STATE of West Virginia ex rel. BRANDON L. and Carol Jo L., Petitioners, v. Honorable Alan D. MOATS, Judge of the Circuit Court of Barbour County, and Linda K.S. and Richard S., Respondents
No. 29288
Supreme Court of Appeals of West Virginia
July 6, 2001
551 S.E.2d 674
Submitted June 5, 2001.
W. Page Keeton et al., Prosser and Keeton on Torts § 36 at 220 (5th ed.1984) (footnotes omitted). Thus, the violation of a statute adopted for the safety of the public is prima facie negligence in that it is the failure to exercise that standard of care prescribed by the legislature. Reed v. Phillips, 192 W.Va. 392, 396, 452 S.E.2d 708, 712 (1994) (citations omitted).
This Court has made clear that a defendant‘s violation of a statute creates a prima facie case from which the jury may infer the defendant‘s negligence. Under some circumstances a statutory violation may be excused. Our law still holds that a sudden emergency defense may provide a legal excuse for the violation of a statute if the violation is caused by an “unusual or unsuspected situation.”1 However, ice and snow cannot qualify as a sudden emergency exception to
If a jury finds that the defendant violated this statute, adopted for the safety of the public, then the jury has made a prima facie finding that the defendant failed to exercise that standard of care prescribed by the Legislature. Accordingly, a finding that the defendant violated a statute is a finding that the defendant was negligent.
There was ample evidence in the record to establish that the defendant violated
I therefore believe that it was error for the trial court to instruct the jury that it could consider the “foreseeable risk of danger of injury and conduct unreasonable in proportion to the danger” in deciding whether the defendant was negligent. I believe the defendant violated a statute, and was therefore, at a minimum, prima facie negligent. I would have gone further and ruled the defendant negligent as a matter of law, because there was no evidence of the plaintiffs’ negligence and no legitimate justification for the defendant‘s actions. On this basis, I would have reversed the judgment for the defendant.
I therefore respectfully dissent to the majority‘s opinion.
David W. Hart, Elkins, for the Respondents, Linda K.S. and Richard S.
Chaelyn W. Casteel, Clagett & Gorey, Philippi, Guardian Ad Litem for Alexander L.
ALBRIGHT, Justice.
Petitioners Brandon L. and Carol Jo. L.,1 the adoptive stepfather and the natural mother of Alexander David L., a minor child, seek a writ of prohibition to prevent enforcement of the September 22, 2000, order of the Circuit Court of Braxton County directing that an evidentiary proceeding be held before the family law master in connection with the petition filed by Respondents Linda K.S. and Richard S. (hereinafter referred to as “Respondents“), the paternal grandparents, through which they sought visitation with Alexander David. Petitioners contend that Respondents have no standing to seek visitation rights under the provisions of this state‘s grandparent visitation statutes (herein referred to as the “grandparent act” or the “act“),
I. Factual and Procedural Background
The birth parents of Alexander David, Petitioner Carol Jo L. and David Allen C., were divorced by order entered on December 22, 1998. Carol Jo L. was awarded sole care, custody, and control of Alexander David while David Allen C. was awarded visitation rights.3 The divorce order expressly provided that the visitation rights awarded to David Allen C. were to be exercised under the supervision of David Allen C.‘s mother—Respondent Linda K. S.4 Pursuant to the divorce order, Respondent Linda K. S.5 supervised the visitation of David Allen C. with his son and continued the relationship she and her husband had developed and maintained with Alexander David since birth. Respondents represent, and Petitioners do not dispute, that the visitation permitted under the divorce order “turned out to be visitation by Linda and Richard S.... with very little, if any, participation by the child‘s natural father, David Allen C.” This visitation arrangement between Alexander David and his paternal grandparents continued even after the marriage of Petitioners Carol Jo L. and Brandon L. on February 25, 2000. When, however, the adoption of Alexander David by his step-parent, Petitioner Brandon L., became effective on May 11, 2000,6 Carol
Respondents, who were completely unaware of the adoption proceedings until after the adoption was granted, filed an action in the circuit court on May 23, 2000, through which they sought visitation rights with Alexander David. Pursuant to a telephone conference held on June 12, 2000, the family law master considered Respondents’ request for temporary visitation along with Petitioners’ motion to dismiss, which was predicated on their argument that Respondents lacked standing under the grandparent act. Concluding that Respondents had no standing to pursue visitation rights, the family law master recommended dismissal of Respondents’ petition. Respondents sought review of this recommended disposition before the circuit court and by order entered on September 22, 2000, the circuit court rejected the family law master‘s recommendation and recommitted the matter to the family law master for “a full hearing to determine whether the requested grandparent visitation would be in the best interests of the infant child and would not substantially interfere with the parent-child relationship, in accordance with the factors delineated in
II. Standard of Review
Based on their contention that Respondents have no standing to seek visitation rights under the provisions of this state‘s grandparent act, Petitioners argue that the lower court had no jurisdiction to hear this matter. As we held in syllabus point three of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), “‘Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute for [a petition for appeal] or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).” As an alternate basis for the writ, Petitioners assert that the grandparent act is unconstitutional, both on its face and as applied to this case, citing their right to substantive due process. See State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, n. 1, 373 S.E.2d 484, n. 1 (1988) (stating that “[p]rohibition may be used as a means to test the constitutionality of a statute“). We proceed to determine whether the lower court was acting within its jurisdictional grant when it entered the order from which this proceeding arises and whether the grandparent act is unconstitutional, either on its face or in application to this matter.
