        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2020 Term

                                   _______________                     FILED
                                     No. 18-0832
                                                                     April 6, 2020
                                                                       released at 3:00 p.m.
                                   _______________                 EDYTHE NASH GAISER, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA
                                   TERRENCE E.,
                              Respondent Below, Petitioner

                                          V.

                      CHRISTOPHER R. AND JULIE R.,
                        Petitioners Below, Respondents
               _____________________________________________

                  Appeal from the Circuit Court of Cabell County
                    The Honorable Christopher Chiles, Judge
                            Civil Action No. 17-CIG-1

                        REVERSED AND REMANDED
               _____________________________________________

                              Submitted: February 18, 2020
                                  Filed: April 6, 2020

Michael M. Cary                                Allison K. Huson
Charleston, West Virginia                      Huntington, West Virginia
Attorney for the Petitioner                    Attorney for the Respondents

Krista Conway
Conway Law Office
Huntington, West Virginia
Guardian ad Litem


JUSTICE JENKINS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1. “‘“‘The exercise of discretion by a trial court in awarding custody of a

minor child will not be disturbed on appeal unless that discretion has been abused;

however, where the trial court’s ruling does not reflect a discretionary decision but is based

upon an erroneous application of the law and is clearly wrong, the ruling will be reversed

on appeal.’ Syl. pt. 2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570 (1975),

superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W. Va.

57, 385 S.E.2d 912 (1989).” Syl. Pt. 1, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d

300 (2008)[, superseded by statute on other grounds as stated in In re Antonio R.A., 228

W. Va. 380, 719 S.E.2d 850 (2011)].’ Syl. Pt. 2, In re Antonio R.A., 228 W. Va. 380, 719

S.E.2d 850 (2011).” Syllabus point 2, In re Guardianship of A.C., 240 W. Va. 23, 807

S.E.2d 271 (2017).



              2. “A family or circuit court’s authority to appoint a suitable person as a

guardian for a minor, including a minor above the age of fourteen, is derived from West

Virginia Code § 44-10-3 (2010), which grants courts discretion in determining when the

appointment of a guardian for a minor is appropriate[.]” Syllabus point 5, in part, In re

Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850 (2011).




                                              i
              3. “A parent has the natural right to the custody of his or her infant child and,

unless the parent is an unfit person because of misconduct, neglect, immorality,

abandonment or other dereliction of duty, or has waived such right, or by agreement or

otherwise has transferred, relinquished or surrendered such custody, the right of the parent

to the custody of his or her infant child will be recognized and enforced by the courts.”

Syllabus, Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960).



              4. “While courts always look to the best interests of the child in controversies

concerning his or her custody, such custody should not be denied to a parent merely

because some other person might possibly furnish the child a better home or better care.”

Syllabus point 3, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975).



              5. “Although parents have substantial rights that must be protected, the

primary goal . . . in all family law matters . . . must be the health and welfare of the

children.” Syllabus point 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).




                                              ii
Jenkins, Justice:

              The petitioner, Terrence E. 1 (“Father”), appeals from the August 21, 2018

order entered by the Circuit Court of Cabell County. The circuit court’s order denied

Father’s request to terminate 2 the guardianship of the respondents, Christopher R. and Julie

R. (“the Guardians”), maternal grandparents and current guardians of Father’s child, K.E.

In its ruling, the court determined that Father had not demonstrated a “material change of

circumstances” as required by West Virginia Code section 44-10-3(j) (LexisNexis 2014)

to support a termination of the current guardianship. On appeal to this Court, Father argues

that he has satisfied the statutory criteria for the termination of his child’s guardianship and

that, as the child’s biological father, he has a superior right to her custody as compared to

the Guardians. Upon a review of the parties’ arguments and briefs, the appendix record

and its supplement, and the pertinent authorities, we conclude the circuit court erred by

requiring Father to demonstrate a “material change of circumstances” in order to terminate

the existing guardianship. Accordingly, we reverse the circuit court’s ruling and remand

this case to the circuit court to determine whether the current guardianship should continue

or whether the child’s custody should be returned to one or both of her parents.




              1
                 Given the sensitive facts involved in this case, we will refer to the adult
parties by their first names and last initials and the minor subject to these guardianship
proceedings by her initials only. See W. Va. R. App. P. 40(e) (restricting use of personal
identifiers in cases involving children); In re I.M.K., 240 W. Va. 679, 682 n.1, 815 S.E.2d
490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016).
              2
                  See infra note 3 regarding the nature of the relief sought by Father.


