MURRELL B. AND LINDA B., Petitioners
CLARENCE R. AND NANCY R., Respondents
Submitted: September 4, 2019
from the Circuit Court of Boone County The Honorable William
S. Thompson, Judge No. 14-A-04
G. Ramey, Esq. Hannah C. Ramey, Esq. Steptoe & Johnson
PLLC Huntington, West Virginia Counsel for Petitioners
Keyser Fugate, Esq. Harts, West Virginia Counsel for
Matthew M. Hatfield, Esq. Hatfield & Hatfield, PLLC
Madison, West Virginia Counsel for Petitioners
Scott Briscoe, Esq. Danville, West Virginia Guardian ad litem
BY THE COURT
"'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.' Syl. Pt. 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996)."
Syllabus Point 1, Napoleon S. v. Walker, 217 W.Va.
254, 617 S.E.2d 801 (2005).
"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." Syllabus Point 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138');">194 W.Va. 138, 459 S.E.2d 415 (1995).
"The primary object in construing a statute is to
ascertain and give effect to the intent of the
Legislature." Syllabus Point 1, Smith v. State
Workmen's Comp. Com'r, 159 W.Va. 108');">159 W.Va. 108, 219 S.E.2d
"Where the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without
resorting to the rules of interpretation." Syllabus
Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d
"Statutes in pari materia must be construed together and
the legislative intention, as gathered from the whole of the
enactments, must be given effect." Syllabus Point 3,
State ex rel. Graney v. Sims, 144 W.Va. 72');">144 W.Va. 72, 105
S.E.2d 886 (1958).
Legislature, when it enacts legislation, is presumed to know
its prior enactments.' Syllabus Point 12, Vest v.
Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953)."
Syllabus Point 5, Pullano v. City of Bluefield, 176
W.Va. 198, 342 S.E.2d 164 (1986).
"agreement" for purposes of West Virginia Code
§ 48-22-704(e) (2015) is a mutual manifestation of
assent by the adoptive parent(s) and a third party as to
visitation or communication with the adopted child that is
either stated in full in the final adoption order or
explicitly referenced in that order and made an exhibit to
it. All parties to the agreement must endorse the final
adoption order and any agreement incorporated by reference.
WALKER, Chief Justice
Murrell and Linda B. adopted C.B. in 2014 when he was five
years old. In 2012, Linda had been named C.B.'s
guardian. Prior to that, C.B. lived with Respondents Clarence
and Nancy R., although they were not related to C.B. and they
were not his legal guardians. When Linda became C.B.'s
guardian in 2012, the family court granted Clarence and Nancy
visitation with C.B. Murrell and Linda allowed that
visitation to continue following the 2014 adoption until, in
2016, the parties quarreled, and Murrell and Linda
drastically reduced the visitation. Clarence and Nancy
petitioned for visitation with C.B., which the circuit court
granted, relying on Clarence and Nancy's pre-adoption
relationship with C.B. and the child's best interests.
appeal, we uphold Murrell and Linda's challenge to the
circuit court's order granting visitation. First,
Clarence and Nancy did not have standing to petition the
circuit court to modify their alleged post-adoption
visitation agreement under West Virginia Code § 48-9-103
(2015). And, applying the plain language of West Virginia
Code § 48-22-703(a) (2015), we find that Murrell and
Linda's adoption of C.B. in 2014 severed Clarence and
Nancy's visitation with the child. Further, because the
2014 Adoption Order does not provide for visitation between
Clarence, Nancy, and C.B., we conclude that an agreement
among the parties regarding post-adoption visitation does not
exist in this case. For these reasons, we reverse the circuit
court's final order granting scheduled visitation with
C.B. to Clarence and Nancy.
FACTS AND PROCEDURAL HISTORY
was born in August 2008 to S.A.-1. Shortly after C.B.'s
birth, the West Virginia Department of Health and Human
Resources filed an abuse and neglect petition against S.A.-1,
removed C.B. from S.A.-1's custody, and placed him with
her sister, S.A.-2. At the time, S.A.-2 lived with Clarence
and Nancy, the parents of her then-husband. From the fall of
2008 until September 2012, C.B. lived with Clarence and
Nancy. They provided C.B. with economic and emotional support
although they were not his blood relatives and never
established a legal relationship to him.
April 2009, the Circuit Court of Boone County (No. 08-JA-44)
granted temporary guardianship of C.B. to S.A.-2. It then
dismissed the abuse and neglect petition pending against
S.A.-1. Later, in 2010, the Family Court of Logan County (No.
2009-FIG-11) appointed S.A.-2 as C.B.'s permanent
guardian under Chapter 48 (formerly Chapter 44) of the West
Boone County abuse and neglect case wound down, a March 2009
paternity test showed that S.B., Murrell and Linda's son,
was C.B.'s biological father. S.B. immediately petitioned
the Circuit Court of Boone County (No. 09-D-145) to establish
paternity of C.B. and to obtain custody and a parenting plan.
