In re Abbigail Faye B.

Decision Date23 May 2008
Docket NumberNo. 33716.,33716.
CourtWest Virginia Supreme Court
PartiesIn re Abbigail FAYE B.

Syllabus by the Court

1. "The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal." Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).

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, 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 Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

4. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

5. "This Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution." Syllabus point 2, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001).

6. Pursuant to the plain language of W. Va.Code § 44-10-3(a) (2006) (Supp.2007), the circuit court or family court of the county in which a minor resides may appoint a suitable person to serve as the minor's guardian. In appointing a guardian, the court shall give priority to the minor's mother or father. "However, in every case, the competency and fitness of the proposed guardian and the welfare and best interests of the minor shall be given precedence by the court when appointing the guardian." W. Va.Code § 44-10-3(a).

7. Rule 48a(a) of the West Virginia Rules of Practice and Procedure for Family Court requires that if a family court presiding over a petition for infant guardianship brought pursuant to W. Va.Code § 44-10-3 learns that the basis for the petition, in whole or in part, is an allegation of child abuse and neglect as defined by W. Va.Code § 49-1-3, then the family court is required to remove the petition to circuit court for a hearing thereon. Furthermore, "[a]t the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence." West Virginia Rules of Practice and Procedure for Family Court 48a(a).

8. "A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).

9. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syllabus point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

10. "Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters . . . must be the health and welfare of the children." Syllabus point 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

11. "But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody as the welfare of the child at the time appears to require." Syllabus point 4, Green v. Campbell, 35 W.Va. 698, 14 S.E. 212 (1891).

12. "While courts always look to the best interests of the child in controversies concerning his or her custody, such custody should not be denied to a parent merely because some other person might possibly furnish the child a better home or better care." Syllabus point 3, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118(1975).

Noel M. Olivero, Sammons, Olivero & Paraschos, P.L.L.C., Huntington, WV, for the Appellants, Gala P. and Brent P.

Robert E. Wilkinson, Chief Public Defender, Huntington, WV, Guardian ad Litem for the Minor Child, Abbigail Faye B Richard L. Vital, Barboursville, WV, for the Appellees, Joshua S. and Autumn S.

DAVIS, Justice.

The appellants herein and petitioners below, Gala P. (hereinafter "Gala")1 and Brent P. (hereinafter "Brent"), appeal from an order entered July 9, 2007, by the Circuit Court of Cabell County. By that order, the circuit court denied the petitioners' request for guardianship of their minor grandchild, Abbigail Faye B. (hereinafter "Abbigail"), and returned the child's custody to her biological parents, Autumn S.B. (hereinafter "Autumn") and Josh B. (hereinafter "Josh"). On appeal to this Court, Gala and Brent contend that the circuit court erred by concluding that they had failed to meet their burden of proving that (1) Abbigail was abused or neglected and that (2) Autumn was not capable of being a fit parent. The appellants argue further that the circuit court's order denying their request for Abbigail's guardianship is contrary to her welfare and best interests. Upon a review of the parties' arguments, the pertinent authorities, and the record designated for appellate consideration, we affirm the decision of the Cabell County Circuit Court.


The underlying facts are largely undisputed by the parties. The minor child at issue in these proceedings, Abbigail Faye B., was born on August 3, 2006, to Autumn S. and Josh B. At the time of the child's birth, Autumn was seventeen years old2 and resided with her mother, Gala, and her stepfather, Brent. Josh, who was also approximately seventeen years old at that time, resided on the property of Gala and Brent in rooms located above their shop. Abbigail's birth certificate did not list Josh as her father, and the parties disagree as to the reason for this: Gala suggests that Autumn did not want to list Josh as the child's father for fear she would lose custody, while Autumn represents that Gala would not allow her to list Josh's name as the baby's father. In any event, Josh ultimately acknowledged paternity in February 2007.

Approximately three weeks after Abbigail was born, Autumn and Josh attended a family reunion in Paducah, Kentucky, leaving Abbigail in the care of Gala and Brent.3 Upon returning from that trip, Autumn claimed that Josh had raped her while they were in Kentucky, but she later recanted. Also following their return, Josh moved off of Autumn's parents' property. Autumn subsequently returned to high school and continued to reside with her parents.

From the beginning of Abbigail's young life, Gala and Brent appear to have played a very active role in taking care of their grandchild. Although Autumn resided in their home, it seems that she relied heavily upon her parents to help her with Abbigail's care or to actually provide such care for her. Autumn's grandmother, Alice F. (hereinafter "Alice"), also provided substantial care for Abbigail. While Autumn attended high school,4 Gala and Alice would care for Abbigail. Gala contends that she did not believe that Autumn was properly looking after Abbigail's health concerns and states that when Autumn and Josh went to Kentucky, she decided to take over. The record indicates that Abbigail had various health issues, including gastroesophageal reflux disease, problems with her right leg which required physical therapy, and auditory and tactile sensory issues that affected her ability to tolerate new textures and impacted her willingness to eat a variety of foods. Gala suggests that even though Abbigail had these various medical conditions, Autumn did not actively participate in her special feeding routine or follow through with Abbigail's therapy at home.5 Gala also indicates that Josh did not heed Abbigail's feeding requirements and often played with her inappropriately following her feedings by holding her upside down and not holding her upright for thirty minutes after she had eaten. Additionally, Gala reports that Josh had very limited interaction with Abbigail and often just stared at the child without talking to her or touching her.

In the early morning hours of February 20, 2007, Autumn moved out of her parents' home without their knowledge; Autumn left Abbigail in Gala and Brent's care while she established a new residence. On that same date, Autumn filed a domestic violence petition in the Magistrate Court of Cabell County on behalf of Abbigail and against Gala alleging that Gala would not return Abbigail to her. Also on February 20, 2007, Gala filed a pro se petition for appointment of guardian, pursuant to W. Va.Code § 44-10-3 (2006) (Supp.2007), in the Circuit Court of Cabell County, alleging that "Mother has ranaway [sic] & left the baby Abbigail with the materal [sic] Grandparents. The where abouts [sic] of the mother are unknown." The next day, February 21, 2007, Gala filed a domestic violence petition in the Magistrate Court of Cabell County on behalf of Abbigail and against Autumn. Thereafter, Gala and Brent obtained counsel and, by counsel, filed an amended petition for guardianship on March 1, 2007, which amendments include allegations of the...

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