                                                                                  FILED
                                                                               June 17, 2020
No. 18-0780, Michael N. v. Brandy M. and Allen M.                                released at 3:00 p.m.
                                                                             EDYTHE NASH GAISER, CLERK

ARMSTEAD, Chief Justice, dissenting:                                         SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


              The West Virginia Legislature has clearly recognized that a child born during

the course of a marriage is presumed to be a child of such marriage. In West Virginia Code

§ 48-24-101 (2012), the Legislature explicitly outlined when a party has standing to

determine paternity of a child contrary to such presumption. Because the majority opinion

has extended a right to Petitioner that is not contemplated by this statute, I am compelled

to dissent. Instead of striking down the statute as unconstitutional and requiring the

Legislature to correct its infirmities, this Court has simply written its solution into the

statute. While I acknowledge that in 1996 this Court determined such statute arguably did

not protect a putative biological father’s constitutional rights to establish paternity, 1 the

Court exceeded its authority by essentially rewriting the statute.



              The issue in this matter is whether this Court should allow a man to assert

paternity to children born of a woman married to another man. This issue must be viewed

in its historical context. “At common law a child born or conceived during marriage was

conclusively presumed to be legitimate. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941).

The rule was recognized and applied in State v. Reed, 107 W.Va. 563, 149 S.E. 669




              1
               The entirety of Chapter 48A of the West Virginia Code was repealed and
reenacted by the Legislature in 2001. Previously, this statute was codified in West Virginia
Code § 48A-6-1 (1993). Stone references the prior version of the statute, which remains
unchanged after its reenactment and 2002 amendments.

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(1929).” State ex rel. J. L. K. v. R. A. I., 170 W. Va. 339, 341, 294 S.E.2d 142, 144 (1982).

“The common law ‘presumption was so absolute that the doctrine of filiato non potest

probaris applied, and no proofs would be received to dispute the legitimacy of the

child.’ Powell v. State, 84 Ohio St. 165, 95 N.E. 660, 661 (1911), overruled on other

grounds, State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944).” Id., 170

W. Va. at 342, 294 S.E.2d at 145 (internal footnote omitted). In J. L. K., the Court found

that:

                     The common law rule can thus be viewed as a protective
              device for both the child and mother so that the label “bastard”
              would not stigmatize the child, nor would the mother's
              reputation be tarnished. Moreover, the common law rule
              upheld the integrity of the family because it was the family
              which was the basic social and economic fabric which bound
              society together.

Id.



              Over time, the common law has been modified by the Legislature. See id.,

170 W. Va. at 341 n.2, 294 S.E.2d at 144 n.2. The present statute at issue provides standing

for specific individuals by which a paternity action may be prosecuted:

              (1) An unmarried woman with physical or legal custody of a
              child to whom she gave birth;
              (2) A married woman with physical or legal custody of a child
              to whom she gave birth, if the complaint alleges that:
              (A) The married woman lived separate and apart from her
              husband preceding the birth of the child;
              (B) The married woman did not cohabit with her husband at
              any time during such separation and that such separation has
              continued without interruption; and
              (C) The respondent, rather than her husband, is the father of
              the child;

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              (3) The state of West Virginia, including the bureau for child
              support enforcement;
              (4) Any person who is not the mother of the child but who has
              physical or legal custody of the child;
              (5) The guardian or committee of the child;
              (6) The next friend of the child when the child is a minor;
              (7) By the child in his or her own right at any time after the
              child’s eighteenth birthday but prior to the child’s twenty-first
              birthday; or
              (8) A man who believes he is the father of a child born out of
              wedlock when there has been no prior judicial determination
              of paternity.

W. Va. Code § 48-24-101(e) (2012). This statute was declared unconstitutional, in part, in

State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996), but was allowed

to stand because this Court:

              recognize[d] the importance of this statute. Therefore, rather
              than rendering the entire statute unenforceable, we apply the
              doctrine of the least intrusive remedy and hold that the Due
              Process Clause of the West Virginia Constitution requires
              courts to hear and decide, under the guidelines we set out
              below, paternity actions brought by a putative biological father
              of a child born to a married woman who is not his wife.

Stone, 196 W. Va. at 637, 474 S.E.2d at 567. Like this Court twenty-four years ago, I

believe this statute remains important to the well-being of children involved in such cases.

The traditional reasons for limiting who may establish paternity still apply today, as do the

reasons for the paternity presumption. That importance is not outweighed by a putative

biological father’s assertion of a right to establish paternity to children who are born to a

woman who is married to another. See id., 196 W. Va. at 635, 474 S.E.2d at 565. The

majority opinion has again strayed from the bedrock constitutional principle that enacting

laws is the province of the Legislature, and that we should apply the clear language of


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statutes, unless such statutes are unconstitutional. See Syllabus Point 2, State v. Epperly,

135 W. Va. 877, 65 S.E.2d 488 (1951); Syllabus Point 1, Dunlap v. State Compensation

Director, 149 W. Va. 266, 140 S.E.2d 448 (1965); Syllabus Point 1, State v. Elder, 152 W.

Va. 571, 165 S.E.2d 108 (1968); Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714,

172 S.E.2d 384 (1970); See also Appalachian Power Co. v. State Tax Dep’t of West

Virginia, 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995) (“We look first to the statute’s

language. If the text, given its plain meaning, answers the interpretive question, the

language must prevail and further inquiry is foreclosed.”).

                      This Court does not sit as a superlegislature,
              commissioned to pass upon the political, social, economic or
              scientific merits of statutes pertaining to proper subjects of
              legislation. It is the duty of the legislature to consider facts,
              establish policy, and embody that policy in legislation. It is the
              duty of this court to enforce legislation unless it runs afoul of
              the State or Federal Constitutions.

