In re Adoption of J.S. and K.S.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_____________________ FILED
May 14, 2021
No. 20-0185 released at 3:00 p.m.
_____________________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE ADOPTION OF J.S. AND K.S.

___________________________________________________________

Appeal from the Circuit Court of Webster County
Honorable Jack Alsop, Judge
Case Nos. 17-A-5 & 17-A-6

REVERSED AND REMANDED WITH DIRECTIONS
_________________________________________________________

Submitted: March 24, 2021
Filed: May 14, 2021

G. Wayne Van Bibber, Esq. Mary Elizabeth Snead, Esq.
Law Offices of G. Wayne Van Bibber Law Firm of M. E. Snead, PLLC
& Assoc., PLLC Webster Springs, West Virginia
Hurricane, West Virginia Guardian Ad Litem for the Minor
Counsel for Petitioner, C.R. Children

JUSTICE WOOTON delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “A constitutional issue that was not properly preserved at the trial court level

may, in the discretion of this Court, be addressed on appeal when the constitutional issue

is the controlling issue in the resolution of the case.” Syl. Pt. 2, Louk v. Cormier, 218 W.

Va. 81, 622 S.E.2d 788 (2005).

2. “‘[This Court] may, sua sponte, in the interest of justice, notice plain error.’

Syl. Pt. 1, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).” Syl. Pt. 1,

Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008).

3. “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).

4. “There is a 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).

i
 5. Unless otherwise permitted by law, where a circuit court grants a petition

for adoption of a child pursuant to the procedures set forth in West Virginia Code §§ 48-

22-701 to -704 (2015), the court may not include any provision in the final order of

adoption that would limit, restrict, or otherwise interfere with the adoptive parent’s right to

make decisions concerning the care, custody, and control of the child.

ii
WOOTON, Justice:

This is an appeal filed by C.R., adoptive mother of J.S. and K.S., from an

order of the Circuit Court of Webster County which denied C.R.’s motion to modify a

provision in the final adoption orders prohibiting visitation between the children and R.R.,

C.R.’s former husband.1 Because we conclude that this provision in the final adoption

orders was an impermissible judicial restriction on C.R.’s parental rights, and therefore

void, we reverse the circuit court’s order denying the motion to modify and remand with

instructions for the court to enter amended adoption orders consistent with this opinion.

I. Facts and Procedural Background

The genesis of the instant case was an abuse and neglect proceeding filed by

the West Virginia Department of Health and Human Resources (“DHHR”) against the

natural parents of J.S., now eight years of age, and K.S., now seven years of age.2 On

October 24, 2016, the parents’ parental and custodial rights were terminated. Both parents

appealed, and on October 23, 2017, this Court affirmed the termination of their rights. In

re J.S. and K.C., 3 Nos. 17-0331 & 17-0340, 2017 WL 4772938 (W. Va. Oct. 24, 2016)

1
Consistent with our practice in cases involving sensitive matters, we refer to the
children and all parties by their respective initials. See, e.g., State v. Edward Charles L.,
183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
This was the second such proceeding filed against the biological parents. In the
initial proceeding, the children were placed with C.R. and R.R. until they were reunified
with the parents.
3
The appendix record does not disclose why K.S. was then known as K.C.
1
(memorandum decision). Both prior to and during the abuse and neglect proceedings J.S.

and K.S. were in the custody of petitioner C.R., their biological aunt, and C.R.’s husband,

R.R., and the permanency plan was for them to adopt both children in the event of

termination. In this regard, the children had lived with C.R. and R.R. for most of their lives

and had a strong bond with both.

At some point during the permanency planning/pre-adoption phase of the

abuse and neglect proceedings, evidence arose showing beyond doubt that R.R. was a user

of illicit drugs. Although DHHR had earlier consented to the children’s adoption by C.R.

and R.R., it filed a motion to withdraw its consent as to R.R. By order dated July 19, 2018,

the circuit court granted DHHR’s motion, concluding that “[i]t is patently unfair to subject

the children to [R.R.’s] drug related conduct and to let them be in his custody when the

children’s parents’ rights were terminated for the same reasons.” The court also noted that

when questioned under oath about his drug use during an earlier court hearing, R.R. had

not been truthful in his denials.

