship Petition
The principle issue in the instant appeal is whether the circuit court erred in
denying the Appellants' guardianship petition. Specifically, the Appellants contend that the
circuit court improperly interpreted the infant guardianship statute to require, as a
prerequisite to appointing Cary as the boys' legal guardian, that Jennifer be unable or
unwilling to care for her children.
The statute on which the Appellants base their petition for guardianship,
West Virginia Code § 44-10-3, entitled “Appointment and revocation of guardian by county
commission,”
(See footnote 8) vests family and circuit courts with the authority to appoint guardians for
minors. The statute does not describe the types of situations in which such appointments are
appropriate; rather, it simply states that a family or circuit court
may appoint a suitable
person as a minor's guardian. Specifically, the statute provides that
[t]he 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.
W. Va. Code § 44-10-3(a) (emphasis added). Thus, the plain language of the statute neither
requires nor prohibits the appointment of a legal guardian for a minor as an addition to, rather
than a replacement for, the minor's biological parent or parents.
It is well-settled that “[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). Although the statute at issue in this case is silent as to whether a family or circuit
court may appoint a guardian in situations such as the one presented in this case, the statute
clearly evinces a legislative intent to provide family and circuit courts with discretion in
making such determinations. By stating that family and circuit courts may, rather than must,
appoint a suitable person as a guardian for a minor, the Legislature granted family and circuit
courts discretion in determining when the appointment of a guardian is appropriate.
Here, after reviewing the Appellants' petition for guardianship, the circuit court
determined that appointing Cary as a guardian was not necessary, because Jennifer is “alive,
able and willing to care for the children.” It then denied the petition, noting that appointing
a guardian under these circumstances could potentially create unnecessary difficulties in the
future. Contrary to the Appellants' assertions, the circuit court did not wrongly interpret the
guardianship statute to require that certain prerequisites be met for the appointment of a
guardian, but rather the circuit court exercised the discretion afforded it by the Legislature
to determine that the appointment of a guardian was not necessary in this case.
As more fully explained hereafter, alternative remedies exist, including the
recently enacted “Caregiver's Consent Act,” which provide alternate avenues by which the
Appellants can address their legitimate concerns. Accordingly, under the circumstances
presented in this case, and in light these alternative remedies, the circuit court did not abuse
its discretion in denying the Appellants' petition.
(See footnote 9) The Court, therefore, affirms the decision
of the circuit court.
C. Alternative Use of a Power of Attorney
As noted, the Appellants have expressed legitimate concerns regarding Cary's
ability to make decisions for the boys in emergency situations. The facts in this case clearly
demonstrate that, because Jennifer often travels for work while Cary stays at home, Cary is
frequently the parent who first responds to medical, educational and other emergencies in the
family. Cary, therefore, needs to be able to make decisions for the children in these
situations.
Under existing West Virginia law, the Appellants can achieve these goals
through alternative means. First, as the circuit court noted, under West Virginia Code § 44-
10-1, entitled “Testamentary Guardians,” Jennifer may name Cary in her will as the
individual to become the children's guardian in the event of Jennifer's death. In addition,
as further explained herein, by executing a proper power of attorney and by utilizing a
recently enacted West Virginia law known as the “Caregivers Consent Act,” the Appellants
can ensure that Cary has the authority necessary to properly care for the boys in Jennifer's
absence.
On appeal, the Appellants argue that they had, in fact, executed a power of
attorney authorizing Cary to make healthcare decisions for the boys in Jennifer's absence,
but that several medical providers have refused to honor the power of attorney, thus
preventing Cary from making such decisions or obtaining medical information about the
children. As noted previously, the record on appeal includes two power of attorney
documents. Neither of these documents, however, specifically permit Cary to make
decisions for the children. Rather, the Appellants have executed a medical power of attorney
which designates Cary to make medical decisions for Jennifer, in the event of Jennifer's
incapacity, and a Durable Power of Attorney, which specifically grants Cary authority to
make a variety of economic and property decisions. The record does not contain a power of
attorney specifically granting Cary authority to make decisions for the children.