                                                1
                                             I.

                       FACTS AND PROCEDURAL HISTORY

              In 2017, Kathryn R. (“Mother”) and Father were charged with child abuse

and neglect of K.E. The petition primarily alleged that Mother, as a result of her substance

abuse and addiction, had abused and/or neglected K.E. and that Father had failed to protect

K.E. from Mother’s substance abuse. Later, Father also was charged with failure to provide

support because he was delinquent in his child support payments. Eventually, the circuit

court found that both parents had corrected the conditions constituting abuse and/or neglect

and returned custody of K.E. to Mother and Father. The court also entered a parenting

order that gave primary custody of K.E. to Mother and visitation to Father, including two

overnight weekend visitations per month.



              The following month, November 2017, Mother was arrested; charged with a

violation of the conditions of her release and possession with the intent to deliver heroin;

and incarcerated. As a result of Mother’s incarceration, Guardians, who are Mother’s

parents, filed a petition to be appointed guardians of the child. Father claims that he was

not notified of Mother’s arrest or of the guardianship petition until after the petition had

been granted on an emergency basis and a temporary guardianship hearing had been

scheduled. With counsel, Father appeared at the temporary guardianship hearing, objected

to the Guardians’ appointment as the child’s guardian, and requested custody. Mother

consented to the guardianship, and the circuit court entered a temporary order appointing

the maternal grandparents as Guardians of K.E.


                                             2
              During a subsequent hearing in January 2018, Father, by counsel, again

objected to the guardianship and requested custody of his child. Ultimately, Father agreed

that, because the child was doing well in school and it would be disruptive to change her

school during the middle of the school year, continuation of the guardianship through the

end of the school year would be in the child’s best interest. It was suggested, however, that

the guardianship arrangement could be reexamined at the end of the school year. The

circuit court entered an order on February 20, 2018, finding it to be in the child’s best

interests to grant the maternal grandparents’ (Guardians’) petition to be named as her

guardians and to continue Father’s visitation pursuant to the parenting order entered at the

end of the abuse and neglect proceedings. Father did not appeal from this order.



              In April 2018, Father filed a petition to modify 3 the Guardians’ guardianship.

Pursuant to West Virginia Code section 44-10-3(j),

                     [f]or a petition to revoke or terminate a guardianship
              filed by a parent, the burden of proof is on the moving party to
              show by a preponderance of the evidence that there has been a
              material change of circumstances and that a revocation or
              termination is in the child’s best interest.

To support his petition, Father stated:




              3
                Because Father sought custody of his child and the statute governing
guardianships addresses only the termination or revocation of a guardianship, and not the
modification of a guardianship, we will treat Father’s request as a petition to terminate the
Guardians’ guardianship. See W. Va. Code § 44-10-3(j) (LexisNexis 2014) (describing
procedure for “a petition to revoke or terminate a guardianship filed by a parent”).


                                              3
              A change in circumstances has occurred because [Father] has
              systematically shown this Court that he is a fit parent and can
              provide the proper care and stability for the minor child.

              At the filing of this Petition, the biological mother is
              incarcerated and unable to provide adequate care for the minor
              child.

              [Father] has no criminal history.[4] Therefore, it is in the best
              interests of the minor child to be under the care, custody, and
              control of the biological father.

              Furthermore, [Father] recently switched to day shift at his
              place of employment to accommodate the minor child’s school
              schedule and to ensure he will be available when she is getting
              out of school.

(Footnote added). The Guardians objected to Father’s motion, and the circuit court held

hearings on the matter.



              By order entered August 21, 2018, the circuit court denied Father’s motion

to terminate the Guardians’ guardianship and continued the child’s placement in their care.

The circuit court ruled as follows:

                     The Court FINDS that there has not been a substantial
              change of circumstances warranting any modification of the
              current guardianship[,] and the Petition for Modification shall
              be dismissed. The Court further FINDS it is in the best
              interests of the minor child for the guardianship to remain.



              4
                The parties differ as to whether this statement concerning Father’s criminal
history is factually accurate. Because we are remanding this case to the circuit court for
further proceedings, the veracity of this statement and its impact on Father’s fitness to
parent his child as well as on the child’s best interests should be considered by the circuit
court in rendering its ruling.


                                              4
In summary, the circuit court ordered that “[t]he minor child shall remain in her current

guardianship,” but also ordered that K.E. “shall continue to have visitation [with Father] as

in the prior order.” From this order, Father appeals to this Court.