The guardian ad litem, who appeared in these appellate proceedings in

opposition to the relief sought by C.R., 4 acknowledges that C.R. was “devastated and

unaware of R.R.’s behavior, kicked him out of the home and immediately filed for

4
See infra note 7, discussing the role of the guardian ad litem in the adoption
proceedings below and in this appeal.
2
divorce.” 5 Thereafter, C.R. filed an amended petition seeking to adopt J.S. and K.S. as a

single parent, and on July 2, 2018, the circuit court signed identical orders granting the

adoptions. 6 However, notwithstanding the unequivocal declaration of C.R.’s parental

rights contained in each order, see discussion infra, each order provided in the final

paragraph that C.R. was “enjoined and restrained from permitting any contact of any nature

by the child with [her] ex-husband [R.R.].”

On October 14, 2019, C.R. filed a motion to modify the injunction contained

in the adoption orders, detailing the steps R.R. had taken to overcome his drug addiction:

in April, 2019, he completed a seven-day in-patient detoxification program at Highland

Hospital; following his discharge from Highland Hospital he completed a twenty-eight-

day in-house rehabilitation program at St. Francis Hospital; he has been clean since

discharge from St. Francis; and he attends at least ten addiction recovery meetings a week

and leads two of those meetings, which are described as “Christ based.”

5
According to the transcript of proceedings on C.R.’s motion for modification, the
divorce was granted in or about March, 2018.
6
It is unclear why the order granting DHHR’s motion to withdraw consent as to
R.R.’s adoption of the children was entered more than two weeks after the orders granting
C.R.’s adoption of the children.

3
 A hearing on C.R.’s motion was held on January 2, 2020, in which C.R.

testified in support of the averments in the motion and submitted documentation of R.R.’s

consistently clean drug screens and his participation in, and leadership of, numerous peer-

led recovery group meetings. C.R. also offered the testimony of both R.R. and Thomas

Eagle, R.R.’s mentor and fellow participant in the Reach Up Recovery Ministry, that R.R.

had stayed clean, had been a positive influence for others in recovery, and had changed his

life in many positive ways.

At the conclusion of the hearing, C.R.’s counsel summed up the evidence in

support of the motion for modification. The prosecuting attorney, who appeared as counsel

for DHHR, objected on the ground that R.R. had not admitted to his drug problem during

the pendency of the adoption proceedings and had taken no steps at that time to address his

addiction issues. The guardian ad litem, 7 when asked by the court to take a position, stated

7
The guardian ad litem, who had represented the interests of the children in the
underlying abuse and neglect proceedings against the biological parents, represented to this
Court that she had not been noticed on C.R.’s motion for modification because she had not
been a participant in the adoption proceedings. In this regard, the July 2, 2018, orders of
adoption both noted that the circuit court, “perceiving no necessity for the appointment of
a guardian ad litem for the infant . . . proceeded to the hearing of [C.R.’s amended adoption
petition].” On January 2, 2020, the guardian ad litem was in the courtroom on another
matter when C.R.’s motion for modification came on for hearing, and she participated in
the hearing. Thereafter, she filed a brief in opposition to C.R.’s petition for appeal and
made oral argument in this Court, despite having never been appointed to represent the
interests of the children in this matter. We appreciate the guardian’s zealous advocacy on
behalf of J.S. and K.S. in this matter, which she considered to be an “action ancillary to the
abuse and neglect proceeding including proceedings to address the disruption of a
permanent placement[.]” See W. Va. R. Proc. for Child Abuse and Neglect Proceedings
18a(b) and Appendix A, Guidelines for Children’s Guardians ad Litem in Child Abuse and
4
that “I will leave it to the discretion of the Court, but I – I am extremely hesitant to

recommend contact.” However, she also noted that “the children did always have a strong

bond with [R.R.] . . . . And I know it was heartbreaking for the children to be separated

from him.”

On January 23, 2020, the circuit court entered an order denying the motion

for modification, finding that R.R. had not accepted responsibility for his previous actions

and his previous false swearing, and further finding that “[a]llowing [R.R.] contact with

the children is contrary to the best interest of the children[.]” This appeal followed.

