I agree with the result obtained by the majority of the Court, and I concur that,
pursuant to W. Va. Code § 44-10-3 (2006) (Repl. Vol. 2010), the decision of whether a
guardian should be appointed for a minor child in a particular case rests within the sound
discretion of the presiding court. Nevertheless, I feel compelled to write separately to
reiterate my concerns regarding the inadequacy of the guardianship statutes currently in
place that fail to consider the unique circumstances of modern-day families and leave such
parents with little assurance that their children will be sufficiently provided for in an
emergency situation.
Throughout its jurisprudence, the Court frequently has acknowledged that a
parent has the right to the custody of his/her child. See, e.g., Syl. pt. 1, In re Willis, 157
W. Va. 225, 207 S.E.2d 129 (1973) (“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., Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691
(1960) (“A parent has the natural right to the custody of his or her infant child, 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.”).
Attending such custodial rights is the parent's corresponding responsibility
to make decisions to promote and ensure his/her child's well-being, including making
provisions for the child's care in the event of an emergency. Although such arrangements
necessarily must comport with a child's best interests and are presumed to be made by a
parent in accordance therewith, (See footnote 1) providing for a child's best interests and well-being in
anticipation of an emergency situation is not always easily achieved as is evidenced by the
presence of the case sub judice before this Court. While the instant proceeding arose in the
context of a less traditional family structure, the concerns expressed by Jennifer and Cary
might easily have occurred in any number of typical American households. Oftentimes, a
child's parent is requested to sign a form authorizing another person to obtain medical care
for a child as a prerequisite to the child's participation in school, sports, extracurricular, or
religious activities. However, a seeming double-standard exists when, as here, a parent's
attempt to give another person the authority to seek medical care for his/her child is not
heeded, arguably because such authorization was not provided on an “official” childcare
authorization form such as would be used by schools and sports, extracurricular, and
religious organizations.
In still other families, as with the family involved in this case, one of the
child's parents might work very far from home, or even out of the country, as with the case
of a tractor trailer driver or deployed military personnel. The parent remaining at home in
both such families understandably would want to make provisions for his/her child should
something happen to the home-based parent given the delay in contacting the off-site
parent. Appointment of an alternate formal guardian pursuant to W. Va. Code § 44-10-3
is not always viable because it is rather invasive of the parents' parental rights, yet the
necessity of executing decision-making documents that will be honored by medical,
educational, and other facilities is of real concern to these families. Similar problems arise
in households in which the children have only one residential parent-either because the
other parent is deceased or because the other parent's parental rights have not been
exercised or have been terminated. In these families, what happens if the remaining parent
becomes incapacitated and cannot care for the children or if that parent is out of town and
cannot be reached? Does the law of this State enable this parent to adequately plan for such
a contingency?
While the Legislature has made significant inroads in recent months to
accommodate a parent's need to provide for his/her children's medical care in the event of
an emergency through its enactment of the Caregivers Consent Act, W. Va. Code § 49-11-
1, et seq., more certainty and direction is needed to ensure that a parent's authorization of
another to act on his/her behalf for his/her child's well-being will be respected by medical,
educational, and legal authorities. This Court, too, through its recognition of a power of
attorney as a method by which a parent may delegate medical, educational, and legal
decision-making authority regarding his/her child to another adult gives parents substantial
power to plan for their children's safety and well-being in the event of an emergency. With
the promulgation of this new statutory law and the Court's decision of this opinion, I
fervently hope that other families will not have to endure the turmoil that Jennifer and Cary
have undergone, all in an effort to provide for the best interests of their children. However,
whether either an affidavit prepared in accordance with the Caregivers Consent Act or a
power of attorney executed pursuant to this Court's holding will satisfy the demands of
cautiously wary educational, medical, and legal institutions to actually permit a non-parent
to exercise such delegated decision-making authority remains to be seen. While the law of
this State is evolving to recognize the changing dynamics of modern families and the
arrangements they wish to make to provide for unforeseen contingencies, many institutions
have not yet embraced the accommodations that are required to carry out these parents'
legally enforceable decisions for the care of their children.
As a final matter, I would be remiss if I did not also comment on the Court's
seeming reluctance, in footnote nine of the majority's opinion, to embrace the discretion
afforded to courts to appoint guardians for minor children. As clearly delineated in the
guardianship statute, see W. Va. Code § 44-10-3, and as I pointedly held in Syllabus point
6 of In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008), courts have the
discretion to determine when a child's best interests require the appointment of a guardian. See W. Va. Code § 44-10-3(a) (2006) (Repl. Vol. 2010) (“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.” (emphasis added)). See also Syl. pt. 6, In re Abbigail Faye B., 222 W. Va. 466,
665 S.E.2d 300 (2008) (“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).” (emphasis added)). This discretion is clearly provided for in the governing
statutory law and should be accepted without question.
It goes without saying that the law dictating precisely when a guardian should
be appointed for a minor child is murky and does not contemplate all of the nuances of
today's modern family. Although custodial placements are not directly at issue in this case,
the majority's reticence to permit courts to appoint guardians in necessary circumstances
may thwart a court's ability to honor a child's best interests by prematurely thrusting
him/her into a custodial placement with a parent or another adult with whom the child does
not have an established relationship. For example, a child may be living with one parent
and have little or no contact with his/her other parent who moves out of state following the
parents' divorce. If the child's residential parent dies, becomes incapacitated, or otherwise
becomes unfit to care for the child, and if the non-residential parent is fit to have the child's
custody, the law governing child custody directs that child's best interests are best served
by a gradual transition to the non-residential parent's custody. See Syl. pt. 3, James M. v.
Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (“It is a traumatic experience for children
to undergo sudden and dramatic changes in their permanent custodians. Lower courts in
cases such as these should provide, whenever possible, for a gradual transition period,
especially where young children are involved. Further, such gradual transition periods
should be developed in a manner intended to foster the emotional adjustment of the children
to this change and to maintain as much stability as possible in their lives.”). The
appointment of a guardian under such circumstances would serve to accomplish this
transition by bridging the gap between the former residential parent's custody and the
subsequent non-residential parent's custody. Such a guardian might simply be a
grandparent with whom the child has an exceptionally close relationship and with whom
the child previously has resided. In this scenario, the appointed guardian might not be
afforded the full gamut of parental rights but the guardian would be vested with the ability
to make decisions on the child's behalf to ensure his/her safety and well-being during the
period of transition. If courts are not afforded the discretion-granted to them by
statute-
to appoint guardians, the gradual transition of custody most befitting the child's best
interests could not be accomplished in such a case. Therefore, I urge that any decisions or
changes in the law regarding the propriety of guardianship appointments be made with
extreme caution to ensure that innocent children do not become hapless victims of the laws
that are intended to provide them with safety and security.
Although progress has been made through the recent decisions of this Court
to clarify the circumstances in which the appointment of a guardian is appropriate and by
the Legislature with its promulgation of the Caregivers Consent Act, additional legislative
action must be taken to further clarify the process by which laypersons may delegate
medical, educational, and legal decision-making authority for their children in the event of
an emergency. Until such further guidance is provided, and heeded by the medical,
educational, and legal institutions to whom parents direct such permission, I remain
cautiously optimistic about families' abilities to adequately plan for the safety and well-
being of their children should an emergency arise.
For the foregoing reasons, I respectfully concur in the majority's decision in
this case.