No. 12-0173 – In The Matter of Hunter H.
FILED
June 17, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WORKMAN, Justice, concurring, in part, and dissenting, in part:
I concur with the majority’s determination that, under the circumstances of this
case, continued visitation between the grandmother and the child was not appropriate.
However, I dissent from the majority’s reasoning because it shows a complete lack of
understanding of our existing body of law concerning the rights of children to continued
association.
While the majority gives lip service to the viability of the significant body of
law that this Court has developed on a child’s right to continued association, it effectively
ignores that body of law in the analysis of this case.
It is important to note that the certified question was very direct:
Does a child’s right to continued association with
individuals with whom he has formed a close emotional bond,
i.e. his maternal grandmother, continue post-adoption by non-
relatives, provided that a determination is made that such
continued association is in the best interests of the child?
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(Emphasis added). Notwithstanding the question posed by the circuit court, the majority
simply ignores the question.
I dissent from the majority’s absolute reliance on the Grandparent Visitation
Act (“the Act”), West Virginia Code §§ 48-10-101 to -1201 (2009). Such slavish reliance
solely on the foregoing statutory scheme is done with full abandonment of the well-
established law by this Court concerning the child’s right to continued association.
Succinctly stated, the majority opinion only addresses the rights of grandparents as set forth
in the Act and turns a blind eye to the rights of the child–rights that are wholly left
unaddressed by Legislature in the provisions of the Act and now by the majority of this
Court.
While the majority attempts to factually distinguish the instant case from some
of the Court’s earlier decisions involving continued association, they ignore an important
case wherein the rights of children to continued association first emerged. In Honaker v.
Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989), the natural father was challenging a six-
month transition period in connection with the restoration of full custody of his child back
to him. The child had been in the custody of her mother with reasonable visitation by the
natural father. Id. at 449-50, 388 S.E.2d at 323. The child’s mother remarried and the child
lived during this marriage with her mother, stepfather and half-brother. The natural father,
however, maintained his relationship with his daughter. Id. There was no contention or
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evidence that the natural father was unfit (or had abandoned his parental rights or
responsibilities). Id. But after the child’s natural mother was killed in an automobile
accident, pursuant to her will, she named the child’s stepfather as guardian and the natural
father sought custody of his daughter. Id. at 450, 388 S.E.2d at 323-24.
After the court set a six-month transition period, the father filed a petition for
writ of mandamus and/or prohibition with this Court seeking immediate custody. This Court
determined the natural father had a right to custody of his child, but also considered whether
it was in the child’s best interests to have a continued relationship with her stepfather and
half-brother. The Court stated that
[u]ndoubtedly, . . . [the child’s] best interests must be the
primary standard by which we determine her rights to continued
contact with other significant figures in her life. Clearly, “these
interests are interests of the child and not of the parent.
Visitation is, to be sure, a benefit to the adult who is granted
visitation rights with a child. But it is not the adult’s benefit
about which the courts are concerned. It is the benefit of the
child that is vital.” “Visitation is not solely for the benefit of the
adult visitor but is aimed at fulfilling what many conceive to be
a vital, or at least a wholesome contribution to the child's
emotional well being by permitting partial continuation of an
earlier established close relationship.” Looper v. McManus, 581
P.2d 487, 488 (Okla. Ct. App.1978).
Honaker, 182 W. Va. at 452, 388 S.E.2d at 325 (footnotes omitted). Additionally, the Court
stated:
The best interests of the child concept with regard to
visitation emerges from the reality that “[t]he modern child is
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considered a person, not a sub-person over whom the parent has
an absolute and irrevocable possessory right. The child has
rights . . . .” Another concern is “the need for stability in the
child’s life . . . . [T]ermination of visitation with individuals to
whom the child was close would contribute to instability rather
than provide stability.[”]
Id., 388 S.E.2d at 326 (footnotes omitted). Thus, the Court held that even though the custody
of the child should be with the natural parent absent proof of abandonment, misconduct or
neglect, “the child may have a right to continued visitation rights with the stepparent or half-
sibling.” Id. at 449, 388 S.E.2d at 323, Syl. Pt. 2, in part.
Thus, the Court upheld the right of continued association of a child with a step
father (not even a blood relative), even in the face of the very strong parental right of a
biological father.
Thereafter, in James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991),
the Court held in syllabus point four that
[i]n cases where there is a termination of parental rights,
the circuit court should consider whether continued association
with siblings in other placements is in the child’s best interests,
and if such continued association is in such child’s best
interests, the court should enter an appropriate order to preserve
the rights of siblings to continued contact.
