State ex rel. Miller v. Locke

Decision Date10 April 1979
Docket NumberNo. 14267,14267
Citation162 W.Va. 946,253 S.E.2d 540
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Martin Lee MILLER, Sr., et al. v. Hon. Kermit A. LOCKE, Circuit Judge, et al.

Syllabus by the Court

1. W.Va.Code, 49-6-3 is constitutional on its face.

2. A statute may be constitutional as written yet be unconstitutionally applied in a given case.

Daniel F. Hedges, Charleston, for relators.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Withers, Sp. Asst. Atty. Gen., Charleston, for respondents.

PER CURIAM:

In this habeas corpus proceeding the relators challenge the constitutionality of W.Va. Code, 49-6-3, the emergency taking provision of the West Virginia Child Welfare Act. After carefully considering the arguments of counsel, we conclude that the statute is constitutional on its face.

On June 15, 1978, respondent, Judge Locke, ordered that custody of infant Elvis Jay Miller be temporarily transferred from the relators, his natural parents, to the West Virginia Department of Welfare. The judge's order, entered pursuant to the provisions of W.Va. Code, 49-6-3, authorized the transfer even though the relators had been given no notice of the action and even though they had been afforded no opportunity to be heard.

W.Va. Code, 49-6-3, provides, in part:

"(a) Upon the filing of a petition, the court may order that the child be delivered for not more than ten days into the custody of the state department or a responsible relative, pending a preliminary hearing, if it finds that: (1) There exists imminent danger to the physical well-being of the child, and (2) there are no reasonably available alternatives to removal of the child, including, but not limited to, the provision of medical, psychiatric, psychological or homemaking services in the child's present custody. . . .

(b) Whether or not the court orders immediate transfer of custody as provided in subsection (a) of this section, if the facts alleged in the petition demonstrate to the court that there exists imminent danger to the child, the court may schedule a preliminary hearing giving the respondents at least five days' actual notice. . . ."

It is well established in West Virginia that statutes which are not inconsistent with one another, and which relate to the same subject matter, are In pari materia. Statutes In pari materia should be read and construed together, the primary purpose being to ascertain the intention of the Legislature. State ex rel. Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963); State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958); State v. Hoult, 113 W.Va. 587, 169 S.E. 241 (1933). Clearly W.Va. Code, 49-6-3, and the other sections of Article 6, Chapter 49 of the West Virginia Code are not inconsistent and relate to the same subject matter. They should, therefore, be read In pari materia.

I

It is clear that the right of a natural parent to raise his children is a fundamental right guaranteed by the due process clauses of the United States and West Virginia Constitutions. Due process prohibits a court or other arm of the State from terminating the parental rights of a natural parent having legal custody of his child without notice and the opportunity to be heard. See, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Willis, W.Va., 207 S.E.2d 129 (1974).

Coexistent with the right of a natural parent to due process in matters concerning the custody of his children is the inherent power of the State to intervene to protect the person and property of an infant. This power devolves upon the State under the doctrine of Parens patriae. See, State ex rel. Slatton v. Boles, supra.

In reconciling the right of the parent to custody of his child with the power of the State to intervene to protect the child, we have noted that emergency situations can arise which demand that the State, as Parens patriae, move immediately without regard to the rights and sensibilities of the parents in order to protect the health, welfare or life of the child. However, we have held that any taking and holding of a child from the custody of his natural parents by the State is an unwarranted and unjustified intrusion into the family relationship if it continues beyond any period necessary to serve the legitimate interests of the State. The unreasonable holding of the child away from his family and in disregard of their rights, without adjudication of those rights, offends due process. In re Willis, supra.

In Willis we established the parameters of reasonableness within which an emergency-taking statute must fall in order to satisfy due process requirements. Those parameters are:

1. The statute providing for emergency-taking must allow such taking only in an emergency situation in which the welfare or the life of the child is endangered; and

2. The statute must provide that there be an adjudication of the issues involved as soon as is reasonably possible after the taking. Such adjudication necessarily entails giving notice to the parents and offering them a meaningful opportunity to be heard.

W.Va. Code, 49-6-3(a) empowers a circuit court to order emergency-taking only after the court has found (1) that there exists an imminent danger to the physical well-being of the child; and (2) that there are...

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