Lindsie Dl v. RICHARD WS

• Decision Date: 04 December 2003
• Docket Number: No. 31562.,31562.
• Citation: 591 S.E.2d 308,214 W.Va. 750
• Parties: LINDSIE D.L., Petitioner, v. RICHARD W.S., Respondent.
• Court: West Virginia Supreme Court

591 S.E.2d 308

214 W.Va. 750

LINDSIE D.L., Petitioner, v. RICHARD W.S., Respondent.

No. 31562.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 2003.

Decided December 4, 2003.

John G. Ours, Esq., Petersburg, for Lindsie D.L.

Marla Zelene Harman, Esq., Franklin, Guardian ad Litem for Lindsie D.L.

Patricia L. Kotchek, Esq., Geary & Geary, Petersburg, for Richard W.S.

Joyce E. Stewart, Esq., Moorefield, Guardian ad Litem for Cassandra N.S MAYNARD, Justice.

Lindsie D.L.,¹ a minor, by her next friend and legal guardian, Judy P., appeals the February 3, 2003, order of the Circuit Court of Grant County that dismissed what she styled as a "Petition or Motion for Visitation," in which she requested the circuit court to grant her the right to regular visitation with her minor half-sibling. We choose to treat this appeal as a petition for a writ of habeas corpus which we believe to be the correct procedural vehicle to determine the issues herein. Accordingly, to allow us to proceed under the habeas framework, we deem that Lindsie D.L., by her next friend and legal guardian, Judy P., now asks to have Lindsie's half-sister, Cassandra N.S., brought before the circuit court and, after due notice to Cassandra's parent, Richard W.S., to have the circuit court, after taking evidence and upon application of the principles set forth in this opinion, determine whether visitation of Lindsie with her half-sister, Cassandra, should be awarded.

I. FACTS

The petitioner, Lindsie D.L., was born to Dennis L. and Debbie M.L. on September 27, 1991, in Virginia. Lindsie's father, Dennis, was killed in 1995 in an accident at a construction site. Lindsie and her mother, Debbie M.L., subsequently moved to Grant County, West Virginia.

Thereafter, Debbie M.L. began a relationship with the respondent, Richard W.S., which resulted in the birth of Cassandra N.S. on May 23, 2000. Richard W.S. acknowledged paternity of Cassandra by a notarized "Declaration of Paternity" Affidavit the next day. Also, a certificate of live birth was filed for Cassandra with certification of personal information by Debbie M.L. in which Richard W.S. was identified as Cassandra's father. Lindsie and Cassandra lived together as sisters in the same household with their mother, Debbie M.L., from Cassandra's birth until October 1, 2001. On that date, Debbie M.L. was tragically killed in an automobile accident.

Pursuant to Debbie M.L.'s will, her mother, Mary Z., became Lindsie's guardian. Cassandra's father, Richard W.S., filed a petition for custody of Cassandra which was challenged by Mary Z. The Family Court of Grant County granted Richard W.S.'s petition, and found:

9. Due to the death of Debbie [M.L.], Petitioner is the sole living parent of Cassandra [N.S.].

10. Petitioner's custodial rights as the sole living parent of Cassandra [N.S.] are superior to those of Respondent[,] and Petitioner has rights protected by the Constitutions of the United States and the State of West Virginia as the legal parent of Cassandra [N.S.] to custody of his child unless he is unfit.

11. There is no evidence that Petitioner is not a fit parent.

12. Petitioner's custody of Cassandra [N.S.] should be confirmed and the Petition should be granted so that Petitioner shall have sole custody of her and sole custodial and decision-making responsibility for her.

Mary Z. subsequently appealed the Family Court order to the Circuit Court of Grant County which affirmed the order.

On December 5, 2002, Lindsie, in her own capacity, and by her legal guardian and next friend, Judy P.,² filed a "Petition Or Motion For Visitation" in the Circuit Court of Grant County in which she asserted, inter alia, that regular visitation would be in the best interest of the emotional health and well-being of both children. Richard W.S. moved to dismiss Lindsie's petition. By order of February 3, 2003, the circuit court found that because there is no common law or statutory right of visitation with a minor half-sibling, the circuit court has no jurisdiction of the subject matter. Accordingly, the circuit court dismissed the petition.

II. DISCUSSION

In its order dismissing Lindsie's petition, the circuit court determined that there is no legal right to visitation with a minor half-sibling. However, in the 1989 case of Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322, this Court held in Syllabus Point 2, in part, that "[a]lthough 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... half-sibling." Despite Richard W.S.'s strong efforts to distinguish Honaker from the instant case, actually the facts are really quite similar. Honaker involved the custody of a six-year old girl named Elizabeth Honaker. Elizabeth's parents divorced when she was just a little more than one-year-old and her custody was granted to her mother subject to reasonable visitation by her father. Subsequent to that divorce, Elizabeth's mother remarried and the couple had a son together. Elizabeth lived with her mother, stepfather and half-brother for about three and one-half years until her mother was killed in an automobile accident. In her last will and testament, Elizabeth's mother named as guardian of her two children Elizabeth's stepfather. Thereafter, Elizabeth's natural father sought and was granted custody of Elizabeth. In order to help lessen the emotional trauma Elizabeth suffered as a result of the death of her mother, the circuit court provided for a six-month transition period for the transfer of custody. The circuit court also stayed the execution of the custody order during the time period necessary for the stepfather to petition for appeal with this Court. Elizabeth's natural father then petitioned this Court for a writ of mandamus and/or prohibition, arguing that he was entitled to immediate custody of his daughter.

This Court thereupon denied the writ, and remanded to the circuit court with directions that the circuit court formulate a specific plan for transition to the natural father that would serve to alleviate any unnecessary trauma to Elizabeth, and to establish reasonable visitation rights with the stepfather and the half-sibling. In that case, we explained our rationale as follows:

We must ... consider ... what will be in the best interests of Elizabeth with regard to a continued relationship with her stepfather and half-brother Kinder. Undoubtedly, Elizabeth's best interests must be the primary standard by which we determine her rights to continued contact with other significant figures in her life.... "It is the benefit of the child that is vital." "Visitation is ... aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child's emotional well being by permitting partial continuation of an earlier established close relationship." Looper v. McManus, 581 P.2d 487, 488 (Okla.Ct.App.1978)....

The best interests of the child concept with regard to visitation emerges from the reality that [t]he modern child is considered a person, not a sub-person over whom the parent has an absolute and irrevocable possessory right. The child has rights.... Another concern is the need for stability in the child's life.... [T]ermination of visitation with individuals to whom the child was close would contribute to instability rather than provide stability.... [E]ach case should be considered on its own facts[.]

Honaker, 182 W.Va. at 452, 388 S.E.2d at 325-26 (internal quotation marks and footnotes omitted). Based on the foregoing, we now conclude that Lindsie may have a right to continued visitation with her half-sibling.³

We are also mindful, however, that Lindsie's best interest is not the only consideration here. Visitation also must be in the best interest of Cassandra. Further, Lindsie's request for continued visitation implicates Richard W.S.'s fundamental liberty interests as a parent. Clearly, fit parents have the right to bring up their children as they choose. In the recent case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000),⁴ the United States Supreme Court found that the application of a Washington nonparental visitation statute to a parent and her family violated the parent's due process rights to make decisions concerning the care, custody, and control of her daughters. The Supreme Court explained:

The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166, 64 S.Ct. 438.

Troxel, 530 U.S. at 65-66, 120...