II. Standard of Review

Although the parties to this appeal 8 have extensively briefed and argued the

question of whether the circuit court abused its discretion in denying C.R.’s motion for

modification of a provision in the adoption orders which enjoins contact between R.R. and

the adopted children, this Court has determined that the dispositive issue in this case is

whether the court had the statutory authority to order such a limitation on C.R.’s rights as

an adoptive parent. See text infra. This is a question of law which has a constitutional

dimension, requiring us to examine both West Virginia Code §§ 48-22-101 to -903 (2015),

Neglect Cases at E(3). In light of our disposition of this case, we express no opinion as to
whether Rule 18a(b) and Appendix A can support this interpretation.
8
DHHR did not file a brief in this matter and did not appear, in person or by counsel,
at oral argument.
5
which governs adoption proceedings in this State, as well as article III, section 10 of the

West Virginia Constitution. We have held that:

[W]here, as here, the question before the circuit court involves
the interpretation of the applicable law and governing statutes,
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).

In re Adoption of Jon L., 218 W. Va. 489, 492, 625 S.E.2d 251, 254 (2005); see also

Murrell B. v. Clarence R., 242 W. Va. 358, 364, 836 S.E.2d 9, 15 (2019); State v. Haines,

221 W. Va. 235, 237, 654 S.E.2d 359, 361 (2007).

III. Discussion

As set forth above, this Court has determined that the dispositive issue in this

case is whether the circuit court had the statutory authority to limit C.R.’s rights as an

adoptive parent, a question which has a constitutional dimension in that it implicates “the

fundamental right of a parent to make decisions concerning the care, custody, and control

of his or her children.” In re K.H., 235 W. Va. 254, 263, 773 S.E.2d 20, 29 (2015) (citing

Troxel v. Granville, 530 U.S. 57 (2000)). Although neither party has squarely addressed

this issue, this Court has held that “[a] constitutional issue that was not properly preserved

at the trial court level may, in the discretion of this Court, be addressed on appeal when the

constitutional issue is the controlling issue in the resolution of the case.” Syl. Pt. 2, Louk

v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005). Further, “‘[t]his Court] may, sua

6
sponte, in the interests of justice, notice plain error.’ Syl. Pt. 1, in part, State v. Myers, 204

W. Va. 449, 513 S.E.2d 676 (1998).” Syl. Pt. 1, Cartwright v. McComas, 223 W. Va. 161,

672 S.E.2d 297 (2008). For the reasons set forth herein, we conclude that the instant case

falls within these limited exceptions to our usual rules of waiver and/or forfeiture.

The procedures for adoption of minor children in this State are set forth in

West Virginia Code §§ 48-22-701 to -704 (2015), which together provide a detailed

roadmap for reaching a goal of singular importance to this Court: permanent placement in

secure, loving homes for every child who cannot, for any number of reasons, find that

security and love with his or her biological parents. To this end, Rule 43 of the West

Virginia Rules of Procedure for Child Abuse and Neglect Proceedings provides that

“permanent placement of each child shall be achieved within twelve (12) months of the

final disposition order, unless the court specifically finds on the record extraordinary

reasons sufficient to justify the delay.” We have held that:

The . . . period provided in Rule 43 of the West Virginia Rules
of Procedure for Child Abuse and Neglect Proceedings for
permanent placement of an abused and neglected child
following the final dispositional order must be strictly followed
except in the most extraordinary circumstances which are fully
substantiated in the record.

7
Syl. Pt. 6, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 9 This urgency follows from

our longstanding recognition that “a child deserves resolution and permanency in his or her

life.” State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996).

In all cases where the permanency plan is adoption, “[w]hen the cause has

matured for hearing but not sooner than six months after the child has resided continuously

in the home of the petitioner [seeking adoption,]” W. Va. Code § 48-22-701(a), the initial

duty of the circuit court is to “cause a discreet inquiry to be made to determine whether such

child is a proper subject for adoption and whether the home of the petitioner or petitioners

is a suitable home for such child.” See id. § 48-22-701(b). 10 The purpose of the inquiry is

to furnish a basis on which the court can determine whether “the petitioner is . . . of good

moral character, and of respectable standing in the community, and [is] able properly to

maintain and educate the child sought to be adopted, and that the best interests of the child

