*1 who is compensation claimant A workers’ In the instant benefits. of health cessation tempo- of her claim for protesting the closure discriminatory oc- conduct alleged disability benefits the denial Appel- rary total months after eighteen and/or almost curred disability bene- total compensation claim. of additional her workers’ lant filed meaning of the in itself come within the is not fits does not temporal factor While discriminatory Virginia claiming” found West terms “is the absence conclusive of (1994). Board, Accordingly, an em- § further of the Code 23-5A-2 part intent pay the health insur- acting who ceases to ployer was not the Board evidence protest- who is filing premiums a claim for for a claimant Appellant’s ance retaliation of TTD appealing that the Board the closure denial in the fact is found benefits statutory an act of discrimi- re- does not commit merely adhering to benefits legislative § intent of West Virginia 5-16-24. nation within the Code quirements West statute, § 23-5A-2. Virginia is found Code particular That Employees Insurance Virginia Public West foregoing, we affirm the deci- Based on the Act, §§ 5-16-1 to -27 Virginia Code West County. of Mason sion of the Circuit Court (1994 requires employ- an Supp.1996), only & Affirmed. of an em- proportionate share pay its er is on a premium who ployee’s health care one period for a of absence
medical leave Thus, Board had not because the
year.9 one-year period for bene-
arbitrarily picked a complying with payments, was instead
fit public governing statutory requirements insurance, certainly suggests
employees’ neutral, non-discriminatory adherence to a S.E.2d 775 policy. BAUGH, Petitioner that, argues after the one- The Board Below, Appellee, Virgi period imposed West year payment expired, it is no § 5-16-24 has nia Code language of subject statutory longer MERRITT, Respondent Kay Starr § Given the Virginia Code 23-5A-2. West Below, Appellant. within com these two statutes location of No. 23783. Code, we are areas of the pletely distinct Accordingly, argument. by this persuaded Appeals of Supreme Court of one-year limitation determine we Virginia. West § on Virginia Code 5-16-25 imposed by West 29, 1997. Jan. Submitted share of pay proportionate its employer an premiums for those em the health insurance July 1997. Decided of ab leaves ployees approved medical respect controlling with is not sence pay its employer can terminate an
whether pre insurance employee’s health
ment of an being in violation West
miums without §
Virginia 23-5A-2. Code forth, we previously set
For the reasons language within the absence of
conclude that specifi- § 23-5A-2 Virginia Code stage of protesVappeals
cally includes the claim was intentional. compensation
workers’ Appellant’s health employer did that as pay certainly for an employer choose An can paid by Board for almost premiums longer were coverage than employee’s health care following injury. eighteen months case indicate that year. facts of this *2 Weber, Jr., Thomas, January R. W.T. Shannon after she arrived in Mis- Weber, Weston, Appellant. & souri. That pre- Weber document which on a prepared “Special form called Power of Stobbs, Weston, Appellee. R. Russell Attorney Voluntary Appointment granted Raymond Guardian” Baugh PER CURIAM infant, guardianship of the D.M. The docu- *3 appeal by Kay This is an Starr Mer preprinted ment contained a clause which from an ritt order of the Circuit Court of stated: County custody Lewis which transferred Attorney This Power of shall become child, D.M., appellee, Rayr her infant to the sign effective when I and execute it below. Baugh, mond J. who is to be the believed Further, unless sooner revoked termi- appeal, appellant child’s uncle. On me, Attorney nated this Power of shall procedure that the claims used the circuit become NULL and VOID on. transferring custody improper court in was present The words “unknown at time” were appropriate there and was factual in preprinted handwritten blank. justify to reviewing basis After transfer. presented, According appellant the issues to the Court concludes she was later informed employ improper the circuit court did that even this document was not procedures trying Raymond in sufficient to Baugh and for that enable J. to D.M., obtain a “medical reason this Court reverses decision of the card” for and consequence circuit court and remands this case for fur she executed a form which she development. qualify ther believed would her son for a “medical card.” in record this case indicates that the 1995, May in this Au- appellant child involved case was born on returned to gust County, Lewis Virginia, picked up and that he resided with the and mother, appellant, his natural her son Shortly until Decem- and returned to Missouri. 1994, Raymond ber when because of financial thereafter Baugh difficul- J. to traveled ties, Missouri, impossible according she that it appellant, determined was to the and properly for her to care for him. threatened her with kidnaping As a and demand- 1994, consequence, point appellant in ed her son. At this she decided to seek re- Raymond work and a better life in the of Mis- turned her son to Baugh, J. and Virginia. souri. Because of the situation she also de- the child was returned to West Thereafter, 1995, temporary September appellant cided to leave D.M. in the in uncle, custody paternal Raymond Raymond Baugh of his notified J. that she was Baugh, returning Virginia J. until regain custody such time as she found work to West to in of her son to established herself the State of Mis- terminate the Raymond Baugh, appellee, ap- guardianship arrangement. souri. J.