Boyd v. Merritt, 177 W.Va. 472, 474, 354 S.E.2d 106, 108 (1986).

              In Stone, this Court asserted the constitutional right of a putative biological

father to bring a paternity action. However, instead of declaring the enabling statute

unconstitutional and permitting the Legislature to modify it to cure such deficiency, this

Court encroached upon the Legislature’s authority and rewrote the statute. The Court did

so by adding its own language that allow a putative biological father to bring a paternity

action:

                      Although an unwed father’s biological link to his child
              does not, in and of itself, guarantee him a constitutional stake
              in his relationship with that child, such a link combined with a
              substantial parent-child relationship will do so. When an
              unwed father demonstrates a full commitment to the

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              responsibilities of parenthood by coming forward to participate
              in the rearing of his child, his interest in personal contact with
              his child acquires substantial protection under the Due Process
              Clause in Section 10 of Article III of the West Virginia
              Constitution.

Syllabus Point 2, Stone. This Court added its own legal framework and essentially

“legislated” how a putative biological father could proceed in a paternity suit:

                     A putative biological father must prove by clear and
              convincing evidence the following factors before he will have
              standing to raise the issue of paternity of a child born to a
              married woman who is not his wife: (1) that he has developed
              a parent-child relationship with the child in question, and (2)
              that the child will not be harmed by allowing the paternity
              action to proceed.

Syllabus Point 6, Stone.



              The Court started down a slippery slope by diverging from the express text

and the well-established purpose behind the statute. That slope has lead us to the further

departure from the statutory language that the majority has now embraced. The majority

opinion adds additional language to the statute by finding that special circumstances exist

allowing an expansion of Stone and holding:

              [A] petition by a putative biological father seeking to establish
              his paternity over a child who was born while the mother was
              married to another man satisfies the “special circumstances”
              exception in Syllabus point 3 of State ex rel. Roy Allen S. v.
              Stone, 196 W. Va. 624, 474 S.E.2d 554, if he is able to clearly
              and convincingly prove as a threshold matter that a paternal
              relationship had been initiated and he would have obtained a
              substantial paternal relationship with the child but was
              prevented from further development of the relationship due to
              the conduct of others. To achieve such standing, the putative
              biological father must allege and prove that he would share in

                                              5
              the care of, responsibility for, and support of the child but for
              the conduct of others that prevented him from doing so.
              Additionally, the putative biological father must prove by clear
              and convincing evidence, and in accordance with Stone, that
              the child will not be harmed by allowing the paternity action to
              proceed. Furthermore, the putative biological father must not
              be dilatory in bringing the paternity establishment action; he
              must bring such action within a reasonable time after he knows
              or should know that there is a basis to believe he is the child’s
              biological father. Finally, we reiterate that these types of
              matters must always be examined on a case-by-case basis with
              respect to the specific facts of each case.

Michael N. v. Brandy M. and Allen M., No. 18-0780, slip op. at 25-6, ___ W. Va. ___, ___,

___ S.E.2d ___, ___ (W. Va., June 17, 2020) (internal footnote omitted). None of these

newly “legislated” requirements are found in the statute. I firmly believe the statutory

issues raised in this matter must be addressed by the Legislature, rather than this Court.



              Further, the majority opinion does not adequately address concerns raised by

the circuit court regarding the best interests of the children. This Court previously stated

in a paternity context that “[o]n numerous previous occasions, this Court has voiced its

opinion that the 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). The circuit court correctly heeded caution in Stone that “[i]f the putative

father’s intrusion into the family, or into an established parent-child relationship, would

cause undue disruption and, thus, jeopardize the child’s proper development, the court

could consider that as a basis for denying relief.” Stone, 196 W. Va. at 636-37, 474 S.E.2d

at 566-67. Accordingly, the circuit court recognized:


                                              6
                      Notwithstanding the contention that other children in
              the [Respondent’s] home, from the [Respondent’s] prior
              partners, exist, and that these children and their parents
              experience the related complexities of those prior
              relationships, the two children affected by this case do not
              currently face those obstacles. Nor have they been exposed to
              questions of whether the only Dad they have known is indeed
              their biological father.

 Based upon this serious concern, the circuit court concluded that Petitioner

              does not come to this court with clean hands. Evidence
              presented in the lower court plainly indicates [Petitioner] was
              aware that [Brandy M.] was married to another man at the time
              he engaged in the intimate relationship. He continued with this
              extra-marital relationship on separate occasions, across an
              expanse of time. Although he argues he believed [Brandy M.]
              intended to divorce [Allen M.], when it became obvious that
              was not her intention, he still chose to participate once again.
              Clearly, Petitioner lacked due respect for the relationship
              between the [Respondents], as well as the [Respondents’]
              family unit. He now disregards any risk of emotional or
              psychological harm to these children by asserting a claim of
              paternity and seeking a parental role following a significant
              period of absence.


              While I believe the majority opinion has attempted to provide safeguards

regarding the best interest of the children, its expansion of the Stone exceptions actually

undermines the long-established protections for children contained in the statute. These

reasons are precisely why it is the Legislature’s duty, rather than the Court’s responsibility,

to balance all of these interests and reform the statute.



              Accordingly, I dissent from the majority’s holding that special circumstances

exist for this Court to expand upon Stone, because I believe such expansion is an improper,


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Court-ordered, modification of West Virginia Code § 48-24-101(e) and because I believe

it undermines the safeguards imbedded in that statute to protect the best interests of the

children.




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