                                             II.

                               STANDARD OF REVIEW

              The sole issue presented by this appeal is whether the guardianship

appointing the child’s maternal grandparents as her Guardians should continue or whether

Father is entitled to the custody of his child. Our review of the circuit court’s ruling

continuing the guardianship order is governed by the following standards of review. First,

when reviewing decisions rendered by a circuit court, we are guided by our holding in

Syllabus point 4 of Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996): “This

Court reviews the circuit court’s final order and ultimate disposition under an abuse of

discretion standard. We review challenges to findings of fact under a clearly erroneous

standard; conclusions of law are reviewed de novo.” See also Syl. pt. 1, McCormick v.

Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) (“When this Court reviews

challenges to the findings and conclusions of the circuit court, a two-prong deferential

standard of review is applied. We review the final order and the ultimate disposition under

an abuse of discretion standard, and we review the circuit court’s underlying factual

findings under a clearly erroneous standard.”).




                                              5
              With specific respect to a circuit court’s order concerning a minor child’s

custody, we previously have held that

                      “‘“[t]he exercise of discretion by a trial court in
              awarding custody of a minor child will not be disturbed on
              appeal unless that discretion has been abused; however, where
              the trial court’s ruling does not reflect a discretionary decision
              but is based upon an erroneous application of the law and is
              clearly wrong, the ruling will be reversed on appeal.” Syl. pt.
              2, Funkhouser v. Funkhouser, 158 W. Va. 964, 216 S.E.2d 570
              (1975), superseded by statute on other grounds as stated in
              David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912
              (1989).’ Syl. Pt. 1, In re Abbigail Faye B., 222 W. Va. 466,
              665 S.E.2d 300 (2008)[, superseded by statute on other
              grounds as stated in In re Antonio R.A., 228 W. Va. 380, 719
              S.E.2d 850 (2011)].” Syl. Pt. 2, In re Antonio R.A., 228 W. Va.
              380, 719 S.E.2d 850 (2011).

Syl. pt. 2, In re Guardianship of A.C., 240 W. Va. 23, 807 S.E.2d 271 (2017). See also

Syl. pt. 4, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975) (“Although the

exercise of discretion by a trial court in awarding custody of a child will not ordinarily be

disturbed, when it clearly appears that such discretion has been abused, the decision

awarding custody will be reversed.”).



              Finally, because guardianship matters are governed by statutory law in this

State, we further accord a plenary review to the circuit court’s interpretation and

application of the relevant statute. “Where the issue on an appeal from the circuit court is

clearly a question of law or involving an interpretation of a statute, we apply a de novo

standard of review.” Syl pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d

415 (1995). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195



                                              6
W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or

regulation presents a purely legal question subject to de novo review.”). With these

standards in mind, we proceed to consider the parties’ arguments.



                                             III.

                                       DISCUSSION

              In his appeal to this Court, Father contends that the Guardians’ role as

guardians of his minor child should be terminated and that he, as K.E.’s biological father,

should be awarded her custody. The Guardians counter that Father has not demonstrated

a “material change of circumstances” as required by West Virginia Code section 44-10-

3(j) to terminate or revoke their guardianship. To determine which custodial arrangement

serves the child’s best interests, we must examine both the guardianship statute and the

circuit court’s order applying the guardianship statute to the facts of this case.



              Guardianship of a child in West Virginia is governed by statute:

                     A family or circuit court’s authority to appoint a suitable
              person as a guardian for a minor, including a minor above the
              age of fourteen, is derived from West Virginia Code § 44-10-3
              (2010), which grants courts discretion in determining when the
              appointment of a guardian for a minor is appropriate[.]

Syl. pt. 5, in part, In re Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850. Specifically, West

Virginia Code section 44-10-3(f) provides that

                    [t]he court may appoint a guardian for a minor if the
              court finds by clear and convincing evidence that the
              appointment is in the minor’s best interest and:


                                               7
                     (1) The parents consent;

                     (2) The parents’ rights have been previously terminated;

                     (3) The parents are unwilling or unable to exercise their
              parental rights;

                     (4) The parents have abandoned their rights by a
              material failure to exercise them for a period of more than six
              months; or

                      (5) There are extraordinary circumstances that would,
              in all reasonable likelihood, result in serious detriment to the
              child if the petition is denied.