A “power of attorney” is “an instrument granting someone authority to act as
agent or attorney-in-fact for the grantor. An ordinary power of attorney is revocable and
automatically terminates upon death or incapacity of the principal.” Blacks Law Dictionary 1290 (9th ed. 2009). Although no West Virginia statute specifically provides for an
“ordinary” power of attorney by which a parent may grant authority over the care of their
children to another adult, the authority to grant such powers exists at common law. While
this Court has never directly addressed the legal basis for such powers of attorney, it has
recognized on several occasions that such authority may be granted. See, e.g., In re Destiny
Asia H., 211 W. Va. 481, 566 S.E.2d 618 (2002) (acknowledging a power of attorney
executed by a parent who left her child temporarily with a friend, which authorized the friend
“to act in loco parentis”); Baugh v. Merritt, 200 W. Va. 393, 395, 489 S.E.2d 775, 777
(1997) (remanding the case to the lower court for a determination of the parties' intent in
executing a document entitled “Special Power of Attorney and Voluntary Appointment of
Guardian”); Efaw v. Efaw, 184 W. Va. 355, 357, 400 S.E.2d 599, 601 (1990) (considering,
as part of a determination of who had been the children's primary caretaker, a power of
attorney authorizing the children's grandparents to make medical and other decisions for the
children).
Although the record is unclear as to whether the Appellants had executed this
type of power of attorney, to prevent any future confusion, the Court now clarifies that, at
common law, a parent or legal guardian may transfer medical, educational, and other legal
decision-making authority for his or her child or ward, to another adult through the execution
of a power of attorney. Such instruments are revocable and automatically terminate upon
disability or incapacity of the principal.
Moreover, a recently enacted law provides an additional avenue by which
Jennifer may authorize Cary to make medical decisions for the boys. In the 2010 Legislative
Session, the West Virginia Legislature passed the “Caregivers Consent Act,” West Virginia
Code § 49-11-1 to 10 (2010) (effective ninety days from March 8, 2010). This Act permits
a “caregiver,” who is an adult over the age of eighteen and is a relative by blood, adoption
or marriage to a minor, or who has resided with a minor continuously during the immediately
preceding six month period, to consent to health care and treatment on behalf of the minor,
if the caregiver possesses an adequate affidavit. Id. §§ 49-11-2, -3. Such affidavit must
provide the caregiver's name, address, birth date, and relationship with the minor, as well as
the minor's name, birth date, and length of time residing with the caregiver. Id. § 49-11-5.
In addition, the affidavit must be signed by the caregiver under oath, and by the minor's
parent or guardian, consenting to the caregiver's authority. Id. The parent or guardian's
signature is not necessary, however, if they are unavailable despite the caregiver's attempts
to locate them and seek their permission. Id. The affidavit is valid for one year, or until the
minor no longer resides with the caregiver, which ever is less. Id. § 49-11-6(b). In addition,
a parent or guardian may rescind the affidavit by writing at any time. Id. § 49-11-6(a).
Accordingly, pursuant to the Caregiver's Consent Act, an adult over the age
of eighteen who is not legally related to a minor, but who has resided continuously with the
minor for the immediately preceding six month period, may consent to health care and
treatment on behalf of the minor, so long as that adult possesses an adequate affidavit, as set
forth in that Act. Because Cary has resided continuously with the boys for more than the
most recent six-month period, it appears that, under the Caregivers Consent Act, the
Appellants may execute an affidavit permitting Cary to consent to health care and treatment
for the boys. See id. §§ 49-11-2, -3. The execution of such affidavit, combined with a power
of attorney and the testamentary designation of Cary as the children's guardian in the event
of Jennifer's death, should allow the Appellants to substantially achieve the practical
objectives that they had hoped to achieve through a guardianship appointment.
IV.
CONCLUSION
For the reasons stated herein, the Court affirms the final Order of the Circuit
Court of Fayette County, West Virginia, entered on August 14, 2008, denying the
Appellants' petition for guardianship.
Affirmed.
Footnote: 1The Court follows its customary practice in cases involving minors of using only the first
initial of the parties' last names, in order to protect the privacy of the minors.
See, e.g., In
re Emily B., 208 W. Va. 325, 329 n. 1, 540 S.E.2d 542, 546 n. 1 (2000).