parently arrangement satisfactory. found receiving Raymond After this notification appellant Baugh
Before the present left for Missouri she J. instituted the action in the Raymond Baugh, County. delivered D.M. to Circuit J. Lewis In institut- gave Raymond Baugh sought perma- she also the action he to J. handwrit- obtain the 1994, 22, ten note dated November in nent and control' of D.M. In his petition Raymond Baugh she authorized him to alleged seek medical care for J. that in 1994, Apparently, appellant appellant her son. both the December had turned Raymond Baugh of D.M. him J. believed this would over to and that from 1994, Raymond Baugh neglected be sufficient for to obtain J. December she had him. The petition financial assistance or a to an allegation “medical card” also contained that she pay for the him. child’s medical care. had abused
According
appellant,
given
hearing
to the
the note
A
was conducted on November
Raymond
Baugh
adequate
J.
although according
appellant
purpose,
cover
adequate
its intended
and as a conse-
the court did not have
time to hear
witnesses,
quence, she executed another document on all
re-
did introduce evidence
custody questions
arrange-
adjudicating
where a
living
and the
lating to her finances
parent
relinquished custody
herself
to an
she had established for
natural
has
ments which
in Missouri.
parent,
and her son
than a
where
individual other
perma-
is
that the
there
some claim
child’s
in-
hearing
Baugh
At
later
nent
should be transferred
appel-
suggesting that the
evidence
troduced
non-parent
holdings
Several
custodian.
prior moving
her son
neglected
lant had
bearing
have
ease.
Missouri.
Overfield
First,
the Court stated that a
court,
hearing
after
the evi-
The circuit
transferring
document
a child
dence,
appellant
in-
that the
concluded
parent
third-party,
from a
to a
non-
natural
permanent custody of
transfer
tended
provide
custodian should
Baugh
prior to
Raymond J.
D.M. to
whether
of the natural
the intention
Baugh the child was not well
living with Mr.
custody permanently to transfer
need,
*4
of,
in
his
was
dire
taken care
the
to
should indicate whether
intention is
well-being
physical,
psychological
mental and
custody only temporarily.
sylla-
transfer
In
The court also found
were
attended to.
not
point
bus
the
case the Court
6 of
Overfield
neglect-
that the child had been abused and
stated:
ed,
Raymond Baugh
J.
become
that
had
and
father of
The
psychological
the
the child.
In
that the
of
the unlikelihood
scrivener
appellant
that the
had aban-
court concluded
voluntarily transferring
a
the
document
Baugh
Mr.
done noth-
the child to
and
doned
parent
a
custody of a child between
and a
support
him to assist in
support
or
his
to
express any
person
third
fails to
intention
employed
thought
even
she had
since
change,
as to
of the
the duration
custodial
that the
presumed
shall be
transfer is
proof
temporary, and the burden
shall
proceeding
appellant
present
In
the
upon
person
prove by
to
improper
be
the third
clear
the trial court followed
claims that
evidence,
Among
convincing
and
either
or
procedures
adjudicating
in
this case.
intrinsic
extrinsic,
petition
claims that
con-
that it was the intention of the
things
other
she
parent
permanent custody
allegation
abandonment. She
to transfer
tained
clear,
person.
claims that there was no
co-
third
further
child to the
gent,
convincing
per-
evidence
she
and
that
in
examining
present
In
the documents
to
manently
custody
transferred
of D.M.
case,
say
that
this
cannot
ex-
Court
Raymond
Baugh or that
had relin-
J.