If the factors enumerated in subsection (f) are not present, or have not been considered, the

resulting guardianship is temporary in nature:

                     Whether or not one or more of the conditions of
              subsection (f) have been established, the court may appoint a
              temporary guardian for a minor upon a showing that an
              immediate need exists or that a period of transition into the
              custody of a parent is needed so long as the appointment is in
              the best interest of the minor. The temporary guardian has the
              authority of a guardian appointed pursuant to subsection (f) but
              the duration of the temporary guardianship may not exceed six
              months. A temporary guardianship may be extended beyond
              six months upon further order of the court finding continued
              need in the best interest of the minor.

W. Va. Code § 44-10-3(g). Finally, pursuant to subsection (h),

                     [a]ny suitable person may be appointed as the minor’s
              guardian. A parent shall receive priority subject only to the
              provisions of subsections (d)[5] and (f) above. However, in

              5
                Subsection (d) does not apply to the facts of this case because there are no
other, contemporaneous proceedings concerning K.E.’s custody. See W. Va. Code § 44-
10-3(d) (“Any responsible person with knowledge of the facts regarding the welfare and
best interests of a minor may petition for an appointment of a guardian except a parent or
other person whose rights to the minor have been terminated. No guardianship petition

                                              8
              every case the competency and fitness of the proposed
              guardian must be established and a determination made that the
              appointment is in the best interest of the child.

W. Va. Code § 44-10-3(h) (footnote added).



              To determine whether the circuit court’s order continuing K.E.’s

guardianship placement with the Guardians was correctly entered, we must consider the

law governing guardianship proceedings. As we noted above, statutory law, specifically

West Virginia Code section 44-10-3, governs the appointment of guardians; therefore, our

consideration of this issue is guided by the rules of statutory construction. When examining

a statute to determine its meaning, we previously have held that “[t]he primary object in

construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt.

1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).

Additionally, “[a] statutory provision which is clear and unambiguous and plainly

expresses the legislative intent will not be interpreted by the courts but will be given full

force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).

Similarly, “[i]t is not for this Court arbitrarily to read into a statute that which it does not

say. Just as courts are not to eliminate through judicial interpretation words that were

purposely included, we are obliged not to add to statutes something the Legislature

purposely omitted.” Syl. pt. 11, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21 (2013).




may be considered if the child who is the subject of the petition is involved in another court
proceeding relating to custody or guardianship or if the petitioner is a parent seeking
custodial rights adverse to the other parent.”).

                                               9
              Considering the language of a prior version of the guardianship statute, we

held that,

                     “[p]ursuant to the plain language of W. Va. Code § 44-
              10-3(a) (2006) (Supp. 2007), the circuit court or family court
              of the county in which a minor resides may appoint a suitable
              person to serve as the minor’s guardian. In appointing a
              guardian, the court shall give priority to the minor’s mother or
              father. ‘However, in every case, the competency and fitness of
              the proposed guardian and the welfare and best interests of the
              minor shall be given precedence by the court when appointing
              the guardian.’ W. Va. Code § 44-10-3(a).” Syl. Pt. 6, In re
              Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008)[,
              superseded by statute on other grounds as stated in In re
              Antonio R.A., 228 W. Va. 380, 719 S.E.2d 850 (2011)].

Syl. pt. 3, In re Guardianship of A.C., 240 W. Va. 23, 807 S.E.2d 271. See also Syl. pt. 3,

in part, Mathews v. Wade, 2 W. Va. 464 (1868) (“By the Code of Virginia, 1860, a lawfully

appointed guardian has the custody of his ward and the care and management of his estate,

but the father of the minor, if living, and in case of his death, the mother, while she remains

unmarried, shall, if fit for the trust, be entitled to the custody of the person of the minor,

and the care of his education.”). Having examined the statutory language applicable to the

issues raised in this case, we likewise find that the wording of the current version of West

Virginia Code section 44-10-3 also is clear and plainly expresses the Legislature’s intent

to favor a child’s parent, if he/she is fit, to serve as his/her child’s guardian provided such

custodial placement comports with the child’s best interests. See W. Va. Code § 44-10-

3(h).




                                               10
              Because the instant appeal seeks to terminate the Guardians’ guardianship of

K.E., it is necessary to consider the basis upon which the circuit court initially granted the

guardianship to determine whether Father has demonstrated a “material change of

circumstances” sufficient to terminate it. In its February 20, 2018 order granting the

guardianship, the circuit court made the following findings of fact:

              1. An ex parte order was entered on November 14, 2017[,]
              granting temporary guardianship to the [Guardians] and a
              temporary order further granted temporary guardianship
              following a hearing held on November 27, 2017[,] pending
              further investigation.