Footnote: 2Although the West Virginia Department of Health and Human Resources (“DHHR”) is
designated as the Appellee in this case, it did not oppose the Appellants' petition below and
has not filed a brief in this appeal.
Footnote: 3After Jennifer divorced Richard A., the boys initially maintained contact with their father,
visiting him occasionally. In 2005, Richard A. was charged with sexually molesting his sons.
He eventually pled guilty to “dissemination of matter harmful to minors,” and the
molestation charges were dropped. He was convicted, however, of molesting the thirteen-
year-old daughter of his then girlfriend. Following the 2005 charges, the boys ceased all
contact with their father. Richard A. does not pay child support and the Appellants allege,
without documentation, that pursuant to Indiana statute, his parental rights have been
terminated.
As a consequence of the events with his father, Richard P. began acting out in school,
exhibiting violent behaviors, and he has now undergone extensive psychological treatment,
including inpatient hospitalization. As a result of these problems, the DHHR investigated
the family. All of the DHHR's reports, however, indicate that Jennifer and Cary are
“nurturing parents” who are “very supportive” of their children. The DHHR has consistently
found no risk of abuse or neglect in the home. Devon P., the younger of the brothers, appears
to be well adjusted and is not suffering the same consequences of their father's actions as
Richard P.
Footnote: 4The petition also sought a legal name change for Richard P., who was named after his father,
Richard A. While undergoing psychological treatment, Richard P. became upset over having
the same name as his father and decided, with Jennifer and Cary's support, to change his first
name. The circuit court granted this name change in October 2008, and that Order is not at
issue in this appeal.
Footnote: 5Because the record contains no documentation or explanation of the alleged termination
under Indiana law of Richard A.'s parental rights, the Court is unable to discern whether the
Appellants' concerns in this area are legitimate.
Footnote: 6The petition indicates that the Appellants ultimately want Cary to legally adopt Richard and
Devon and that they are seeking the guardianship as an interim measure.
Footnote: 7The family court Order removing the guardianship petition to circuit court incorrectly cites
“Rule 47a” of the Rules of Practice and Procedure for Family Court as its basis for removal,
rather than Rule 48a(a). In fact, Rule 47(a) provides for the appointment of guardian ad
litems in family court cases, while Rule 48a(a) establishes the basis for removing a
guardianship petition to circuit court.
Footnote: 8Prior to 2004, West Virginia Code § 44-10-3 (Supp. 1999) authorized county commissions
to appoint guardians for minors. Although the Legislature, in 2004, amended the statute to
transfer that authority to family and circuit courts, it did not change the title of the statute.
Footnote: 9
Because circuit and family courts may be utilizing West Virginia Code § 44-10-3 to grant
temporary guardianships to non-parents where a parent is absent, in order to stabilize the
child's custodial situation or assure his receipt of benefits, the Court is hesitant to embark on
any interpretation of existing law that would limit a family or circuit court's authority in this
area. Such interpretation is unnecessary for resolution of the instant issue. Further, any
analysis of the breadth of a family or circuit court's authority to grant guardianships to non-
parents should only be made after such issues are fully briefed and argued, which has not
occurred in this case. There is concern, however, that current interpretations of statutory and
case law may permit family and circuit courts to appoint a legal guardian for a minor over
the objection of a natural, unoffending parent whose parental rights have not been
terminated. The appointment of a legal guardian for a child in such a situation could
arguably divest the natural parent of his or her parental rights without meeting the legal
standards required in termination proceedings. To be clear, however, the Court recognizes
that situations do exist where a guardianship may be appropriate and in the child's best
interests, even when there is a natural parent whose rights have not been terminated. See,
e.g., In Re Nelson B., ___ W. Va. ___, ___ S.E.2d ___, 2010 WL 2346736 (W. Va. June 10,
2010).
Because these significant issues are not raised or briefed in the instant case, and because
addressing them is unnecessary for resolution of the issues here, the Court declines to do so
at this time. However, these are significant questions that the Legislature should perhaps
review and address. Of course, in enacting any changes, the Legislature should be mindful
of the large body of case law holding that the best interests of the child are always of
predominate concern. See, e.g., Syl. pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193
(1996).