III. Discussion
A. Standing
After acknowledging that the grandparent act, by its own express declaration, is the exclusive statutory scheme for resolving issues of grandparent visitation, Petitioners conclude that only grandparents who have secured visitation rights prior to an adoption have standing under our statutory scheme. See
(a) The remarriage of the custodial parent of a child does not affect the authority of a circuit court to grant reasonable visitation to any grandparent.
(b) If a child who is subject to a visitation order under this article is later
adopted, the order for grandparent visitation is automatically vacated when the order for adoption is entered, unless the adopting parent is a stepparent, grandparent or other relative of the child.
In viewing the provisions of section 9 of the grandparent act as determinative with regard to the issue of standing, Petitioners are clearly misguided. Standing to proceed under the act is addressed in section 3. That section states: “A grandparent of a child residing in this state may, by motion or petition, make application to the circuit court of the county in which that child resides for an order granting visitation with his or her grandchild.”
In concluding that Respondents had standing, the circuit court relied upon the provisions of section 4(b):
The Court specifically finds that
West Virginia Code § 48-2B-4(b) (1999) is the applicable statute which does provide the Petitioners with standing to petition for grandparent visitation.West Virginia Code § 48-2B-4(b) places no limitations on when or whether a grandparent(s) may petition the Court for visitation. In addition, althoughWest Virginia Code § 48-2B-9(b) (1999) does not specifically address the situation, as in this matter, where no grandparent visitation order has been entered prior to an adoption of the infant child by a stepparent, the code section does not preclude a grandparent(s) from petitioning the Court for visitation.
While section 4(b) is not the provision that provides standing to Respondents, that section is nonetheless applicable because it governs the procedures to be employed in instances, like the case before us, where the visitation petition is not included as a part of another proceeding.
Section 4(b) of the act provides that:
The provisions of this subsection apply when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity is pending. A grandparent may petition the circuit court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child are married. If the grandparent filed a motion for visitation in a previous proceeding for divorce, custody, legal separation, annulment or establishment of paternity, and a decree or final order has issued in that earlier action, the grandparent may petition for visitation if the circumstances have materially changed since the entry of the earlier order or decree.
In matters covered by section 4(b)—cases where no divorce, custody, legal separation, annulment or establishment of paternity proceeding is pending—the following procedures apply:
(c) When a petition under subsection (b) of this section is filed, the matter shall be styled “In re grandparent visitation of [petitioner‘s(s‘) name(s) ].”
(d) The court, on its own motion or upon the motion of a party or grandparent, may appoint a guardian ad litem for the child to assist the court in determining the best interests of the child regarding grandparent visitation.
