IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term _______________ FILED November 18, 2019 No. 18-0167 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK _______________ SUPREME COURT OF APPEALS OF WEST VIRGINIA
MURRELL B. AND LINDA B., Petitioners
v.
CLARENCE R. AND NANCY R., Respondents ____________________________________________________________
Appeal from the Circuit Court of Boone County The Honorable William S. Thompson, Judge No. 14-A-04
REVERSED ____________________________________________________________
Submitted: September 4, 2019 Filed: November 18, 2019
Ancil G. Ramey, Esq. Lora Keyser Fugate, Esq. Hannah C. Ramey, Esq. Harts, West Virginia Steptoe & Johnson PLLC Counsel for Respondents Huntington, West Virginia Counsel for Petitioners
Matthew M. Hatfield, Esq. L. Scott Briscoe, Esq. Hatfield & Hatfield, PLLC Danville, West Virginia Madison, West Virginia Guardian ad litem Counsel for Petitioners
CHIEF JUSTICE WALKER delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “‘This Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).” Syllabus Point 1,
Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
2. “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.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
3. “The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp.
Com’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
4. “Where the language of a statute is clear and without ambiguity the
plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus
Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
3. “Statutes in pari materia must be construed together and the legislative
intention, as gathered from the whole of the enactments, must be given effect.” Syllabus
Point 3, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958).
i 4. “‘The Legislature, when it enacts legislation, is presumed to know its prior
enactments.’ Syllabus Point 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953).”
Syllabus Point 5, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986).
5. An “agreement” for purposes of West Virginia Code § 48-22-704(e)
(2015) is a mutual manifestation of assent by the adoptive parent(s) and a third party as to
visitation or communication with the adopted child that is either stated in full in the final
adoption order or explicitly referenced in that order and made an exhibit to it. All parties
to the agreement must endorse the final adoption order and any agreement incorporated by
reference.
ii WALKER, Chief Justice:
Petitioners Murrell and Linda B. adopted C.B. in 2014 when he was five
years old.1 In 2012, Linda had been named C.B.’s guardian. Prior to that, C.B. lived with
Respondents Clarence and Nancy R., although they were not related to C.B. and they were
not his legal guardians. When Linda became C.B.’s guardian in 2012, the family court
granted Clarence and Nancy visitation with C.B. Murrell and Linda allowed that visitation
to continue following the 2014 adoption until, in 2016, the parties quarreled, and Murrell
and Linda drastically reduced the visitation. Clarence and Nancy petitioned for visitation
with C.B., which the circuit court granted, relying on Clarence and Nancy’s pre-adoption
relationship with C.B. and the child’s best interests.
On appeal, we uphold Murrell and Linda’s challenge to the circuit court’s
order granting visitation. First, Clarence and Nancy did not have standing to petition the
circuit court to modify their alleged post-adoption visitation agreement under West
Virginia Code § 48-9-103 (2015). And, applying the plain language of West Virginia Code
§ 48-22-703(a) (2015), we find that Murrell and Linda’s adoption of C.B. in 2014 severed
Clarence and Nancy’s visitation with the child. Further, because the 2014 Adoption Order
does not provide for visitation between Clarence, Nancy, and C.B., we conclude that an
agreement among the parties regarding post-adoption visitation does not exist in this case.
1 Because of the sensitive nature of the facts alleged in this case, we use the parties’ first names and initials and identify the child by his initials, only. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
1 For these reasons, we reverse the circuit court’s final order granting scheduled visitation
with C.B. to Clarence and Nancy.
I. FACTS AND PROCEDURAL HISTORY
C.B. was born in August 2008 to S.A.-1. Shortly after C.B.’s birth, the West
Virginia Department of Health and Human Resources filed an abuse and neglect petition
against S.A.-1, removed C.B. from S.A.-1’s custody, and placed him with her sister, S.A.-
2. At the time, S.A.-2 lived with Clarence and Nancy, the parents of her then-husband.
From the fall of 2008 until September 2012, C.B. lived with Clarence and Nancy. They
provided C.B. with economic and emotional support although they were not his blood
relatives and never established a legal relationship to him.
In April 2009, the Circuit Court of Boone County (No. 08-JA-44) granted
temporary guardianship of C.B. to S.A.-2. It then dismissed the abuse and neglect petition
pending against S.A.-1. Later, in 2010, the Family Court of Logan County (No. 2009-FIG-
11) appointed S.A.-2 as C.B.’s permanent guardian under Chapter 48 (formerly Chapter
44) of the West Virginia Code.
As the Boone County abuse and neglect case wound down, a March 2009
paternity test showed that S.B., Murrell and Linda’s son, was C.B.’s biological father. S.B.
immediately petitioned the Circuit Court of Boone County (No. 09-D-145) to establish
paternity of C.B. and to obtain custody and a parenting plan. In September 2009, S.B.
voluntarily dismissed that petition in favor of parallel proceedings in Logan County
2 (No. 2009-FIG-11; No. 2009-D-323). Through those proceedings, S.B. received parenting
time with C.B., to be supervised by Murrell and Linda.2 In the course of the ensuing visits,
Murrell and Linda formed a relationship with C.B. They also formed a relationship with
Clarence and Nancy, with whom C.B. continued to reside.