she
pressly
provide whether
transfer of cus-
quished
parental rights to him.
also
her
She
tody
appellant
to Raymond
D.M. from the
clear,
argues
cogent,
that there was no
permanent
Baugh
to be a
or
J.
was intended
evidence, that she
abused and
convincing
custody.
temporary
Although
transfer of
this,
neglected
Relating
the child.
to
“Special
Attorney
the fact
Power of
that the
points
physi-
had not
out that she
had actual
Voluntary Appointment
Guardian”
custody
child for
approximately
cal
of the
indicating
contained a clause
that
it would
year
proceeding
that
there
before
suggest
become “NULL and VOID” would
absolutely no
the trial
could thus be
basis for
impose
that
intention
there was some
presently
that she
court
to conclude
upon
custody,
some
the transfer of
that
limit
way
abusing
neglecting the child in such a
or
absolutely
fact is
from
not
clear
the docu-
terminating
to serve as
basis
ment.
neglect
statute.
custody under the abuse
event,
In
nature of
given the
the docu-
filing
appeal
of the
in the
After the
involved,
given
holding
6, ments
case,
present
this Court
December
case,
syllabus point 6 of the
opinion
an
in the case of
rendered
Overfield
Ray-
Collins,
Court believes that it was incumbent on
27, 483
199W.Va.
S.E.2d
Overfield
(1996).
prove by
Baugh
mond J.
clear and con-
closely
27
case
anal
Overfield
extrinsic,
evidence,
vincing
intrinsic or
either
ogous
presently
consider
to the
under
ation,
appellant
that the
intended to
from
transfer
and in
Court detailed the
Overfield
Further,
him.
procedures
of D.M. to
it does
to be followed
a circuit court
that
appear
Baugh
J.
met
should be remanded
treatment and con-
not
although, in
proof,
burden of
fairness
sideration consistent with the standards set
court,
say
must
at the time
circuit
forth
case.
Overfield
clearly
hearing
it had not
In the
case the Court believes that
a non-
indicated that such burden was on
given
the fact that the
documents do
natural custodian
cases such as this one.
state whether
syllabus point
of the
permanent,
transfer was to be
Overfield
case the Court further stated:
presume
the trial court should
that the trans-
temporary,
only Raymond
fer was
if
tempo-
transfers
When
natural
Baugh
convincing
shows
clear and
evi-
per-
rary custody of their child to a third
appellant’s
dence
intention was to
regain custody
seeks
son and thereafter
permanent
make a
transfer of
should
proof
of that
the burden of
shall be
the documents be deemed to have trans-
upon
prove by
clear
permanent custody.
ferred
fit;
After determin-
convincing
that he
evidence
or she is
ing whether the
proof
documents did transfer tem-
thereafter the burden of
shall shift to
porary
permanent custody,
party
prove by
the Court
third
clear and
proceed
should then
with a
vincing evidence that the child’s environ-
determination of
principles
the case consistent with the
ment should
be disturbed because to
of the
significant
relating
do so
constitute a
case and our other law
detri-
notwithstanding
custody.
ment to the child
the nat-
*5
parent’s
legal right
ural
assertion of a
The Court notes that
in
the
Overfield
the
To
that our
child.
the extend
decision
depart
principle
Court did not
from the
set
McCartney
Coberly,
in
v.
250
777
S.E.2d
Barr,
378,
Lemley
in
forth
176 W.Va.
343
(W.Va.1978)is inconsistent with this hold-
(1986),
S.E.2d 101
that the best interest of
ing,
expressly
it is
overruled.
always
regarded
supe-
the child has
as
syllabus point
The Court also stated in
3 of
right
parental custody
rior to the
of
the
case:
Overfield
where a child has been with someone other
parent
perma-
When a natural
transfers
parent
appreciable peri-
than a natural
for an
nent
of his or her
to a
child
third
time, potential
od of
a
material benefit to the
person
attempts
regain
and thereafter
a
child must be shown before
transfer of
child,
proof
of that
the
burden
custody should be ordered.
exclusively upon
shall rest
at-
Also,
previously
in
indicated
In the Mat-
tempting
regain custody
of his or her
C.,
395,
Lindsey
ter
196 W.Va.
473 S.E.2d
by proving
convincing
child
with clear and
(1995),
110
in a case such as
Overfield
(1)
(2)
fit;
evidence:
that he or she is
present
appoint
one the trial court should
that a transfer of
so as to disturb
guardian
represent
a
ad
litem
the inter-
existing
the child’s
environment would con-
ests of the infant child and should fashion a
significant
stitute a
benefit to the child.
plan of visitation to afford the non-custodial
To the extent that our
ex
decision
opportunity
an
with
visit with the
Utterback,
rel. Harmon v.
