                                                                                  FILED
                                                                               June 18, 2020
No. 18-0780 -- Michael N. v. Brandy M. and Allen M.                          EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Hutchison, Justice, dissenting:

                In order to fashion a remedy for the petitioner Michael N., the majority

opinion has ignored the dictates of both the West Virginia Legislature and this Court’s

decision in State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 474 S.E.2d 554 (1996). Most

importantly, the majority has failed to adequately consider the very real harm that the

decision to allow this paternity action could inflict on the lives of these children.



                West Virginia Code § 16-5-10(f) (2006) directs that if a mother is married at

the time her child is conceived or born, her husband’s name shall be entered on the birth

certificate as the child’s father. 1 Brandy M. and Allen M. were married at the time of the

conception and birth of both of these children, and Allen M. is listed as the father on their



       1
           West Virginia Code § 16-5-10(f)(1) provides:

                (f) If the mother was married at the time of either conception
                or birth, or between conception and birth, the name of the most
                recent husband shall be entered on the certificate as the father
                of the child, unless:

                (1) Paternity has been determined otherwise by a court of
                competent jurisdiction pursuant to the provisions of article
                twenty-four, chapter forty-eight of this code or other applicable
                law, in which case the name of the father as determined by the
                court shall be entered on the certificate; . . . .

This statute goes on in subdivisions (f)(2) and (f)(3) to provide other avenues for specifying
paternity on a birth certificate, but those provisions do not apply in this case. See W.Va.
Code § 16-5-10(f)(5).

                                               1
birth certificates. Pursuant to this statute, a person must comply with the directives of

chapter forty-eight, article twenty-four of the West Virginia Code to establish paternity in

someone else. Id. 2



                As the majority opinion discusses, West Virginia Code § 48-24-101(e)

(2002) specifically lists who has standing to file an action to establish paternity. Notably

absent from the list is a putative biological father who seeks to establish his paternity of a

child born to a woman who is married to another man. Prohibiting standing in such

situations was a policy decision made by the Legislature. Regardless of whether I or other

members of this Court may agree or disagree with this policy choice, we are duty bound as

justices to apply a statute as written unless it is unconstitutional:

                        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.

Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).



                In order to reach a result favorable to the petitioner, the majority opinion

relies upon a very narrow exception to the standing requirement that was carved out in




       2
           See supra n. 1.
                                                2
Stone. Specifically, the Stone Court declared that West Virginia Code § 48-24-101(e) 3 is

unconstitutional as applied to a putative father who proves by clear and convincing

evidence that he has already established a substantial parental relationship with the child,

and the child would not be harmed by allowing the paternity action to proceed. See Syl.

Pts. 3 & 6, Stone. The Stone Court concluded that in those very narrow circumstances, the

standing statute violated the putative biological father’s right to Due Process under the

West Virginia Constitution, article III, section 10.



                   Critically, the petitioner herein has not already established a substantial

relationship with these children. At most, he spent a few months with O.M. while the child

was an infant, and he has never seen E.M. The Stone Court expressly “[left] for another

day” the question of whether there should be an additional constitutional exception created

for a putative father who alleges and proves that he would have developed such a

relationship with a child but for the mother’s repudiation of him. 196 W.Va. at 636, 474

S.E.2d at 566. Thus, although Stone expressly does not apply to the facts as alleged by

Michael N., the majority opinion has gone ahead and applied it anyway. 4




          3
              When Stone was decided, this statute was codified at West Virginia Code § 48A-
6-1(e).

          The majority opinion also makes the confusing statement that because of the
          4

disposition of the petitioner’s first assignment of error, which addressed standing under the
statute, the majority of the Court did “not find it necessary to consider the second
assignment of error” regarding the petitioner’s contention that the circuit court did “not
adequately consider[] his constitutional rights[.]” See Slip Op. p. 12. However, the only
                                                 3
              Furthermore, when declaring West Virginia Code § 48-24-101 partly

unconstitutional, the Stone Court recognized that “[m]erely identifying that a law affects

an individual liberty is not the end of the matter; our doctrines permit the State to intrude

upon liberties protected by the Due Process Clause when reasonably necessary to

accomplish a goal of countervailing importance.” 196 W.Va. at 633, 474 S.E.2d at 563.

Obviously, one of the legislative goals of the statute requiring that the husband’s name be

listed on the birth certificate, and of the statute denying a putative biological father standing

to challenge paternity when the child was born during the mother’s marriage to another

man, is the protection of an existing family unit. Another obvious goal is the protection of

the child’s welfare and best interests. “[T]he primary goal . . . in all family law matters,

must be the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.Va.

79, 479 S.E.2d 589 (1996); Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d

866, 872 (1989) (recognizing that “the best interests of the child is the polar star by which

decisions must be made which affect children”).



