dissenting:
I respectfully dissent from the decision of my colleagues as expressed in the majority opinion. I agree in the main with that part of the discussion concerning the laws and constitutional principles as they relate to the temporary custody of an infant child in cases of this nature, but I believe that this discussion is irrelevant to the proper resolution of the issue in this case. The sole issue, in my opinion, is whether the trial court properly found after the 1972 hearings that the Willises were unfit parents.
Certainly, neither a court nor the Department of Welfare can, under the guise of temporary custody, permanently remove a child from its natural parents. The “overriding state interest” principle cannot be thus abused. The discussion of the laws and constitutional principles concerning this is learned and well articulated in the majority opinion. Most certainly such temporary custody can only be for a reasonable time and the length of time “depends on the needs and circumstances of the individual case.” Obviously, a retention of a child under a temporary custody order for a period of three years is too long and is violative of the due process rights of the parents. I disagree strongly, however, with the conclusion of the majority that the original action by the court awarding temporary custody is thus void ab initio. This conclusion *250has no bearing on the outcome of the majority decision and is an added increment not called for by the logic or rationale of the above rule. The prolonged illegal temporary custody, resulting in the unconstitutional application of an otherwise constitutional statute, is sufficient in itself to terminate the temporary retention. Code, 1931, 49-6-3, as amended, however, clearly gave the court authority to make the original award. Lifting ourselves by the bootstraps by creating the fiction that a once legal proceeding becomes void ab initio is a dangerous precedent. Such judicial overkill is not necessary for the majority disposition of the case, and may well adversely affect some future relationship between innocent third parties.
I agree with most of the well-reasoned discussion in the majority opinion of the law relating to the right of parents to custody of their children. I disagree sharply, however, with the majority’s application of these legal principles to the facts of the case. I agree that: A decision involving custody of an infant is in the sound discretion of the juvenile court and that the juvenile court is authorized to exercise a discretion conducive to the best interest of the child; the right of a natural parent to the custody of his or her infant child is paramount to the rights of any other person (except the child, of course); the right of the natural parent is not absolute and may be limited or terminated by the State if the parent is proved to be unfit; in order to separate a child from its parents on the ground of their unfitness, there must be clear, cogent and convincing proof; each case of alleged unfitness of the natural parent must be decided on its own particular facts; once a determination of unfitness is made, the welfare of the infant is the polar star by which the discretion of the court is to be guided in making its award of legal custody; and finally and importantly, an appellate court reviewing a custody award made by a trial court is governed by the long established and still prevailing rule of law that the finding of fact by a juvenile court in the exercise of its equity jurisdiction *251will not be disturbed unless at variance with undisputed evidence or contrary to the plain preponderance of the whole evidence.
The majority opinion states: “ * * * Viewing the evidence of the State in the best light possible, it is strongly indicative of child neglect and less than proper parental care for a period from 1966 to December of 1968. From that point forward until late 1971, the evidence less strongly, though certainly affirmatively, indicates an unawareness on the part of the parents of their own personal needs as well as the State-recognized needs of the children. The rather dismal home conditions which prevailed during that period certainly cannot be ignored by this Court, nor were they ignored by the juvenile court. * * * ” The statement of facts is well presented in the majority opinion, but the above summary of them in applying the law is a considerable understatement.