In September 2009, S.B. voluntarily dismissed that petition
in favor of parallel proceedings in Logan County (No.
2009-FIG-11; No. 2009-D-323). Through those proceedings, S.B.
received parenting time with C.B., to be supervised by
Murrell and Linda. In the course of the ensuing visits,
Murrell and Linda formed a relationship with C.B. They also
formed a relationship with Clarence and Nancy, with whom C.B.
continued to reside.
April 2012, Linda petitioned the Family Court of Logan County
(No. 09-FIG-11) to become C.B.'s permanent, legal
guardian. Linda alleged that S.A.-2 had delegated her
guardianship responsibilities to Clarence and Nancy, and that
C.B.'s best interests required termination of
S.A.-2's guardianship. Linda also acknowledged that C.B.
had been in Clarence and Nancy's care since at least 2010
and that a "defacto [sic] parenting plan/guardian
arrangement" existed between the couples. Linda's
WHEREFORE, [Murrell and Linda] maintain that the best
interest of the child is placing them as legal guardians over
the person and estate of [C.B.], alternatively allowing
[Clarence and Nancy] provide [sic] the responsibilities as
guardians for said child, and for such other and further
relief as the Court is duty bound to so grant and they shall
and Nancy did not intervene in or otherwise object to
Linda's petition for guardianship.
family court granted Linda's petition on September 6,
2012 (2012 Guardianship Order). The 2012 Guardianship Order
provided that "visitation between [Clarence and Nancy],
continue to be exercised as the parties address and resolve
as represented in open Court." The appendix record does
not contain a transcript of the hearing on Linda's
April 1, 2014, Murrell and Linda filed a petition to adopt
C.B. in the Circuit Court of Boone County (No. 14-A-4). The
court set a hearing on the petition for the following June;
appointed a guardian ad litem for S.B., who was then
incarcerated; and ordered the clerk to notify Clarence and
Nancy of the adoption petition based upon their visitation
rights with C.B. under the 2012 Guardianship
circuit court held a hearing on the adoption petition on June
2, 2014. Clarence and Nancy attended the hearing, but they
were not represented by counsel. The circuit court asked them
several times if they objected to the adoption, and each time
they indicated that they did not. As to visitation, the court
questioned Nancy as follows:
Circuit court: And I'm assuming [Clarence and Nancy], you
all are okay with the adoption going forward?
Nancy: Yes, we just want visitation -
Circuit court: Visitation to remain the same?
Nancy: Yes, Your Honor.
Circuit court: All right. [Murrell and Linda's counsel],
do you have me an order?
Murrell and Linda's counsel: I do, Judge. . . .
2, 2014, the circuit court entered the final order granting
Murrell and Linda's petition to adopt C.B. (2014 Adoption
Order). In that order, the circuit court found:
(1) Clarence and Nancy exercised visitation with C.B.; (2)
they were provided notice of the hearing; (3) that they did not
object to the adoption, and, in fact advised the court that
adoption served C.B.'s best interests; and (4) the
adoption was in C.B.'s best interests. The order of
adoption did not specify that visitation between Clarence,
Nancy, and C.B. would continue, post-adoption. No one
challenged the adoption order under West Virginia Code §
48-22-704, and it became final in July 2014.
the adoption, Murrell and Linda permitted Clarence and Nancy
to visit with C.B. Clarence and Nancy assert that, at first,
the frequency and duration of their time with C.B. mirrored
what Murrell and Linda had allowed under the 2012
Guardianship Order, which was approximately two to three
weekends per month. This pattern changed in August 2016,
when a dispute arose between the parties regarding a birthday
gift from Clarence and Nancy to C.B. According to Nancy,
between August 2016 and April 2017, Murrell and Linda
permitted Clarence and Nancy to see C.B. approximately five
times under supervision.
October 2016, Clarence and Nancy, now represented by counsel,
filed a "Petition for Modification of Visitation"
in the closed Boone County adoption case asking the circuit
court to enter an order setting a visitation schedule
(Petition for Modification). Clarence and Nancy alleged that
they consented to Linda's guardianship of C.B. In 2012
"with the agreement that they would continue visiting
with [C.B.] on a regular basis." As to the nature of
that visitation, Clarence and Nancy alleged that the
"Logan County Family Court was in agreement with the
modification [i.e., appointment of Linda as guardian to C.B.]
and was going to schedule visitation, but both parties agreed
that they could work together in the BEST INTEREST [sic] of
[C.B.]." Clarence and Nancy alleged that "the
visitation was continuing regularly and uninterrupted until
recently," when Murrell and Linda unilaterally ended
visitation. Clarence and Nancy also alleged that they
appeared at the 2014 adoption hearing to protect their
to make sure they were able to continue to see [C.B.] and
[Murrell and Linda] stated that was correct, so [Clarence and
Nancy] did not object to said adoption. Since said adoption,
visitation has continued uninterrupted until approximately
two months ago, as agreed upon; so, due to [Murrell and
Linda] continuing to follow the visitation schedule [Clarence
and Nancy] believe that this Court granted visitation at said
February 2017, the circuit court appointed a guardian ad
litem for C.B. The guardian was to interview C.B. and the
parties, then make a recommendation to the circuit court
regarding Clarence and Nancy's petition. After observing
C.B. interacting with Clarence and Nancy in a public park and
a restaurant, the guardian reported to the court that C.B.