Section 4(b) of the grandparents act along with subsections (c) and (d), address the procedural particulars involved in those instances when the petition seeking visitation is instituted separate from any ongoing domestic relations proceeding. A simple comparison of section 4(a),9 which applies when there
Choosing to ignore the clear language of section 3, Petitioners rely exclusively on section 9(b) of the act in arguing that Respondents have no standing under the act. Petitioners suggest that, because this section does not reference instances where visitation rights have not been granted pre-adoption, no standing exists for any grandparent to seek visitation rights following an adoption if such rights were not previously established. This argument fails because section 9 expressly deals with the effect of remarriage or adoption on established visitation rights. In suggesting that the absence of language in section 9(b) addressing situations similar to Respondents defeats their right to seek visitation, Petitioners ignore the clear imperatives of sections 3 and 4(b), (c), and (d). See
While the language of section 9(b) does not address the issue of Respondents’ standing, it demonstrates that the Legislature draws a distinction concerning issues of visitation depending on the type of adoption involved. Section 9(b) makes clear that the Legislature both contemplated and approved the continuation of visitation rights following an adoption in those instances where the adoption occurs within the immediate family, as opposed to outside the family.11 In providing that visitation rights which are established preadoption are not to be affected by an adoption that occurs when the adopting parent is a stepparent, grandparent, or other relative of the child, the Legislature was both recognizing the difference between adoptions that occur within and without the immediate family and expressing a preference of continuing established relationships between children and their grandparents in the former instance. Understandably, adoptions that take place outside the immediate family do not permit, nor perhaps should they, the continuation of visitation rights that were granted pre-adoption. See
Respondents argue that the absence of language in the act which addresses their specific circumstances, rather than being an
In a final attempt to defeat Respondents’ standing to pursue visitation rights with their grandchild, Petitioners go outside the act to a statutory provision contained in the adoption statutes. The specific statute upon which Petitioners rely is
(a) Upon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this State, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
Despite the express language of section one of the act, which declares in unmistakably clear terms, that the subject grandparent act, which was enacted in 1998,12 is the “exclusive” legislation with regard to the issue of visitation, Petitioners nonetheless maintain that the adoption statutes are controlling on the issue of grandparent visitation.
Even if we were to conclude that the act and
In a case decided before the adoption of the current grandparent act, In re Nearhoof, 178 W.Va. 359, 359 S.E.2d 587 (1987), we addressed the precise issue that Petitioners raise in this case: whether
We find significant the fact that, despite the passage of fourteen years since the Nearhoof decision, the Legislature has yet to enact legislation expressly denying grandparent visitation following adoptions. Rather than enacting such prohibitory legislation, the Legislature has expressed a clear preference, through the proviso language included in section 9(b), for continuing established visitation rights where an adoption involves a “stepparent, grandparents, or other relative.”
It is biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biological terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child‘s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known.
178 W.Va. at 364, 359 S.E.2d at 592 (quoting Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199, 204-05 (1975)). Having found no statutory impediment to the issue of standing, we proceed to determine whether a constitutional defect prevents implementation of the grandparent act.
B. Constitutionality of Grandparents Act
Petitioners assert that the grandparent act is unconstitutional, on its face and in application, based on the recent ruling of the United States Supreme Court in Troxel, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. Under consideration in Troxel was the following broadly worded two-sentence statute: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”
After discussing the underlying basis of the liberty interest15 that is implicated with
a parent‘s rights concerning the care, custody, and control of her children, the Court proceeded to consider what had ensued in the Troxel case. In response to the paternal grandparents’ request that they be granted visitation rights with their two granddaughters,16 the trial court, based mostly on his own positive experiences as a child,17 determined that it would be in the best interests of the children to have expanded contact with their grandparents and ordered that the grandparents could have one weekend of visitation per month, one week in the summer, and time on both of the petitioning grandparents’ birthdays. 530 U.S. at 71, 120 S.Ct. 2054.
In attacking the trial court‘s ruling in Troxel, the Supreme Court heavily criticized the lower court‘s alteration of the burden of proof:
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville‘s [mother‘s] determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption.... In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.
530 U.S. at 69, 120 S.Ct. 2054. Rather than requiring the grandparents to prove that visitation would be in the best interests of the children, the trial court reversed this burden and imposed it on the children‘s mother, the non-petitioning party.