              In my opinion, Stone has gone as far on this issue as our Court should go.

Given the social policy issues involved, if there are to be additional exceptions to the

standing statute, the Legislature and not this Court should create them. It is notable that the

Legislature has amended West Virginia Code § 48-24-101 in the years since Stone was

decided, but this restriction on standing remains unchanged.


way that the petitioner could have standing in contravention of West Virginia Code § 48-
24-101 would be to declare the statute unconstitutional as applied to him.
                                               4
              Even assuming arguendo that the holding in Stone did apply to this case, it

is important to remember that there are two parts to the Stone test. To obtain paternity

testing, the putative biological father must prove by clear and convincing evidence the

existence of a substantial relationship with the child and that testing is in the best interests

of the child. Syllabus point 7 of Stone provides:

                     When a putative biological father raises a paternity
              claim, the child must be joined and a guardian ad litem
              appointed. The circuit court should conduct a preliminary
              hearing to determine whether the requisite preconditions are
              present. In addition, the preeminent factor in deciding whether
              to grant or deny blood testing is the child’s best interests. The
              analysis of each factual situation is necessarily a discretionary
              decision for the circuit court, and the finding by the circuit
              court will not be reversed absent an abuse of discretion.

(Emphasis added). The recognition of a putative parent’s biological relationship must never

be done at the expense of a child’s best interests. This is why Justice Cleckley, when

authoring Stone, set forth several factors in footnote 25 that a court could consider when

deciding whether to allow paternity testing:

                     Examples of factors that may be considered when
              conducting this two-step analysis include: (1) examining the
              child’s current home environment, (2) the on-going family
              relationship, (3) the child’s relationship with the putative
              father, (4) the child’s knowledge and reaction to paternity
              proceedings, (5) the putative father’s attempt to become
              involved in the child’s life, (6) whether the putative father
              acquiesced in allowing another to establish a father-child
              relationship, (7) when the putative father discovered he might
              be the biological father, (8) whether there is an existing child-
              parent relationship with the presumed father, and (9) whether
              ascertaining genetic information might be important for
              medical treatment or genealogical history. This is not an
              exhaustive list of factors that could be relevant. What is


                                               5
                  ultimately to be considered should be left to the discretion of
                  the circuit court [now family court].

196 W.Va. at 637 n.25, 474 S.E.2d at 567 n.25. These are factors for consideration when

deciding whether to allow paternity testing, not simply when deciding, post-testing,

whether a man who is determined to be the biological father should receive custody or

visitation. Id.



                  The majority opinion has given little consideration to the impact that this

paternity action might have on these children. The majority opinion purports to be

remanding the matter for the family court to hold a hearing on the children’s best interests,

but the family court has already held an evidentiary hearing and has already made findings

on this issue. After making those findings, the family court ordered the paternity testing to

go forward; it was only halted when the circuit court granted a writ of prohibition.



                  After considering the factors suggested in Stone footnote 25, I am convinced

that it would not be in the best interests of these children to allow the petitioner to pursue

this paternity action. Once testing is performed, the “bell cannot be unrung.” It will upend

the children’s current home environment, lives, and their ongoing relationship with Allen

M.—who is the only father they have ever known—if they are told that Allen M. might not




                                                6
be their dad, or if they are forced to travel across the country to visit a man whom they do

not know. 5



              The family court did “not believe it contrary to the best interests of the minor

children to be loved by as many caretakers as may be willing,” but this platitude obviously

does not always hold true, particularly when children are at the center of a contentious

dispute. The family court also decided that Brandy and Allen M.’s family life would not

be rendered “less harmonious” because there had already been at least two periods of

separation between them in the past (when Brandy went to Arkansas). However, that

finding only addresses the impact on the adults, not on the children. One child was an

infant, and one child was not even born, when Brandy M. spent that time in Arkansas,

therefore those periods of separation are irrelevant to an evaluation of the impact upon the

children. Instead of focusing on the rights of the adult, the best interests analysis requires

a court to focus on the children. I agree with the circuit court’s observations in its August

9, 2018, order:

              [The petitioner] has requested paternity testing as a predicate
              for arguing an allocation of custodial responsibility. In the
              proposed parenting plan submitted originally with the petition
              in this matter [the petitioner] outlines what he believes is
              appropriate contact with the children. Along with the contact
              comes a significant disruption of the only family these two
              children have known. The travel arrangements, periods of
              visitation, and holiday visits will have a substantial impact on
              the children. After a period of two years absence, allowing [the


       5
         In his petition to establish paternity, the petitioner submitted a proposed plan for
allocation of custodial responsibility.
                                              7
petitioner] to interfere with the children’s situation will
undoubtedly adversely impact the goal of the children’s
stability, certainly, and security—physically, psychologically,
and emotionally[.]


For all of the reasons set forth herein, I respectfully dissent.




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