              2. The child was in the primary legal custody of the respondent
              mother . . . until her arrest. The respondent mother is currently
              incarcerated and does not have a current release date.

              3. The Department has not substantiated any abuse or neglect
              by either parent to the minor child. The [Department]
              recommends that the guardianship be granted.

              4. The guardian ad litem has conducted an investigation and
              recommends that the guardianship be granted and that [it] is in
              the best interests of the child.

              5. There are no other filings before the Court.

              6. It is in the best interests of the minor child to grant the
              petition [for] guardianship filed by [the Guardians].

              7. It is in the best interests of the minor child to continue the
              respondent father’s visitation as decreed in the final parenting
              order.

The court additionally ordered that “[t]he [Guardians] are granted custody and

guardianship of the minor child, K[.] E[.]” and “[t]he Respondent father shall exercise

visitation as outlined in the prior final parenting order.”



                                               11
              However, noticeably absent from the circuit court’s order establishing the

guardianship is any reference to the guardianship statute, i.e., West Virginia Code section

44-10-3; any findings, by clear and convincing evidence, that one or more of the requisite

statutory factors set forth in subsection (f) warranted the guardianship; or any explanation

as to why Father did not receive priority or was determined to be unfit as required by

subsection (h). Other than observing that Mother has been, and remains, incarcerated, the

circuit court also did not identify what “immediate need” exists to require the appointment

of the Guardians or explain that “a period of transition into the custody of a parent is

needed” as set forth in West Virginia Code section 44-10-3(g).



              Although the parties contend that the circuit court provided additional insight

into its rulings during the hearing giving rise to its February 20, 2018 guardianship order,

we repeatedly have recognized that “[i]t is a paramount principle of jurisprudence that a

court speaks only through its orders.” Legg v. Felinton, 219 W. Va. 478, 483, 637 S.E.2d

576, 581 (2006). Accord Harvey v. Harvey, 171 W. Va. 237, 241, 298 S.E.2d 467, 471

(1982) (“That a court of record speaks only through its records or orders has been generally

affirmed by this Court in subsequent cases.”). Thus, where, as here, the parties suggest

that the circuit court’s oral statements preceding its written ruling helped to explain the

reasons for the entry of the court’s guardianship order, we nevertheless are constrained to

rely solely upon the circuit court’s written order as that is the ruling that controls and

definitively announces the court’s decision to establish a guardianship and to entrust the

Guardians with the care and custody of K.E. See Tennant v. Marion Health Care Found.,


                                              12
Inc., 194 W. Va. 97, 106 n.5, 459 S.E.2d 374, 383 n.5 (1995) (“[I]t is clear that where a

circuit court’s written order conflicts with its oral statement, the written order controls.

Therefore, ‘we are left to decide this case within the parameters of the circuit court’s

order.’” (quoting State v. White, 188 W. Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2

(1992))). See also Murrell B. v. Clarence R., ___ W. Va. ___, ___ n.43, 836 S.E.2d 9, 20

n.43 (2019) (noting that “the order of adoption is prime, and the circuit court’s oral

statements, uttered before entry of the 2014 Order of Adoption, cannot add to or subtract

from the final effect of that order” and that “[i]f there is a conflict between the circuit

court’s oral statements during the June 2014 hearing and the 2014 Adoption Order, the

Adoption Order controls”).



              Therefore, regardless of the reasons for its ruling that the court may have

announced orally, our review of the propriety of the guardianship arrangement in this case

is limited to the justifications set forth in the circuit court’s written order entered February

20, 2018. Because this order does not reference any of the statutory factors for the

appointment of a guardian enumerated by subsection (f), we must presume that the

appointment of the Guardians to serve in that capacity was temporary, pursuant to

subsection (g), although the satisfaction of those criteria also is not apparent from the

circuit court’s order. Accordingly, absent clear and convincing evidence that any of the

factors listed in subsection (f) require the appointment of a guardian for K.E., we must find

that the circuit court’s February 20, 2018 order appointing the Guardians was a temporary

order.