shared a bond with them. The guardian did not consult a
psychologist regarding the impact upon C.B. of discontinuing
visitation with Clarence and Nancy, nor did he ask the court
to interview C.B., in camera, as to the child's wishes or
view of his own best interests. The guardian did not
interview Murrell and Linda regarding their preference as to
visitation between Clarence, Nancy, and C.B.
response to the Petition for Modification, Murrell and Linda
emphasized that Clarence and Nancy were not C.B.'s
grandparents. They also argued that the 2014 Adoption Order
extinguished any visitation that Clarence and Nancy had with
C.B. under the 2012 Guardianship Order. Murrell and Linda
further asserted that the 2014 Adoption Order did not include
post-adoption visitation for Clarence and Nancy, and that,
regardless, West Virginia Code § 48-22-802
(2015) precluded such an arrangement.
the guardian moved the circuit court to declare that Clarence
and Nancy were the "psychological parents" of C.B.,
and to direct Murrell and Linda to continue to include
Clarence and Nancy in C.B.'s life. The same day, Clarence
and Nancy replied in support of the Petition for
Modification, also moving for a declaration that they were
C.B.'s psychological parents. Citing this Court's
decision in In re K.H.,  Clarence and Nancy
reiterated their request for scheduled visitation.
circuit court held two evidentiary hearings in April 2017 on
the issue of whether Clarence and Nancy were C.B.'s
psychological parents. Clarence and Nancy testified, and
while Murrell and Linda's attorney was permitted to
cross-examine them, the circuit court did not permit Murrell
and Linda to testify or to present evidence before directing
the parties to submit proposed orders resolving Clarence and
Nancy's Petition for Modification.
parties submitted their proposed orders later in January
2018. Murrell and Linda's proposed order included lengthy
findings of fact and conclusions of law, while the proposals
by the guardian and by Clarence and Nancy included detailed
visitation schedules. Following the guardian's proposed
order closely, the circuit court granted Clarence and
Nancy's Petition for Modification and set a liberal
visitation schedule between them and C.B. (2018 Visitation
Order). The court based the grant of visitation to Clarence
and Nancy on two findings: that Clarence and Nancy were
C.B.'s psychological parents and that scheduled
visitation between Clarence, Nancy, and C.B. was in
C.B.'s best interests.
2018 Visitation Order, entered January 16, 2018, the court
granted Clarence and Nancy something they had not enjoyed
before-a schedule of visitation with C.B. Under that
schedule, C.B. was to visit Clarence and Nancy one Monday
evening and one Friday evening per month during the school
year, plus one overnight, weekend stay each month. During the
summer, C.B. was to spend one week in both June and July with
Clarence and Nancy. As for holidays, C.B. was to stay with
Clarence and Nancy (1) from the beginning of his school's
holiday break until 8:00 p.m. on Christmas Eve; (2) the
entire Martin Luther King, Jr. three-day holiday weekend; (3)
one-half of the week of Easter break; and (4) from the
beginning of his school's Thanksgiving break until 5:00
p.m. on the Wednesday of the holiday week. Murrell and
Linda now appeal the 2018 Visitation Order.
STANDARD OF REVIEW
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.' Syl. Pt. 4, Burgess v. Porterfield,
196 W.Va. 178, 469 S.E.2d 114 (1996)." "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
THE PARTIES' ARGUMENTS
and Linda raise four assignments of error. First, they
contend that Clarence and Nancy do not have standing under
West Virginia Code § 48-9-103 (2015) to intervene in the
closed adoption case. Second, they assert that the 2018
Visitation Order violates West Virginia Code §
48-22-703(a) (2015), which provides for the finality of
adoption orders. Third, they allege that the evidence
before the circuit court did not support its finding that
Clarence and Nancy were C.B.'s psychological parents
under the criteria announced by this Court in Syllabus Point
3 of In re Clifford K. Finally, Murrell and
Linda claim that the 2018 Visitation Order interferes with
their constitutional right to raise their adopted son, C.B.,
unfettered, in the absence of allegations that they are
unfit.Murrell and Linda also challenge the
circuit court's failure to provide them an opportunity to
testify or present evidence before entering the 2018
Visitation Order, an omission that they contend violated
their right to procedural due process.
and Nancy respond that West Virginia Code §
48-9-103(a)(3) (2015) enables persons "who were parties
to a prior order establishing custody or visitation" to
participate in a custody action, a condition satisfied by the
2012 Guardianship Order. Clarence and Nancy also argue that
their testimony supports the court's finding that they
were C.B.'s psychological parents. Relying on our
decision in In re K.H.,  ...