Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Murrell B. v. Clarence R.

Supreme Court of Appeals of West Virginia

November 18, 2019

MURRELL B. AND LINDA B., Petitioners
v.
CLARENCE R. AND NANCY R., Respondents

          Submitted: September 4, 2019

          Appeal from the Circuit Court of Boone County The Honorable William S. Thompson, Judge No. 14-A-04

          Ancil G. Ramey, Esq. Hannah C. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia Counsel for Petitioners

          Lora Keyser Fugate, Esq. Harts, West Virginia Counsel for Respondents

          Matthew M. Hatfield, Esq. Hatfield & Hatfield, PLLC Madison, West Virginia Counsel for Petitioners

          L. Scott Briscoe, Esq. Danville, West Virginia Guardian ad litem

         SYLLABUS BY THE COURT

         1. "'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).

         2. "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).

         3. "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 361 (1975).

         4. "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 108 (1968).

         3. "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).

         4."'The 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).

         5. An "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

         Petitioners Murrell and Linda B. adopted C.B. in 2014 when he was five years old.[1] 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.

         On 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.

         I. FACTS AND PROCEDURAL HISTORY

         C.B. 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.

         In 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 Virginia Code.

         As the 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.[2] 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.

         In 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 petition concluded,

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 forever pray.

         Clarence and Nancy did not intervene in or otherwise object to Linda's petition for guardianship.

         The 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 guardianship petition.

         On 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 Order.[3]

         The 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. . . .

         On June 2, 2014, the circuit court entered the final order granting Murrell and Linda's petition to adopt C.B. (2014 Adoption Order).[4] In that order, the circuit court found: (1) Clarence and Nancy exercised visitation with C.B.; (2) they were provided notice[5] 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.[6]

         After 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, [7] 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.

         In 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 interest and

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 adoption hearing.

         In 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.

         In 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)[8] precluded such an arrangement.

         Later, 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., [9] Clarence and Nancy reiterated their request for scheduled visitation.

         The 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.

         The 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.

         In the 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.[10] Murrell and Linda now appeal the 2018 Visitation Order.[11]

         II. STANDARD OF REVIEW

         "'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)."[12] "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."[13]

         III. THE PARTIES' ARGUMENTS

         Murrell 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.[14] 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.[15] 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.[16]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.

         Clarence 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., [17] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.