In re Hunter H.

• Decision Date: 14 March 2013
• Docket Number: No. 12–0173.,12–0173.
• Citation: In re Hunter H., 231 W.Va. 118, 744 S.E.2d 228 (W. Va. 2013)
• Court: West Virginia Supreme Court
• Parties: In the Matter of HUNTER H.

231 W.Va. 118

744 S.E.2d 228

In the Matter of HUNTER H.

No. 12–0173.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 20, 2013.

Decided March 14, 2013.

Concurring in part and Dissenting in part

Opinion of Justice Workman

June 17, 2013.

Syllabus by the Court

1. The Grandparent Visitation Act, W.Va.Code § 48–10–101 et seq. [2001], is the exclusive means through which a grandparent may seek visitation with a grandchild.

2. The best interests of the child are expressly incorporated into the Grandparent Visitation Act in W.Va.Code §§ 48–10–101, 48–10–501, and 48–10–502 [2001].

3. Pursuant to W.Va.Code § 48–10–902 [2001], the Grandparent Visitation Act automatically vacates a grandparent visitation order after a child is adopted by a non-relative. The Grandparent Visitation Act contains no provision allowing a grandparent to file a post-adoption visitation petition when the child is adopted by a non-relative.

Lisa M. Hawrot, Esquire, Spilman Thomas & Battle, PLLC, Jacob A. Manning, Esquire, Dinsmore & Shohl, LLP, Wheeling, WV, for Respondents, Jerry and Joyce W.

Robert G. McCoid, Esquire, McCamic, Sacco, & McCoid, PLLC, Wheeling, WV, for Petitioner, Donna D.

Patrick Morrisey, Esquire, Attorney General, Katherine M. Bond, Esquire, Assistant Attorney General, for DHHR.

Joseph J. Moses, Esquire, Wheeling, WV, Guardian ad Litem for the Minor Child Hunter H.

KETCHUM, J.:

The Circuit Court of Ohio County has submitted a certified question asking whether a court may order continued visitation to a grandparent when the child is adopted by a non-relative. Our review of this question is controlled by the Grandparent Visitation Act, W.Va.Code § 48–10–101 et seq. [2001]. After thorough review, we conclude that the Grandparent Visitation Act does not provide for continued grandparent visitation after a child is adopted by a non-relative. Accordingly, we answer the certified question in the negative. ¹

I. Factual & Procedural Background

This matter was previously before the Court in In re Hunter H., 227 W.Va. 699, 715 S.E.2d 397 (2011). Hunter ² was approximately 17 months old at the time an abuse and neglect petition was filed.³ Both of Hunter's biological parents had their parental rights terminated. Hunter was initially placed with his maternal grandmother, petitioner Donna D. (“grandmother” or “Grandmother Donna”). Hunter was removed from his grandmother's house shortly after this placement due to concerns about Grandmother Donna's then-husband. After being removed from his grandmother's house, Hunter was placed with a foster family, respondents Joyce and Jerry W., where he resided from August 2007 through August 2010. Hunter's guardian ad litem commented on Hunter's time with his foster family, stating that Hunter “was thriving with his foster family, identified his foster parents as ‘mom’ and ‘dad’ and identified his foster parents' daughter as ‘sis.’ ” Hunter H., 227 W.Va. at 702, 715 S.E.2d at 400.

After the Department of Health and Human Resources (“DHHR”) conducted a successful home study of Grandmother Donna's residence, she petitioned the circuit court for permanent custody of Hunter. In August of 2010, the circuit court ordered that Hunter be removed from his foster family, over their objection, and that he be permanently placed with Grandmother Donna. Joyce and Jerry W. appealed and this Court reversed the circuit court's ruling, finding that the circuit court elevated the grandparent preference contained in W.Va.Code § 49–3–1(a)(3) [2001] over the best interest of the child. The Court ordered that Hunter be transitioned back to Joyce and Jerry W. for permanent placement.