9
At the time Cecil T. was decided, the time limit set forth in Rule 43 was eighteen
months. By Order entered January 3, 2012, this Court amended the Rule to reduce the limit
to twelve months.
10
West Virginia Code § 48-22-701(b) requires that a report be made detailing the
results of the inquiry, which

shall include, but not be limited to, the following: (1) A
description of the family members, including medical and
employment histories; (2) A physical description of the home
and surroundings; (3) A description of the adjustment of the
child and family; (4) Personal references; and (5) Other
information deemed necessary by the court, which may include
a criminal background investigation.
8
would be promoted by such adoption[.]” See id. § 48-22-701(d). Having once made these

findings, the court

shall make an order reciting the facts proved and the name by
which the child shall thereafter be known, and declaring and
adjudging that from the date of such order, the rights, duties,
privileges and relations, theretofore existing between the child
and those persons previously entitled to parental rights, shall
be in all respects at an end, and that the rights, duties, privileges
and relations between the child and his or her parent or parents
by adoption shall thenceforth in all respects be the same,
including the rights of inheritance, as if the child had been born
to such adopting parent or parents in lawful wedlock, except
only as otherwise provided in this article[.]

See id. In the instant case, the circuit court made all of the necessary findings and set forth

all of the statutory conclusions in the orders of adoption. The court then went on, however,

to include a restriction on C.R.’s right to allow the children to see R.R. We find that this

restriction was void ab initio, 11 as the court had no authority to impose it.

First, from the moment an adoption order is entered, an adoptive parent has

the same rights “as if the child had been born to” him or her. In that regard, we have held

that “[t]he 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

11
The fact that the restriction on C.R.’s rights was void, rather than voidable, is
significant to our analysis. See text infra.
9
S.E.2d 308 (2003); see also In re Antonio R.A., 228 W. Va. 380, 388, 719 S.E.2d 850, 858

(2011) (“the right of a natural parent to the custody of his or her infant child . . . is a

fundamental personal liberty protected and guaranteed by the Due Process Clauses of the

West Virginia and United States Constitutions.”) (citation and footnote omitted); Alyssha

R. v. Nicholas H., 233 W. Va. 746, 753, 760 S.E.2d 560, 567 (2014) (“The right of a parent

to make decisions concerning the care, custody, and control of her children is among the

most cherished fundamental liberty interests.”) (citation omitted); Hammack v. Wise, 158

W. Va. 343, 348, 211 S.E.2d 118, 121–22 (1975) (“One’s right to conceive and to raise his

children has found protection in the Due Process Clause of the Fourteenth Amendment and

also on the Equal Protection Clause thereof, as well as the comparable clauses of the West

Virginia Constitution.”) (citations omitted). Although parental rights must sometimes

yield in situations where they are in conflict with the best interests of the child, 12 no such

situation is presented here; the circuit court specifically found in the adoption orders for

J.S. and K.S. that “the best interests of the said [child] will be promoted by such

adoption[.]” Additionally, “[t]here is a presumption that fit parents act in the best interests

of their children.” Lindsie, 214 W. Va. at 751, 591 S.E.2d at 309, Syl. Pt. 4. In this regard,

there is no evidence whatsoever in the record of this case that C.R., who is acknowledged

12
“‘[T]he best interests of the child is the polar star by which decisions must be
made which affect children.’ Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d
866, 872 (1989).” Kristopher O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381, 389
(2011).

10
by all parties to be a fit parent, has ever acted in a way that was not in the best interests of

J.S. and K.S. 13

Second, West Virginia Code § 48-22-701(d) specifically provides that an

adoptive parent’s rights “shall thenceforth in all respects be the same . . . as if the child had

been born to such adopting parent . . . except only as otherwise provided in this article[.]”

(Emphasis added). In this regard, our review of article 48, Chapter 22 of the Code reveals

no authority whatsoever for the circuit court to impose a restriction on an adoptive parent’s

right to make decisions involving the children’s relationships with other individuals. 14

Indeed, such an action by the court would directly, and negatively, impact “the creation of

new adoptive relationships, which breeds certainty for adopted children and their adoptive

parents, alike, in their new adoptive relationship.” In re Cathy L.(R.)M. v. Brent R., 217

W. Va. 319, 328, 617 S.E.2d 866, 875 (2005) (Davis, J., concurring).

It is well established that in an area of law created, defined, and regulated by

the Legislature, absent any ambiguity in the statutory language, the authority of the

13
In this regard, it is noteworthy that C.R. sought guidance from the children’s
therapist about the possibility of allowing them to have contact with R.R., before filing her
petition for modification.
14
West Virginia Code § 48-22-704 does enable a circuit court to hear a petition to
enforce a pre-existing agreement for visitation or communication with an adopted child, a
situation not presented in the instant case. Murrell B., 242 W. Va. at 367, 836 S.E.2d at 18
(holding that unless such agreement is memorialized in order of adoption, it is not
enforceable).
11
judiciary is limited to that specifically granted in the statute. See, e.g., The John A.

