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




       1
         (...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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