The majority expresses the view that after 1971 and until the hearing in the Fall of 1972, the home conditions and the efforts of Mr. and Mrs. Willis to become better parents improved. Importantly, the opinion goes on to say: “In summary, the best evidence of the department of welfare is remote and, unfortunately for the State, irrelevant to the conditions existing in the critical period just prior to the autumn of 1972, when the court was called upon to reassess in a valid and meaningful manner, relevant and pertinent evidence on the issues of neglect and unfitness of the parents. * * * ”
The principal witness in the case, the social worker, Nellie MacMillion, who observed the family frequently during the important period between 1966 and 1969, testified that during her visits to the home she found that there was continually a strong odor in the house; that the family used the area around the house for toilet functions; there was human excreta in the house; and that the cooking utensils were filthy. The rest of her testimony was well summarized in the majority opinion: “ * * * As *252to the physical structure of the house, the only heating unit, a stove, was propped up with bricks and rocks; there were no bathroom facilities; the kitchen facilities were such that it was impossible to prepare complete meals; there were only two bedrooms in the house. There were twelve persons occupying the house in December of 1968. Found in that environment, Ronald Lee, the disputed infant, appeared anemic, underdeveloped and undernourished as well as being physically dirty. Additionally, the witness testified she had observed a number of partially-filled wine bottles in the home and, on one occasion during that time period, she had observed Mr. Willis in an intoxicated state in the county jail. * * * ”
Another social worker, Bruce Webb, testified that he was assigned to the family between 1970 and 1972, and his testimony indicated that these conditions remained substantially the same during that period of time. He testified that on one visit to the home in November, 1971, when the weather was extremely cold, the house was open to the cold weather and that the occupants were suffering from the cold, although they were dressed as warmly as possible. Webb also testified about seeing the father, John Willis, intoxicated in the presence of his children. Appropriate witnesses for the State indicated a serious discipline problem with the Willis children as well as frequent absences from school during the entire period through 1971.
None of the witnesses for the State could be considered to be biased in the ordinary sense. The two most important ones were MacMillion and Webb, social workers who, excepting the parents, knew far more about the family than any witnesses involved. The testimony of the principal witnesses for the defendants, on the other hand, could have been considered suspect. John Willis, the father, neither denied nor offered any rebuttal testimony concerning his alcoholic and slovenly habits. John Willis’ sister could well have been motivated *253by the obvious familial interest. The mother, Mrs. Willis, although having the opportunity to testify, declined to avail herself of that opportunity. Mary McNab was obtained by the parents as a purported expert witness. Her qualifications was one year in social work in the neighborhood of Washington, D.C. After the defendants were alerted to her arrival, she visited them on two occasions for a total of two and one-half hours. Based on this, she made the sweeping conclusion that the Willises were fit parents. Likewise sent to the Willis home after notification to them, was witness Sommerville. He testified concerning the same home that MacMillion and Webb had described as being so deplorable. Sommer-ville made the somewhat startling observation that the home was “a very typical West Virginia home”, and “a good place for children to be living in.”
I agree with my colleagues that the proceedings of February 16 were invalid, and that the hearings of September 7, and September 29, 1972, were legal in all respects. I am at a loss to understand, however, how the evidence covering the period 1966 to 1972 by MacMillion and Webb loses its probative force when it was introduced during the latter hearings simply because it had been previously introduced in an irregular proceeding. The probative value of this evidence should likewise not be reduced because the infant, Ronald Lee Willis, was too long in the temporary custody of foster parents. The evidence was perfectly valid and, in fact, uncontroverted to prove that in each of the years from 1966 through 1971 the conditions of the Willis home were intolerable for adequately rearing children and that the Willises either could not, or did not care to remedy their problems. This evidence was offered only to establish the conditions during that period. The evidence concerning the part of the year 1972 that was involved should, of course, be weighed along with the evidence relating to the previous years. The Court in its opinion did that. We cannot say that a trial court in making a difficult determination of this type is limited to observing the conditions of the *254home and the conduct of the parents for any one period of time. It would seem to me always to be pertinent to consider the history of home conditions. The greater evidentiary detail by which such conditions are documented, the easier should be the court’s decision. To deprive the trial judge of these important tools is perhaps to force the exercise of his discretion by artificial game rules contrived by parties or their counsel.
The trial court in this case gave every indication of fairness to the natural parents. A circuit court, such as is involved here, acts as a criminal court, a domestic relations court, a juvenile court, and a court of general civil jurisdiction. The juvenile dockets are always crowded. It was the Department of Welfare’s dereliction in not securing an expeditious hearing on the matter of permanent custody. The trial court recognized this, and invalidated the February 16, 1972 hearing on statutory and constitutional grounds. The court offered to suspend later hearings to permit the defendants opportunity to gather additional rebuttal evidence. The court on September 7 and September 29 heard all of the testimony offered, and on October 6 entered an order continuing the case until it had opportunity to consider the evidence. It found in a carefully drawn opinion of October 27, that the Willises were unfit parents.