Id. at 649, 408 S.E.2d at 401, Syl. Pt. 4. In so holding, the Court acknowledged the important
concept that “[t]rends both in social work and the law relating to child placement indicate an
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increased awareness of children’s rights to such continued association with siblings and other
meaningful figures.” Id. at 658, 408 S.E.2d at 410.
The Court further explained a child’s right to continued association in In re
Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995), a case which included not only the
right to continued association between siblings, but also a child’s right to a continued
association with his mother post-termination of the mother’s parental rights. We held in
Christina L. that
[w]hen parental rights are terminated due to neglect or
abuse, the circuit court may nevertheless in appropriate cases
consider whether continued visitation or other contact with the
abusing parent is in the best interest of the child. Among other
things, the circuit court should consider whether a close
emotional bond has been established between parent and child
and the child’s wishes, if he or she is of appropriate maturity to
make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the
child’s well being and would be in the child’s best interest.
Id. at 448, 460 S.E.2d at 694, Syl. Pt. 5 (emphasis added). Thus, once again in Christina L.,
like in Honaker, we reemphasized the importance of the visitation working in favor of the
child’s well-being and best interests, thereby implicitly recognizing that a court has an
obligation to facilitate a child’s right to human relationship when it is in his best interests.
Another case that is analogous to the instant case was In re Jonathan G., 198
W. Va. 716, 482 S.E.2d 893 (1996). In Jonathan G., the child was ultimately returned to the
legal custody of his natural parents after the child had been in the care and custody of foster
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parents for years. Upon the return of the child to his natural parents, the circuit court
determined that it had no basis upon which to order continued association between the foster
parents and Jonathon G. Id. at 734, 482 S.E.2d at 911. This Court disagreed with the circuit
court and remanded the case for proceedings to consider whether continued association
between the child and his foster parents was in the child’s best interests. Id. at 736, 482
S.E.2d at 913.
We stated in Jonathan G.:
The guiding principle relied upon by this Court in
recommending consideration of continued contact with a child
is whether a strong emotional bond exists between the child and
an individual such that cessation in contact might be harmful to
the child, both in its transitory period of adjusting to a new
custodial arrangement and in its long-term emotional
development. We find no reason to except individuals, like the
Stems, who have had a successful long-term relationship with a
foster child and have been found, in fact, to be psychological
parents to Jonathan G., from consideration for such continued
association.
Id. at 735, 482 S.E.2d at 912. Additionally, we recognized that
while “[t]here is little uniformity in the case law concerning
nonparental visitation over the objection of a biological or
adoptive parent, . . . some courts have observed a judicial trend
toward considering or allowing visitation to nonparents who
have a parent-like relationship with the child if visitation would
be in the best interest of the child.”
Id. (quoting in In re Custody of H.S.H.K., 533 N.W.2d 419, 435 n.37 (Wis.), cert. denied sub
nom. Knott v. Holtzman, 516 U.S. 975(1995)) (emphasis added).
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Thus, we held in syllabus point eleven of Jonathon G. that “[a] child has a right
to continued association with individuals with whom he has formed a close emotional bond,
including foster parents, provided that a determination is made that such continued contact
is in the best interests of the child.” Jonathan G., 198 W. Va. at 720, 482 S.E.2d at 897, Syl.
Pt. 11; see also In re Clifford K., 217 W. Va. 625, 646, 619 S.E.2d 138, 159 (2005) (“We
would be remiss if we did not also reiterate that ‘[a] child has rights, too, some of which are
of a constitutional magnitude.’ Lemley [v. Barr], 176 W. Va. [378] at 386, 343 S.E.2d [101]
at 109 [(1986)] (internal quotations and citations omitted). Among these, ‘[a] child has a
right to continued association with individuals with whom he has formed a close emotional
bond . . . provided that a determination is made that such continued contact is in the best
interests of the child.’ Syl. pt. 11, in part, In re Jonathan, 198 W. Va. 716, 482 S.E.2d 893.
Accord Snyder v. Scheerer, 190 W. Va. [64] at 72, 436 S.E.2d [299] at 307 [(1993)]
(recognizing ‘the right of a child to continued association with those individuals to whom the
child has formed an attachment’). In this regard, ‘[t]he length of time that the child has
remained with [such individual(s)] is a significant factor to consider in determining this
issue.’ In re Jonathan, 198 W. Va. at 736 n. 41, 482 S.E.2d at 913 n. 41.”).