Hunter was returned to Joyce and Jerry W.'s custody on November 1, 2011. Joyce and Jerry W. agreed to let Grandmother Donna have four-hour visits with Hunter twice a month. They also allowed Grandmother Donna to call Hunter on the telephone twice a week. Grandmother Donna was not satisfied with the amount of visitation she was receiving and petitioned the circuit court for additional contact with Hunter. Over Joyce and Jerry W.'s objection, the circuit court entered an order on January 20, 2012, granting Grandmother Donna overnight visitation with Hunter every other weekend.⁴

Joyce and Jerry W. were in the middle of the six-month adoption waiting period when this order was entered.⁵ After the entry of this order, the issue arose as to whether a grandmother could continue to receive visitation after a child has been adopted by a non-relative. Grandmother Donna conceded that “[w]ithout question, W.Va.Code § 48–22–703 entitles an adopting parent to unfettered rights as a parent and generally precludes grandparents from exercising visitation pursuant to ... the Grandparent Visitation Act.” She went on to argue, however, that under a best interest of the child analysis, she was entitled to receive post-adoption visitation with Hunter. Joyce and Jerry W. argued that the Legislature plainly contemplated this precise situation in W.Va.Code § 48–10–902 [2001], which states,

If a child who is subject to a grandparent 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.

Joyce and Jerry W. asked the circuit court to apply the statute and deny Grandmother Donna's request for continued visitation. The circuit court thereafter submitted the following certified question to this Court:

Does a child's right to continued association with individuals with whom he has formed a close emotional bond, i.e. his maternal grandmother, continue post-adoption by non-relatives, provided that a determination is made that such continued association is in the best interests of the child?

The circuit court answered the certified question in the affirmative. This Court accepted the certified question for review.

II. Standard of Review

“The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal–Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Following this standard, we proceed to consider the certified question presented.

III. Analysis

The issue before us is whether a court may order continued visitation to a grandparent when a child is adopted by a non-relative. Our resolution of this issue is controlled by the Grandparent Visitation Act set forth in W.Va.Code § 48–10–101 et seq. [2001]. The Grandparent Visitation Act is the exclusive means through which a grandparent may seek visitation. W.Va.Code § 48–10–102 states, “It is the express intent of the Legislature that the provisions for grandparent visitation that are set forth in this article are exclusive.” In State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 755, 551 S.E.2d 674, 677 (2001), this Court stated that the “grandparent act, by its own express declaration, is the exclusive statutory scheme for resolving issues of grandparent visitation.”

The Legislature expressly incorporated the best interests of the child considerations into the Grandparent Visitation Act. W.Va.Code § 48–10–101 states

[t]he Legislature finds that circumstances arise where it is appropriate for circuit courts of this state to order that grandparents of minor children may exercise visitation with their grandchildren. The Legislature further finds that in such situations, as in all situations involving children, the best interests of the child or children are the paramount consideration.

Further, W.Va.Code § 48–10–501 provides that “[t]he circuit court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship.” W.Va.Code § 48–10–502 sets forth a list of thirteen factors to be considered in making a determination regarding grandparent visitation. These factors include “[a]ny other factor relevant to the best interests of the child.”

Having established that the Grandparent Visitation Act 1) is the exclusive means through which a grandparent can seek visitation and 2) expressly incorporates the best interests of the child, we turn to W.Va.Code § 48–10–902, supra. This statute, entitled “Effect of adoption of the child,” states that a grandparent's visitation rights are automatically vacated when a child is adopted by a non-relative. Importantly, the Grandparent Visitation Act contains no provision allowing a grandparent to file a post-adoption visitation petition when the child is adopted by a non-relative. In the case sub judice, Hunter was adopted by his non-relative foster parents and Grandmother Donna seeks continuing visitation.

This Court addressed the issue of grandparents' ability to seek visitation under W.Va.Code § 48–10–902 in Brandon L., supra. In Brandon L., the Court recognized that W.Va.Code § 48–10–902 allows a paternal grandparent to petition for visitation with a biological grandchild after the child was adopted by a stepparent. The Court recognized that the Legislature drew a distinction between adoptions that occur within the family and those that occur outside of the family,

[T]he Legislature draws a distinction concerning issues of visitation depending on the type of adoption involved. Section 9(b) [now W.Va.Code § 48–10–902] 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. [footnote omitted] 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...