Also critical to the ruling in Troxel was the failure of the Washington Supreme Court to give the statute at issue a more narrow interpretation. The high Court found disfavor with the fact that the Washington statute “contains no requirement that a court accord the parent‘s decision any presumption of validity or any weight whatsoever.” 530 U.S. at 67, 120 S.Ct. 2054. The Supreme Court also disliked the fact that the Washington statute, unlike the West Virginia act, was so broadly written that it applied to any third party and was not limited to grandparents or other parties who had a specific relationship with the child[ren] in issue. Id. Given the absence of any limiting factors within the statute or any interpretational limitations imposed by the Washington Supreme Court, the Court in Troxel was concerned with the inevitability of a judge imposing his own “best interest” standard and totally disregarding the stated preferences of the parent where there had been no showing of unfitness with regard to that parent. Id.
Despite all these shortcomings—a broadly written statute that provided for no consider-
Because we rest our decision on the sweeping breadth of
§ 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best ‘elaborated with care.’ Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.
530 U.S. at 73, 120 S.Ct. 2054 (emphasis supplied).
After discussing the deficiencies of the Washington statute with regard to its “fail[ure] to provide any protection for Granville‘s [mother‘s] fundamental constitutional right to make decisions concerning the rearing of her own daughters,” the United States Supreme Court identified, with seeming approval, the statutes of seven other states and noted specific language contained in those statutes that stood in contrast to the Washington statute. See Troxel, 530 U.S. at 70, 120 S.Ct. 2054, citing, inter alia,
The West Virginia statutory scheme stands in stark contrast to the simplistic and broadly-worded two-sentence Washington statute scrutinized in Troxel. As an initial matter, our statute does not permit just “any person” to file a petition under the act. See
(1) The age of the child;
(2) The relationship between the child and the grandparent;
(3) The relationship between each of the child‘s parents or the person with whom the child is residing and the grandparent;
(4) The time which has elapsed since the child last had contact with the grandparent;
(5) The effect that such visitation will have on the relationship between the child and the child‘s parents or the person with whom the child is residing;
(6) If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child;
(7) The time available to the child and his or her parents, giving consideration to
such matters as each parent‘s employment schedule, the child‘s schedule for home, school and community activities, and the child‘s and parents’ holiday and vacation schedule; (8) The good faith of the grandparent in filing the motion or petition;
(9) Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent;
(10) Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child‘s parent or parents; or
(11) Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent‘s residence.
(12) The preference of the parents with regard to the requested visitation; and
(13) Any other factor relevant to the best interests of the child.
In light of these extensive and significant improvements over the Washington statute, we find Petitioners’ statement that “[e]ach of the deficiencies the Supreme Court identified in the Washington statute is present in
After comparing the provisions of our grandparent act with the flaws identified by the Court in Troxel, we conclude that the act, by its terms, does not violate the substantive due process right of liberty extended to a parent in connection with his/her right to exercise care, custody, and control of his/her child[ren] without undue interference from the state. See Troxel, 530 U.S. at 65-66, 120 S.Ct. 2054. Our statutory scheme addresses almost every concern addressed by the Court in Troxel and many of those concerns are alleviated outright by the overarching standard that requires all visitation decisions to be reached by applying a two-prong standard of best interests and lack of substantial interference with the parent-child relationship. See
Although we find no impediment to Respondents’ standing and thus to enforcement of the lower court‘s order directing that the matter proceed to an evidentiary hearing, we wish to make clear that our decision on standing has no bearing on the more difficult issues yet to be resolved: whether an award of visitation is in the best interests of the child and will not substantially interfere with the parent-child relationship. See
We perceive that the statutory scheme for grandparent visitation—which provides for two ultimate determinations by the trial court, related both to the best interests of the child[ren] involved and to the protection of the parent-child relationship from any significant interference—constitutes a workable means by which the legitimate interests of the child[ren] in maintaining a viable relationship with their grandparent[s] and the liberty interests of parents relative to the care, custody, and control of their children can be effectively examined, protected, and promoted. Under the statutory scheme adopted by the Legislature, which provides for a hearing on the issue of whether reasonable visitation rights should be granted, there is no question that Respondents are entitled to present their evidence and be heard. We wish to emphasize that our ruling today has done nothing to change the availability of the court system to grandparents seeking visitation rights. Consistent with our obligation to uphold a legislative enactment as constitutional when at all possible, we have merely recognized the broad grant of standing22 extended to grandparents by the Legislature under the