This Court has clearly held that, even when biological parental rights are
involved, a child’s right to continued relationship with non-parents can prevail.
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Notwithstanding the foregoing precedent set forth by this Court regarding a
child’s right to continued association with individuals with whom the child has significant,
strong emotional bonds, the majority, with its slavish devotion only to the law of the statutes,
holds in syllabus points one, two and three as follows:
The Grandparent Visitation Act, W. Va. Code § 48-10
101 et seq. [2001], is the exclusive means through which a
grandparent may seek visitation with a grandchild.
The best interests of the child are expressly incorporated
into the Grandparent Visitation Act in W. Va. Code §§ 48-10
101, 48-10-501, and 48-10-502 [2001].
Pursuant to W. Va. Code § 48-10-902 [2001], the
Grandparent Visitation Act automatically vacates a grandparent
visitation order after a child is adopted by a non-relative. The
Grandparent Visitation Act contains no provision allowing a
grandparent to file a post-adoption visitation petition when the
child is adopted by a non-relative.
While there is no question that these three new syllabus points address the rights of the
grandparent, the majority’s decision is devoid of any significant discussion about the rights
of a child.
Finally, while the majority holds in the third new syllabus point that the
visitation rights of grandparents are automatically vacated after a child is adopted by a non-
relative pursuant to the provisions of West Virginia Code § 48-10-902, neither the majority,
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nor the Legislature, has addressed the rights of the child. Despite what may happen to the
rights of the grandparents in this case, the child, nevertheless, has a continued right to
association with individuals with whom the child has strong emotional bonds so long as that
continued association is in the child’s best interests and is not detrimental to the parent-child
relationship.
Let there be no mistake that upholding a child’s right to continued association
does not always mean always granting the visitation sought. In the instant case, while the
guardian ad litem argued that the child desired continued association with his grandmother,
the facts did not warrant the circuit court upholding the continued association as in the
child’s best interests. There was information offered by the guardian ad litem that
demonstrated that the grandmother was interfering in a manner that was detrimental to the
child’s well-being.1 This was demonstrated by the grandmother insisting on overnight
1
Visitation in conjunction with continued association with a child is analogous to
shared parenting insofar as it necessitates a high degree of cooperation between the parties
involved in order to be successful. See generally W. Va. Code §§ 48-9-101 to -604 (2009
& Supp. 2012). Included in this statutory scheme relating to the allocation of custodial
responsibility and decision making responsibility of children is certain criteria that focuses
upon the level of cooperation necessary to serve the best interests of the child. Specially,
West Virginia Code § 48-9-102 (a) provides:
(a)The primary objective of this article is to serve the child’s
best interests, by facilitating:
(1) Stability of the child;
(2) Parental planning and agreement about the child’s custodial
(continued...)
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visitation despite the child being sick and on medication. There was also information that
the grandmother’s attorney was demanding that the adoptive parents provide a physician’s
order showing the diagnosis, as well as the prescription. Further, there was indication that
the grandmother was allowing the child to visit the child’s biological mother, whose rights
had been terminated. This conduct on the grandmother’s part not only circumvented the
wishes of the parents, but also violated the circuit court’s order terminating the biological
mother’s parental rights. This pattern of behavior obviously indicated a contentious
relationship between parents and the grandmother which was not in the child’s best interests.
Thus, in the analytical framework of the law relative to a child’s right to continued
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(...continued)
arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each parent;
(5) Caretaking relationships by adults who love the child, know
how to provide for the child's needs, and who place a high
priority on doing so;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of
prolonged uncertainty respecting arrangements for the child's
care and control.
Id.; see Tevya W. v. Elias Trad V., 227 W. Va. 618, 623, 712 S.E.2d 786, 791 (2011) (“[T]he
paramount consideration must be the best interests of the child. It is the ‘public policy of this
State to assure that the best interest of children is the court’s primary concern in allocating
custodial and decision-making responsibilities between parents who do not live together.’
Id. at § 48–9–101(b).”); Skidmore v. Rogers, 229 W. Va. 13, 19, 725 S.E.2d 182, 188
(2011)(recognizing that “the Legislature set forth several overarching goals for courts to
follow in determining custody arrangements[]” by enacting West Virginia Code § 48-9-102).
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association the child’s best interests must remain the polar star and the grandmother could
not prevail.
For the foregoing reasons, I concur with the result reached by the majority
insofar as it disallows visitation with the grandparent in this case. I dissent, however, from
reasoning used by the majority in reaching its result.
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