In re Antonio R.A.

• Decision Date: 23 November 2011
• Docket Number: No. 101559.,101559.
• Court: West Virginia Supreme Court
• Parties: In re ANTONIO R.A.

228 W.Va. 380

719 S.E.2d 850

In re ANTONIO R.A.

No. 101559.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 2011.Decided Nov. 23, 2011.

Syllabus by the Court

1. “In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.” Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. “ ‘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 Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).” Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

3. “Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.” Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975).

4. “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).” Syl. Pt. 6, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

5. A family or circuit court's authority to appoint a suitable person as a guardian for a minor, including a minor above the age of fourteen, is derived from West Virginia Code § 44–10–3 (2010), which grants courts discretion in determining when the appointment of a guardian for a minor is appropriate. West Virginia Code § 44–10–4 (2010), which entitles a minor above the age of fourteen to nominate his or her own guardian, applies only after a court has determined, pursuant to West Virginia Code § 44–10–3, that a particular circumstance warrants the appointment of a guardian.

6. “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.” Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

7. “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).

8. “ ‘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).” Syl. Pt. 12, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

9. “A psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian. To the extent that this holding is inconsistent with our prior decision of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990), that case is expressly modified.” Syl. Pt. 3, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).

10. “In exceptional cases and subject to the court's discretion, a psychological parent may intervene in a custody proceeding brought pursuant to W. Va.Code § 48–9–103 (2001) (Repl.Vol.2004) when such intervention is likely to serve the best interests of the child(ren) whose custody is under adjudication.” Syl. Pt. 4, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).

11. “Although custody of minor child should be with the natural parent absent proof of abandonment or some form of misconduct or neglect, the child may have a right to continued visitation rights with the stepparent or half-sibling.” Syl. Pt. 2, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989).

Linda Hausman, Esq., Kaufman & McPherson, PLLC, Bridgeport, WV, for Petitioner.

Amy L. Lanham, Esq., Delby B. Pool & Associates, Clarksburg, WV, Guardian ad Litem.

Steven B. Nanners, Esq., Nanners & Willett, L.C., Buckhannon, WV, for Respondent Gina H.Jorge A., Pro Se, Respondent.WORKMAN, C.J.:

This case calls upon the Court to interpret West Virginia law governing the appointment of guardians for minors. Specifically, this case involves a minor above the age of fourteen who has nominated a third party, his grandmother, to be his guardian. The guardianship is contested by the minor's non-offending, biological mother. The grandmother contends that West Virginia Code § 44–10–4 (2010) and the case law interpreting it require courts to appoint any guardian nominated by a minor above the age of fourteen, unless the guardian is “unfit.” The Circuit Court of Harrison County, West Virginia, refused to interpret the statute in such a manner, however, holding instead that appointing a third party as a guardian for a minor over the objection of a non-offending, biological parent would violate that parent's constitutional right to the custody of his or her own child. Because the petitioners' interpretation of the relevant law is misguided, and because the circuit court did not abuse its discretion in this matter, the ruling below is affirmed.

I. FACTS AND PROCEDURAL HISTORY

The child at issue in this case, Antonio R. A.,¹ was born on February 22, 1994. For most of his childhood, from age three until approximately age thirteen, Antonio resided with his maternal grandmother, Carol G., in Harrison County, West Virginia. His father, Jorge A., currently resides out-of-state. Antonio visits his father regularly but has never resided with him. Antonio's mother, Gina H., currently resides in Upshur County, West Virginia, with her husband, Sidney H., and Antonio's two half-siblings born to a prior marriage of Gina H. to Barry B.

In the summer of 2006, when Antonio was approximately thirteen years old, Gina H. brought him to live with her, Sidney H., and Antonio's two half-siblings in Upshur County. This living arrangement lasted approximately three years, until October 25, 2009, when Antonio's former step-father, Barry B., obtained an emergency domestic violence protective order on behalf of Antonio and his half-siblings, removing them from Gina and Sidney H.'s home. At that time, Antonio returned to Carol G.'s home and expressed a desire to have Carol G. become his permanent legal guardian.

On October 29, 2009, Carol G. filed a “Petition for Permanent Guardianship and Emergency Temporary Guardianship” in the Family Court of Harrison County, West Virginia. In that petition, she argued that, pursuant to West Virginia Code § 44–10–4 and Rule 6 of the West Virginia Rules of Practice and Procedure for Minor Guardianship Proceedings, Antonio should be permitted to nominate his own guardian as he is over the age of fourteen. She asserted that she would be a “fit” guardian, as required by statute, and indicated that Antonio's father, Jorge A., intended to waive his priority right to appointment under West Virginia Code § 44–10–3 (2010). Carol G. additionally filed a document entitled “Nomination of Guardian,” signed by Antonio and notarized, in which Antonio “nominates and requests” that Carol G. be appointed as his guardian.

On November 16, 2009, the family court ordered that Antonio remain in Carol G.'s care temporarily, until the petition for guardianship could be resolved. On December 9, 2009, Carol G. filed an amended petition for guardianship including allegations of abuse and neglect against Gina and Sidney H.²

In the meantime, as a result of the allegations forming the basis for the emergency protective order, the West Virginia Department of Health and Human Resources, Division of Child Protective Services, conducted an investigation into the alleged abuse and neglect of all three of Gina H.'s children. In a report submitted to the family court on November 30, 2009, Alison Daugherty, a Child Protective Services worker, concluded that the allegations did not rise to the level of abuse or neglect. She recommended...