act. See Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965) (stating that “[e]very reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question“). Thus, rather than making new law, we have merely interpreted the act‘s existing provisions in light of the pronouncements made by the United States Supreme Court in Troxel. And, as discussed in full above, we have found West Virginia‘s act to be well within the constitutional concerns addressed in Troxel, given the act‘s specific identification of parental preference as a factor that directly impacts on the issue of visitation. We note particularly that the grandparent visitation permitted by the Legislature here cannot be ordered by the circuit court without an affirmative finding that such visitation will not cause a substantial interference in the parent-child relationship, as well as an affirmative finding that such visitation meets the traditional test of serving the best interests of the child. In short, if the circumstances fail either prong of that legislatively-defined test, then the plea for
While it would certainly be preferable for the adults involved in these visitation issues to reach an agreed and written accommodation, with or without the formal approval of a court order, we recognize that this will not always be the case. In those, hopefully few, cases where the matter cannot be resolved without a court deciding one or more of the issues, it appears to this Court that the statute under consideration provides a comprehensive and fair means by which the best interests of the child[ren] and the relationships with their respective parent[s] or grandparent[s] can be protected from harm resulting either from the inconsiderate or excessive demands of grandparents or the obstinate or unreasonable and insignificant objections of parents, any of which may, on occasion, be driven more by emotion than pursuit of the proper interests of the children and their parents. Because we recognize the likely sensitivity and difficulty of such circumstances, we urge the lower courts to be particularly attentive to the need for careful and complete findings of fact and conclusions of law when ruling on actions brought under this act. See
Finding no basis for issuing the requested writ of prohibition, we hereby deny Petitioners’ request for extraordinary relief.
Writ denied.
DAVIS, Justice, dissenting.
Before the deliverance of the majority‘s decision herein, an order of adoption was considered to be a complete divestiture of an adoptee‘s former familial and legal ties and the creation of a unique adoptive family unit with correspondingly new legal relationships among those family members. The Opinion in the case sub judice, though, not only unsettles the once certain world of adoption, causing adoptees and adopters alike to constantly question the security of their court-established rights, it also contravenes the preeminent law of this State which dictates the applicability of new pronouncements of law. For these reasons, I respectfully dissent.
A. Finality
The first source of contention I have with the majority‘s opinion is its resolute disregard of the heretofore understood force and effect of adoption orders: finality. “Finality is of the utmost importance in an adoption.” State ex rel. Smith v. Abbot, 187 W.Va. 261, 266, 418 S.E.2d 575, 580 (1992). In this respect, it has been stated that
[t]he most drastic and far-reaching action that can be taken by a court of equity is to enter a final order of adoption. Such an order severing the ties between a parent and a child is as final, and often as devastating, as though the child had been delivered at birth to a stranger instead of into the arms of his natural mother or father. Custody of children and child support are matters that remain within the breast of the court and are subject to change and modification so long as a child is a minor. This is not true of adoptions. Once an order of adoption becomes final, the natural parent is divested of all legal rights and obligations with respect to the child, and the child is free from all legal obligations of obedience and maintenance in respect to them. The child, to all intents and purposes, becomes the child of the person adopting him or her to the same extent as if the child had been born to the adopting parent in lawful wedlock.
14A Michie‘s Jurisprudence Parent and Child § 27, at 285 (2001) (emphasis added) (footnote omitted). These sentiments are echoed by the adoption law of this State which proclaims that
[u]pon the entry of [an] order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this State, and shall be di-vested of all obligations in respect to the
said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
(a) An order or decree of adoption is a final order for purposes of appeal to the supreme court of appeals on the date when the order is entered. An order or decree of adoption for any other purpose is final upon the expiration of the time for filing an appeal when no appeal is filed or when an appeal is not timely filed, or upon the date of the denial or dismissal of any appeal which has been timely filed.
(b) An order or decree of adoption may not be vacated, on any ground, if a petition to vacate the judgment is filed more than six months after the date the order is final.
(c) If a challenge is brought within the six-month period by an individual who did not receive proper notice of the proceedings pursuant to the provisions of this chapter, the court shall deny the challenge, unless the individual proves by clear and convincing evidence that the decree or order is not in the best interest of the child.
(d) A decree or order entered under this chapter may not be vacated or set aside upon application of a person who waived notice, or who was properly served with notice pursuant to this chapter and failed to respond or appear, file an answer or file a claim of paternity within the time allowed.
