In re J.S., No. 20-0185

• Court: Supreme Court of West Virginia
• Writing for the Court: WOOTON, Justice
• Citation: 858 S.E.2d 214
• Parties: IN RE ADOPTION OF J.S. and K.S.
• Decision Date: 14 May 2021
• Docket Number: No. 20-0185

858 S.E.2d 214

IN RE ADOPTION OF J.S. and K.S.

No. 20-0185

Supreme Court of Appeals of West Virginia.

Submitted: March 24, 2021
Filed: May 14, 2021

G. Wayne Van Bibber, Esq., Law Offices of G. Wayne Van Bibber & Assoc., PLLC, Hurricane, West Virginia, Counsel for Petitioner, C.R.

Mary Elizabeth Snead, Esq., Law Firm of M. E. Snead, PLLC, Webster Springs, West Virginia, Guardian Ad Litem for the Minor Children.

WOOTON, Justice:

This is an appeal filed by C.R., adoptive mother of J.S. and K.S., from an order of the Circuit Court of Webster County which denied C.R.’s motion to modify a provision in the final adoption orders prohibiting visitation between the children and R.R., C.R.’s former husband.¹ Because we conclude that this provision in the final adoption orders was an impermissible judicial restriction on C.R.’s parental rights, and therefore void, we reverse the circuit court's order denying the motion to modify and remand with instructions for the court to enter amended adoption orders consistent with this opinion.

I. Facts and Procedural Background

The genesis of the instant case was an abuse and neglect proceeding filed by the West Virginia Department of Health and Human Resources ("DHHR") against the natural parents of J.S., now eight years of age, and K.S., now seven years of age.² On October 24, 2016, the parents’ parental and custodial rights were terminated. Both parents appealed, and on October 23, 2017, this Court affirmed the termination of their rights. In re J.S. and K.C. ,³ Nos. 17-0331 & 17-0340, 2017 WL 4772938 (W. Va. Oct. 24, 2016) (memorandum decision). Both prior to and during

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the abuse and neglect proceedings J.S. and K.S. were in the custody of petitioner C.R., their biological aunt, and C.R.’s husband, R.R., and the permanency plan was for them to adopt both children in the event of termination. In this regard, the children had lived with C.R. and R.R. for most of their lives and had a strong bond with both.

At some point during the permanency planning/pre-adoption phase of the abuse and neglect proceedings, evidence arose showing beyond doubt that R.R. was a user of illicit drugs. Although DHHR had earlier consented to the children's adoption by C.R. and R.R., it filed a motion to withdraw its consent as to R.R. By order dated July 19, 2018, the circuit court granted DHHR's motion, concluding that "[i]t is patently unfair to subject the children to [R.R.’s] drug related conduct and to let them be in his custody when the children's parents’ rights were terminated for the same reasons." The court also noted that when questioned under oath about his drug use during an earlier court hearing, R.R. had not been truthful in his denials.

The guardian ad litem, who appeared in these appellate proceedings in opposition to the relief sought by C.R.,⁴ acknowledges that C.R. was "devastated and unaware of R.R.’s behavior, kicked him out of the home and immediately filed for divorce."⁵ Thereafter, C.R. filed an amended petition seeking to adopt J.S. and K.S. as a single parent, and on July 2, 2018, the circuit court signed identical orders granting the adoptions.⁶ However, notwithstanding the unequivocal declaration of C.R.’s parental rights contained in each order, see discussion infra , each order provided in the final paragraph that C.R. was "enjoined and restrained from permitting any contact of any nature by the child with [her] ex-husband [R.R.]."

On October 14, 2019, C.R. filed a motion to modify the injunction contained in the adoption orders, detailing the steps R.R. had taken to overcome his drug addiction: in April, 2019, he completed a seven-day in-patient detoxification program at Highland Hospital; following his discharge from Highland Hospital he completed a twenty-eight-day in-house rehabilitation program at St. Francis Hospital; he has been clean since discharge from St. Francis; and he attends at least ten addiction recovery meetings a week and leads two of those meetings, which are described as "Christ based."

A hearing on C.R.’s motion was held on January 2, 2020, in which C.R. testified in support of the averments in the motion and submitted documentation of R.R.’s consistently clean drug screens and his participation in, and leadership of, numerous peer-led recovery group meetings. C.R. also offered the testimony of both R.R. and Thomas Eagle, R.R.’s mentor and fellow participant in the Reach Up Recovery Ministry, that R.R. had stayed clean, had been a positive influence for others in recovery, and had changed his life in many positive ways.

At the conclusion of the hearing, C.R.’s counsel summed up the evidence in support of the motion for modification. The prosecuting attorney, who appeared as counsel for DHHR, objected on the ground that R.R. had not admitted to his drug problem during the pendency of the adoption proceedings and had taken no steps at that time to address his addiction issues. The guardian ad litem,⁷ when asked by the court to take a

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position, stated that "I will leave it to the discretion of the Court, but I – I am extremely hesitant to recommend contact." However, she also noted that "the children did always have a strong bond with [R.R.] .... And I know it was heartbreaking for the children to be separated from him."

On January 23, 2020, the circuit court entered an order denying the motion for modification, finding that R.R. had not accepted responsibility for his previous actions and his previous false swearing, and further finding that "[a]llowing [R.R.] contact with the children is contrary to the best interest of the children[.]" This appeal followed.

II. Standard of Review

Although the parties to this appeal⁸ have extensively briefed and argued the question of whether the circuit court abused its discretion in denying C.R.’s motion for modification of a provision in the adoption orders which enjoins contact between R.R. and the adopted children, this Court has determined that the dispositive issue in this case is whether the court had the statutory authority to order such a limitation on C.R.’s rights as an adoptive parent. See text infra. This is a question of law which has a constitutional dimension, requiring us to examine both West Virginia Code §§ 48-22-101 to - 903 (2015), which governs adoption proceedings in this State, as well as article III, section 10 of the West Virginia Constitution. We have held that:

[W]here, as here, the question before the circuit court involves the interpretation of the applicable law and governing statutes, our review is plenary. ‘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.’ Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

In re Adoption of Jon L. , 218 W. Va. 489, 492, 625 S.E.2d 251, 254 (2005) ; see also Murrell B. v. Clarence R. , 242 W. Va. 358, 364, 836 S.E.2d 9, 15 (2019) ; State v. Haines , 221 W. Va. 235, 237, 654 S.E.2d 359, 361 (2007).

III. Discussion

As set forth above, this Court has determined that the dispositive issue in this case is whether the circuit court had the statutory authority to limit C.R.’s rights as an adoptive parent, a question which has a constitutional dimension in that it implicates "the fundamental right of a parent to make decisions concerning the care, custody, and control of his or her children." In re K.H. , 235 W. Va. 254, 263, 773 S.E.2d 20, 29 (2015) (citing Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). Although neither party has squarely addressed this issue, this Court has held that "[a] constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case." Syl. Pt. 2, Louk v. Cormier , 218 W. Va. 81, 622 S.E.2d 788 (2005). Further, " ‘[this Court] may, sua sponte, in the interests of justice, notice plain error.’ Syl. Pt. 1, in part, State v. Myers , 204 W. Va. 449, 513 S.E.2d 676 (1998)." Syl. Pt. 1, Cartwright v. McComas , 223 W. Va. 161, 672 S.E.2d 297 (2008). For the reasons set forth herein, we conclude that the instant case falls within these limited exceptions to our usual rules of waiver and/or forfeiture.

The procedures for adoption of minor children in this State are set forth in West Virginia Code §§ 48-22-701 to - 704 (2015), which together provide a detailed roadmap for reaching a goal of singular importance to

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