Sheppard Mem’l Ecological Rsrv., Inc. v. Fanning, 242 W. Va. 459, 464, 836 S.E.2d 426,

431 (2019) (no language in relevant statute supports existence of derivative action by a

director against a nonprofit corporation); State ex rel. C.H. v. Faircloth, 240 W. Va. 729,

745, 815 S.E.2d 540, 556 (2018) (findings and conclusions in abuse and neglect case must

“demonstrat[e] exercise of clear-cut statutory authority.”) (citing In re J.G., II, 240 W. Va.

194, 204, 809 S.E.2d 453, 463 (2018)); State ex rel. Ray v. Canady, 208 W. Va. 182, 184,

539 S.E.2d 442, 444 (2000) (circuit court’s award of temporary alimony proper because

there is clear statutory authority therefor); State ex rel. Riffle v. Ranson, 195 W. Va. 121,

129, 464 S.E.2d 763, 771 (1995) (once Legislature enacted statute governing transfer of

cases from one circuit court to another, “any other transfer . . . that is not explicitly

permitted by the statute is impermissible and forbidden.”); Sally-Mike Props. v. Yokum,

179 W. Va. 48, 50, 365 S.E.2d 246, 248 (1986) (circuit court without authority to award

attorney fees absent express statutory or contractual authority).

Accordingly, we hold that unless otherwise permitted by law, where a circuit

court grants a petition for adoption of a child pursuant to the procedures set forth in West

Virginia Code §§ 48-22-701 to -704 (2015), the court may not include any provision in the

final order of adoption that would limit, restrict, or otherwise interfere with the adoptive

12
parent’s right to make decisions concerning the care, custody, and control of the child. 15

In the instant case, where C.R. had been judicially determined to be a fit parent and the

adoption had been judicially determined to be in the best interests of J.S. and K.S., the

circuit court’s attempt to restrict C.R.’s parental rights denied her due process of law.

We are not persuaded by the argument of the guardian ad litem that C.R.’s

failure to appeal after entry of the adoption orders forecloses our consideration of this

matter. The restriction contained in the circuit court’s order was void, not simply voidable,

as the court “acted in a manner inconsistent with due process of law.” Amoruso v. Com.

and Indus. Ins. Co., 241 W. Va. 517, 522 n.9, 826 S.E.2d 642, 647 n.9 (2019) (citation

omitted). It was long ago established in our jurisprudence that a void order can be

collaterally attacked because the law “holds it for naught, disregards or ignores it[.]” State

ex rel. Browning v. Tucker, 142 W. Va. 830, 838, 98 S.E.2d 740, 745 (1957). Where, as

here, the result of the circuit court’s error was “the trampling of a fit mother’s parental

rights[,]” Alyssha R., 233 W. Va. at 753, 760 S.E.2d at 567, this Court “may, sua sponte,

15
Our holding today does not affect a circuit court’s right to enjoin any parent whose
rights have been terminated from contacting the child. Further, the court retains the right
to enforce any grandparent visitation order that survives adoption pursuant to West
Virginia Code § 48-10-902 (2015); any sibling visitation order required by our holding in
Syllabus Point 4 of James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991); and/or
any visitation agreement that survives adoption pursuant to our holding in Syllabus Point
5 of Murrell B. v. Clarence R., 242 W. Va. 358, 371, 836 S.E.2d 9, 22 (2019), in post-
adoption enforcement proceedings brought by an affected party.

13
in the interest of justice, notice plain error.” Myers, 204 W. Va. at 453, 513 S.E.2d at 680,

Syl. Pt. 1, in part.

IV. Conclusion

For the foregoing reasons, the circuit court’s order of January 23, 2020, is

reversed. This case is remanded with directions that the circuit court enter amended orders

in Case Nos. 17-A-5, Adoption of [J.L.S.], and 17-A-6, Adoption of [K.R.S.], nunc pro

tunc to July 2, 2018, eliminating the final sentence in each order which purports to enjoin

and restrain C.R. “from permitting any contact of any nature by the child with the

Petitioner’s ex-husband [R.R.].”

Reversed and Remanded
With Directions.

14