It is unfortunate that the case was in litigation for such a long period of time. On the other hand, the court obviously had more opportunity than normal to observe the parties and the witnesses, as well as having the advantage of being a trial judge involved in many similar proceedings in the same locality.
In view of all of this, it seems incongruous to me that we can recognize the trial court’s discretion in making this finding, restating the rule that its finding will not be disturbed unless at variance with undisputed evidence or contrary to the plain preponderance of the whole evidence, and not uphold it. In my view, the findings of *255the trial court are supported by clear, cogent and convincing evidence. I cannot visualize a set of circumstances less conducive to the proper welfare of a child than those reported in this case. It is trite to say perhaps, that this has nothing to do with the fact that the Willises are on welfare or are economically poor. Poverty is not a basis of finding unfavorable family conditions. Families in dire economic circumstances frequently create for themselves the warmest, most sensitive and rewarding intra-family relationships. Who knows but what that may be the best environment in which a child can be reared. Parents of any status who so neglect their children could be deprived of their custody. Neither poverty nor opulence is an excuse for such gross neglect of children. Each case must be decided on its own facts regardless of the status of the parents.
I agree with the general statements concerning the doctrine of parens patriae and the doctrine relating to the rights of natural parents to custody of their children. I disagree, however, with what I consider to be an erroneous juxtaposition of these doctrines. It is clear that natural parents have rights superior to others in the absence of clear, cogent and convincing proof that the parents are unfit or have voluntarily relinquished their rights to a child. This does not mean, however, that the rights of a natural parent are superior to the rights of the child. No principle of law would suggest that. Once a determination is made that the parent is unfit, there is not involved a question of the rights of the State as opposed to the rights of the parents, but the rights of the child as opposed to the rights of the parents or perhaps more simply, the rights of the child disregarding any residuary feelings of the parents.
Once it was demonstrated by competent evidence that the parents were unfit, there could then be considered evidence of any matter affecting the welfare of the child. It was here that the trial court properly considered the fact that the child had been in the custody of foster parents from the time he was eight months old until he *256was five and one-half years old. This was not necessary to sustain the finding of unfitness, nor was it made solely in that respect. Once, however, unfitness had been determined, the trial court was faced with the task of ruling on the totality of the case, including the question of custody to the Department of Welfare.
My colleagues, of course, are sensitive to this aspect of the case, and realize as readily as I the tragic possibility of the scars inflicted upon this child because of his being taken from warmth and security to possible or probable insecurity. I cannot believe that justice is served by making this kind of human impact by syllogistic reasoning as to what point of time in a proceeding evidence will be received concerning the fitness of parents or that otherwise legitimate evidence should not be received because the Department of Welfare was negligent in not timely obtaining a hearing on the question of permanent custody. I also believe that the majority opinion would overly extend the great constitutional protection given to parents who have not, through their actions, lost their natural rights to those who are mere biological parents and have abandoned all claims to human dignity. Merely biological breeding without the sanctity of familial relationship of love, human dignity and respect is certainly not deserving of the blessings of constitutional protection. It is vitally important to distinguish in the application of this law between the fit and the unfit parents. Admittedly, it is seldom an easy chore. In drawing the difficult line, a court can only be guided by the question — how will the alleged unfit parent affect the child? The mere animal instinct of some affection to an offspring is not enough. The parents in this case evinced little more than that.
I do not believe that Syllabus 1 of the opinion completely states the law. In addition, the last line of Syllabus 8 confuses an otherwise proper statement of law. I agree with the statement of Syllabus 4, except that *257part which indicates that the passage of time, coupled with the due process omissions of the State, make an otherwise initially legal act void ab initio.
Finally, I am not clear whether the majority opinion would dispose of the adoption proceedings pending at the time this case was decided by virtue of the last paragraph of the opinion relating to the principles of res judicata. If so, I disagree with that application of the doctrine of res judicata. The parties and issues were identical in both proceedings in State ex rel. West Virginia Department of Public Assistance v. See, 145 W.Va. 322, 115 S.E.2d 144. That holding, therefore, would not govern prospective adoption proceedings in this case. The prospective adoptive parents of Ronald Lee Willis were not parties to this proceeding and the issue of their previous prolonged custody of the child and similar issues were not considered.