W.Va.
pending
ultimate
child
resolution
(1959)
with the his natural til December when because of finan- [*] [*] [*] [*] [*] [*] difficulties, cial that it was she determined conference, by satellite to The carried impossible properly for her to care nearly country, across the sites him.... body highlight growing meant to of re- fact, truth, points period rapid “impossi- search that to a In it was not development in from boy; to care for little brain children birth ble” for this mother merely Being age years ago, a few infants it was inconvenient. the moth- Until commonly passive year something one were crea- er of a two old is not viewed largely and unaffected just easy it is or convenient. Her tures unaware does when surroundings. But new research cavalier and casual attitude toward her re- their scans, methods, including brain have al- sponsibility me a line as a mother reminds study know, scientists to the effect lowed And as we now for the first three life, development years child’s environment on brain of their so much happening years of life. baby’s the first They brain. will learn to soothe they’re themselves upset, empath- when impact “The of the environment is dra- get along. ize to experiences These can specific, merely influencing matic and determine grow whether children will up general development, direction of peaceful citizens, to be or violent focused actually affecting how the intricate circui- workers,, undisciplined attentive or de- wired,” try according of the brain is parents tached themselves. Brain,” “Rethinking report by the virtue of lies and Work And the Associated Press the core of the birth, toys they play fore majority nections become see not used tend to become eliminated.” development. nection with nections between brain cells—formed be- Families and Work Institute issued in con- child’s brain A Not combine to affect the brain’s the first three report by age givers have been activated effect, only ways permanent; repeated early experience among of the brain’s relate with are yesterday’s structure is still in which Institute, report the New York-based Fami- with, conference, most brain research brain language they years even the said, children parents cells—are formed. which was to form synapses conference. synapses reported: suggests “those many found synapses forming life, images they during and other long-term —or times hear, synapses the vast that are tend to that a —con- after dur- that ways, from motor skills to social interaction. just talking words, be rich to but, focused her child because ing, playing games, reading, story-telling, taught must be od, contact, During In this d' child must have intense will reading, listening. that development singing, playing games,, at child are also the best for his or her cheapest and most fun conference will [******] That least, you a million directly cuddling and get the activities that are the high degree do challenged said, story-telling, across the revolutionary idea all-important three-year peri- listening. do have to be there! — things of these on the child. He or she here mother accomplish. was not there for sing- of attention must be and rewarded and is what in direct and subtle affection; things You don’t have to drastically to do with with a talking and stimulation, I hope in other hope easiest, failed your period directly formative affect the child’s *7 Interestingly,, study this finds that this mat- development emotional ability and their to development uration and consists of both adults, report handle stress as said. physical components. emotional and For ex- conference, during In remarks ample, a adequate child who receives atten- Lady First said: physically tion and will develop stimulation approximately 100 billion nerve astonishing It connections is what we now know during three-year this important period; young about the brain and about how chil- and, a child who adequate does receive develop. dren Just far how we have come nurturing develop stimulation and will 25 to report being is chronicled in a today issued percent organic physical less Institute, nerve con- by the Families and Work enti- nections. This deficit can never be re- “Rethinking tled the Brain.” Fifteen versed! years ago, thought baby’s we that a brain virtually complete structure was at birth. course, really Of none of us to need see the Now, we that it is a understand work any university study results to that a know progress, everything we with a do two-year desperately old child needs intense potential physical child has some kind of emotional attention and stimulation to devel- rapidly-forming
influence on that
brain.
op
properly.
and mature
Our mothers and
******
grandmothers knew it and so do we.
care.