                                               13
              Pursuant to West Virginia Code section 44-10-3(g), “the duration of the

temporary guardianship may not exceed six months,” although “[a] temporary

guardianship may be extended beyond six months upon further order of the court finding

continued need in the best interest of the minor.” Id. (emphasis added). As a temporary

guardianship, then, the Guardians’ appointment to serve as K.E.’s guardian does not, as

stated in subsection (g), continue for an indefinite period of time; rather, a temporary

guardianship is limited to six months, subject to subsequent extension by the circuit court.

Under these circumstances, when Father filed his motion to terminate the Guardianship in

April 2018, he was not required to satisfy the high threshold of a “material change of

circumstances” required by subsection (j). Rather, Father was required to show only that

the justification for a temporary guardianship no longer exists by demonstrating either that

no “immediate need exists” or no “period of transition into the custody of a parent is

needed” to support the continuation of the temporary guardianship. See W. Va. Code § 44-

10-3(g).



              In summary, because the circuit court’s February 20, 2018 guardianship

order did not sufficiently address the statutory factors of West Virginia Code section 44-

10-3(f) required for the appointment of a guardian, the court’s order must be treated as one

establishing a temporary guardianship. Moreover, because the court applied the wrong

burden of proof to Father’s request to terminate the guardianship, we must reverse the

circuit court’s August 21, 2018 order and remand this case for further proceedings to

determine whether there exists a “continued need” such that the best interests of K.E.


                                             14
require the continuation of the subject guardianship as well as to consider whether Father,

who has superior rights to the custody of his child over the Guardians, is fit to have custody,

and, if he is, whether such placement serves the child’s best interests. See W. Va. Code

§§ 44-10-3(g), (j).



              Upon remand, the circuit court’s determination as to whether continuation of

the current guardianship is required by a “continued need,” W. Va. Code § 44-10-3(g), and

serves the child’s best interests should consider our longstanding precedent recognizing the

fundamental rights of parents to the custody of their children. In this regard, we have held

that, absent a showing that the child’s parent is unfit, the child’s parent has a superior right

to the custody of the child:

                     A parent has the natural right to the custody of his or her
              infant child and, unless the parent is an unfit person because of
              misconduct, neglect, immorality, abandonment or other
              dereliction of duty, or has waived such right, or by agreement
              or otherwise has transferred, relinquished or surrendered such
              custody, the right of the parent to the custody of his or her
              infant child will be recognized and enforced by the courts.

Syl., Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960). Accord Syl., State

ex rel. Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d 798 (1969). See also Syl. pt. 2, in

part, Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989) (“[C]ustody of [a]

minor child should be with the natural parent absent proof of abandonment or some form

of misconduct or neglect[.]”). We also have held that,

                      [i]n the law concerning custody of minor children, no
              rule is more firmly established than that the right of a natural
              parent to the custody of his or her infant child is paramount to


                                               15
              that of any other person; it is a fundamental personal liberty
              protected and guaranteed by the Due Process Clauses of the
              West Virginia and United States Constitutions.

Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).


              This custodial preference accorded to a child’s fit parent prevails even if

another person might provide a better home for the child and is defeated only if the child’s

best interests dictate a different custodial placement is more suitable for the child.

Therefore, “[w]hile courts always look to the best interests of the child in controversies

concerning his or her custody, such custody should not be denied to a parent merely

because some other person might possibly furnish the child a better home or better care.”

Syl. pt. 3, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118. Again, though, the ultimate

factor for determining to whom a child’s custody should be awarded is the best interests of

the child subject to the guardianship proceedings. “Although parents have substantial

rights that must be protected, the 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). See also Syl. pt. 7, Matter of Brian D., 194 W. Va. 623, 461 S.E.2d

129 (1995) (“Cases involving children must be decided not just in the context of competing

sets of adults’ rights, but also with a regard for the rights of the child(ren).”); Syl. pt. 4,

Green v. Campbell, 35 W. Va. 698, 14 S.E. 212 (1891) (“But the court is in no case bound

to deliver the child into the custody of any claimant, but may leave it in such custody as

the welfare of the child at the time appears to require.”). Accordingly, on remand, the

circuit court is directed to consider not only the guardianship statute that governs these



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proceedings, but also whether Father is fit to have custody of his child as well as the

custodial arrangement dictated by K.E.’s best interests.



                                             IV.

                                     CONCLUSION

              For the reasons stated in this opinion, we reverse the August 21, 2018 order

of the Circuit Court of Cabell County. We further remand this case to the circuit court to

determine whether the child’s guardianship should continue or whether her custody should

be returned to one or both of her parents.



                                                                Reversed and Remanded.




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