No. 12-1138 – In Re: Timber M. and Reuben M.
                                                                                 FILED
                                                                                June 19, 2013

                                                                           RORY L. PERRY II, CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                             OF WEST VIRGINIA


Benjamin, Chief Justice, concurring, in part, and dissenting, in part:



              I concur with the majority’s decision to affirm the circuit court’s

termination of the mother’s parental rights to Timber M. and Reuben M. Also, I agree

with the majority’s decision to vacate the order that placed the children in the custody of

Kevin M. and to remand for further proceedings on the custody issue. However, I dissent

to the majority’s adoption of new syllabus point 6, because I believe that the majority

could have addressed the concerns regarding Kevin M. without formulating a new,

overly-broad syllabus point.



              As made clear in the majority opinion, there is ample authority supporting

this Court’s power to consider sua sponte issues not raised by the parties on appeal if it is

necessary to do so in the interests of justice. The interests of justice certainly include the

welfare of children. Therefore, the majority could have relied upon existing precedent to

vacate the custody order and remand for further proceedings.



              In addition, new syllabus point 6 is overly broad and, as such, is ripe for

abuse. According to the syllabus point, in order to protect the health and welfare of a

child in a custody case “the Court will take such action as it deems appropriate and


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necessary to protect the child.” However, any action taken by this Court to protect a

child is subject to a parent’s constitutional rights and principles of due process which is

not made clear in the syllabus point. Moreover, I am concerned that the broad language in

the syllabus point serves as an invitation to this Court to disregard long-settled standards

of review and to reverse a circuit court’s decision in an abuse and neglect case simply

because the Court would have decided the case differently.



              The majority’s decision with regard to Kevin M.’s custody of the children

is a troubling example of the operation of the new syllabus point. The majority’s decision

greatly affects Kevin M., yet he is not a party to this appeal and he did not have the

opportunity to address the majority’s concerns regarding the custody issue. Further, the

majority makes a significant finding regarding Kevin M.’s former conduct based on a

cold and apparently incomplete record and absent Kevin M.’s participation as a party

before the Court.



              In sum, it would have been preferable for the majority to craft a more

modest syllabus point that better reflects constitutional limitations on the Court’s

authority or simply to rely on existing precedent in addressing the issue of Kevin M.’s

custody of the children.



              For the reasons stated above, I concur with the majority’s disposition of this

case, but I dissent to the majority’s adoption of new syllabus point 6.

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