If
is true of medical
age,
day. The same
especially this
any age, but
Kids of
or
physician
to see a
it
she or the child needed
they need
love and
affection
need
n
medicine, she would
prescription
They
to be
needed
constantly.
need
demonstrated
emergency medical card
given an
They
somebody
have been
need
cuddled.
hugged and
paid the total
fall,
day
would have
pet
very
they
up
pick them when
to
visits,
drugs.
tears,
hospital bills and
of doctor
away the
cost
places,
hurt
and kiss
(Wouldn’t
plan
you
a medical
like
like to have
well,
on even
put Band-Aids
them
make
that?!!)
could have been
They
Gibson funds
really
need
needed.
they are
when
keep her and
anything
that would
especially need their
used
do
parents and
both
example,
together.
For
Gibson
boy urgent-
the child
two-year-old
This little
mother.
utility deposits, pay for trans-
pay
can
have
funds
and she should
ly
his mother
needed
car,
money, buy
affection;
pay gas
or
portation, hire a
she should
him
there to show
appliances,
or
refrigerator
other
face and to dress
there to wash his
have been
things.
other
of a hundred
him;
there to teach
should have been
she
things. This
very important little
him all the
all
described above was
The assistance
these and
mother for all
boy
little
needed his
day
on the same
she
available to Ms. Merritt
every day. But
things
other
for a thousand
the DHHR office.
have first
would
visited
her
when he needed
just was not there
she
term,
apparent she also would
Long
it is
him oth-
abandoned
desperately. She
so
check,
monthly
received a
welfare
have
part of his life.
this most critical
ers at
complete med-
monthly
stamps, free and
food
care,
ical,
free rent
hospital and dental
says
her child when
mother
she left
This
programs,
HUD
through
finan-
one of several
barely
years old because of
two
he was
clothing for her little
accepts
periodic vouchers for
majority
cial difficulties.
five,
fact,
In
with a child under
she was
Today,
boy.
excuse,
simply
cannot.
we live
program,
which would
eligible
in the United
for
“WIC”
welfare state
in the modern
her
provide vouchers for
currently spend
food
Virginia
we
States.
pro-
stamps;
food
budget
baby in addition to
part of our
very
substantial
infant medical
mothers,
gram
provide regular
such as
provide
aid
year
each
care in addition to
Merritt,
dependent
screening and medical
have
children.
Ms.
who
it
It was all free and was
medical card.
go
to the local
If Ms. Merritt had bothered
facts, it
asking.
Given these
County
ask for
all there for
in Lewis
DHHR office
this mother to
simply preposterous for
immediately.
it
help,
received
she would have
two-year-
to abandon her
claim that she had
DHHR,
kind of
gone
what
If she
desperately
her so
be-
old child who needed
really
gotten and when?
help
have
could
of financial reasons.
cause
meaning-
substantial and
it have been
Would
that, however,
Having
all
the facts of
really
said
allow her
help
ful
and would
really fussing
I’m
case are not what
support her child?
to live and
basic means
My
complaint is the law which
real
about.
starters,
Well,
very day she walked
deciding
majority
this case.
cites
she would have
local DHHR office
Collins, 199
They rely heavily on
apartment
to rent an
Gibson1 funds
received
(1996).
I was not
Syllabus point 2 of this
Over-
lip
principle by
service to the “best interest”
field,
a fair and common sense
establishes
Barr,
378,
Lemley
referring to
176 W.Va.
permanent
procedure
which we can undo
(1986),
apply
ic as to is likewise not
in the best interest of affected children. continuity
Children need of caretakers and regularity aspects in all of life. That which S.E.2d 783 really gen- uncertain is unknown and is what RICE, In the Matter of John R. us, anxiety erates and fear for all of adults Magistrate for Cabell alike. and children County. Ideally, only we would have one test for 23159. No. reversing permanent either Supreme Appeals transfers, and that would be the Virginia. syllabus point 1 of this test cited ease; presumptions in and we would have no April Submitted 1997. parents give up favor of who children. July Decided personally which state like the ancient eases every that the Polar Star of Consideration custody case should be what is best for presumptions and no “con-
the child. No parties analysis
tract” of the “intent” of gets
cerning writing govern some should who Any rule of law that child.
makes a child decision turn on a *9 principles legal
consideration of contract precisely
presumptions is a bad rule. That is is what
what does and wrong Custody the case. eases should with