(e) A decree or order entered under this chapter may not be vacated or set aside upon application of a person alleging there is a failure to comply with an agreement for visitation or communication with the adopted child: Provided, That the court may hear a petition to enforce the agreement, in which case the court shall determine whether enforcement of the agreement would serve the best interests of the child. The court may, in its sole discretion, consider the position of a child of the age and maturity to express such position to the court.
(f) The supreme court of appeals shall consider and issue rulings on any petition for appeal from an order or decree of adoption and petitions for appeal from any other order entered pursuant to the provisions of this article as expeditiously as possible. The circuit court shall consider and issue rulings on any petition filed to vacate an order or decree of adoption and any other pleadings or petitions filed in connection with any adoption proceeding as expeditiously as possible.
(g) When any minor has been adopted, he or she may, within one year after becoming of age, sign, seal and acknowledge before proper authority, in the county in which the order of adoption was made, a dissent from such adoption, and file such instrument of dissent in the office of the clerk of the circuit court which granted said adoption. The clerk of the county commission of such county and the circuit clerk shall record and index the same. The adoption shall be vacated upon the filing of such instrument of dissent.
As is evidenced by the above-quoted authorities, once the proceedings surrounding an adoption have been concluded, the ultimate import of the court‘s final order of adoption is just that—to serve as a final and complete resolution of the adoptee‘s former and forthcoming familial and legal relationships, thereby providing him/her with the comfort and knowledge of future certainty. Despite this legislatively intended result, however, the majority of this Court has, in just one Opinion, completely obviated the security attending the conclusion of adoption proceedings by allowing grandparents, who
By reaching the decision announced herein, the majority has permitted grandparents, in general, to petition courts for visitation with their former grandchildren after their familial relationship has been terminated as a result of the grandchild‘s adoption. See
Moreover, my colleagues suggest, at the end of Section III.A of the majority Opinion, supra, that the Legislature could have amended the adoption statutes to address the present scenario and that their failure to do so necessitates reliance solely on the grandparent visitation statutes. See
Because the adoption statutes at issue herein do, in fact, address the issue of grand-
B. Prospective Application
The second issue on which I part company with my brethren herein is the proposed application of the instant Opinion. While my colleagues adhere to the belief that this decision should be given retroactive effect, the applicable law supports only the prospective application of the Court‘s holding. Typically, the prospective/retroactive dilemma is resolved through the contemplation of several factors:
In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.
Syl. pt. 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979) (emphasis added). Among these enumerated criteria, I am most concerned with the fourth and fifth factors which address the difficulties attending the majority‘s decision in this case insofar as it represents a dramatic departure from the existing statutory law regulating adoptions and grandparental visitation rights.
In the proceedings underlying the instant appeal, it appears that Alexander David‘s biological parents, Carol Jo L. and David Allen C., complied with the statutory requirements for obtaining consent to and giving notice of Brandon L.‘s prospective adoption of his stepson. See
By allowing retroactive application of the instant decision, the majority has effectively amended the statutory law governing both adoption and grandparents’ visitation rights to include a class of grandparents never contemplated by either of these promulgations. Primarily, the consent and notice provisions of the adoption laws of this State are designed to shield parents and children alike from difficulties that may arise when persons who have protected interests have not been made parties to such proceedings. Perhaps no case in this Court‘s recent history illustrates this point more poignantly than Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720 (1998), cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999), wherein a biological mother‘s failure to notify her child‘s biological father of their son‘s adoption resulted in protracted litigation in this Court on claims of tortious interference and fraud nearly seven years after the child‘s birth and when the child‘s adoptive fate had long been sealed. As further insurance against late-asserted claims, the Legislature has additionally included within the list of those persons entitled to notice of adoption proceedings “[a]ny person ... who has visitation rights with the child under an existing court order issued by a court in this or another state.”
Moreover, the Court‘s decision herein drastically changes the scope of persons entitled to pursue visitation in accordance with the grandparents’ visitation statutes. As I discussed in Section A., supra, the entry of a final order of adoption effectively changes the legal and familial relationships of the parties thereto by divesting the pre-adoption lineages and obligations and replacing them with ties indicative of the post-adoption state of affairs. Among the divestitures that take place in the course of an adoption are those of “the lineal or collateral kindred of any” person who was previously entitled to parental rights.
Accordingly, for the foregoing reasons, I respectfully dissent. I am authorized to state that Justice MAYNARD joins me in this dissenting opinion.