In April 2012, Linda petitioned the Family Court of Logan County
(No. 09-FIG-11) to become C.B.’s permanent, legal guardian. Linda alleged that S.A.-2
had delegated her guardianship responsibilities to Clarence and Nancy, and that C.B.’s best
interests required termination of S.A.-2’s guardianship. Linda also acknowledged that C.B.
had been in Clarence and Nancy’s care since at least 2010 and that a “defacto [sic]
parenting plan/guardian arrangement” existed between the couples. Linda’s petition
concluded,
WHEREFORE, [Murrell and Linda] maintain that the best interest of the child is placing them as legal guardians over the person and estate of [C.B.], alternatively allowing [Clarence and Nancy] provide [sic] the responsibilities as guardians for said child, and for such other and further relief as the Court is duty bound to so grant and they shall forever pray.
Clarence and Nancy did not intervene in or otherwise object to Linda’s petition for
guardianship.
2 According to a petition for modification of the visitation order filed by S.A.-2, the Family Court of Logan County ordered supervised visitation because it found that S.B.’s prior drug abuse, felony criminal convictions, probation violations, and disinterest in drug abuse treatment rendered him unfit to provide custodial care to C.B.
3 The family court granted Linda’s petition on September 6, 2012
(2012 Guardianship Order). The 2012 Guardianship Order provided that “visitation
between [Clarence and Nancy], continue to be exercised as the parties address and resolve
as represented in open Court.” The appendix record does not contain a transcript of the
hearing on Linda’s guardianship petition.
On April 1, 2014, Murrell and Linda filed a petition to adopt C.B. in the
Circuit Court of Boone County (No. 14-A-4). The court set a hearing on the petition for
the following June; appointed a guardian ad litem for S.B., who was then incarcerated; and
ordered the clerk to notify Clarence and Nancy of the adoption petition based upon their
visitation rights with C.B. under the 2012 Guardianship Order.3
The circuit court held a hearing on the adoption petition on June 2, 2014.
Clarence and Nancy attended the hearing, but they were not represented by counsel. The
circuit court asked them several times if they objected to the adoption, and each time they
indicated that they did not. As to visitation, the court questioned Nancy as follows:
Circuit court: And I’m assuming [Clarence and Nancy], you all are okay with the adoption going forward?
Nancy: Yes, we just want visitation –
Circuit court: Visitation to remain the same?
Nancy: Yes, Your Honor.
3 See W. Va. Code § 48-22-601(a)(3) (2015).
4 Circuit court: All right. [Murrell and Linda’s counsel], do you have me an order?
Murrell and Linda’s counsel: I do, Judge. . . .
On June 2, 2014, the circuit court entered the final order granting Murrell
and Linda’s petition to adopt C.B. (2014 Adoption Order).4 In that order, the circuit court
found: (1) Clarence and Nancy exercised visitation with C.B.; (2) they were provided
notice5 of the hearing; (3) that they did not object to the adoption, and, in fact advised the
court that adoption served C.B.’s best interests; and (4) the adoption was in C.B.’s best
4 In the 2014 Adoption Order, the circuit court also found that S.B. consented to the adoption, see West Virginia Code § 48-22-303, and that S.A.-1’s failure to communicate with C.B. or to provide him any type of support constituted abandonment under West Virginia Code § 48-22-306. 5 See West Virginia Code §§ 48-22-601 and 602 (2015). Section 48-22-602(b) specifies that this notice must
inform the person, in plain language, that his or her parental rights, if any, may be terminated in the proceeding and that such person may appear and defend any such rights within the required time after such service. The notice shall also provide that if the person upon whom notice is properly served fails to respond within the required time after its service, said person may not appear in or receive further notice of the adoption proceedings.
Clarence and Nancy appeared at the June 2014 hearing. They did not contest the final adoption on the grounds that they did not receive notice or that the notice was improper. See West Virginia Code § 48-22-704(c) (2015) (individual may challenge order of adoption if challenge is brought within six months after order becomes final, individual did not receive proper notice of the adoption proceedings, and individual proves by clear and convincing evidence that the order is not in the best interests of the child).
5 interests. The order of adoption did not specify that visitation between Clarence, Nancy,
and C.B. would continue, post-adoption. No one challenged the adoption order under West
Virginia Code § 48-22-704, and it became final in July 2014.6
After the adoption, Murrell and Linda permitted Clarence and Nancy to visit
with C.B. Clarence and Nancy assert that, at first, the frequency and duration of their time
with C.B. mirrored what Murrell and Linda had allowed under the 2012 Guardianship
Order, which was approximately two to three weekends per month. This pattern changed
in August 2016,7 when a dispute arose between the parties regarding a birthday gift from
Clarence and Nancy to C.B. According to Nancy, between August 2016 and April 2017,
Murrell and Linda permitted Clarence and Nancy to see C.B. approximately five times
under supervision.
In October 2016, Clarence and Nancy, now represented by counsel, filed a
“Petition for Modification of Visitation” in the closed Boone County adoption case asking
the circuit court to enter an order setting a visitation schedule (Petition for Modification).
Clarence and Nancy alleged that they consented to Linda’s guardianship of C.B. in 2012
6 Records of proceedings in adoption cases are not open for inspection, generally. They may be opened for inspection pursuant to a court order for good cause shown. See W. Va. Code § 48-22-702(a) (2015). Clarence and Nancy did not petition the circuit court to permit them to inspect the adoption order. 7 Nancy also testified that visits decreased once C.B.’s adoptive brother (and biological father), S.B., returned to his parents’ home following his release from incarceration.
6 “with the agreement that they would continue visiting with [C.B.] on a regular basis.” As
to the nature of that visitation, Clarence and Nancy alleged that the “Logan County Family
Court was in agreement with the modification [i.e., appointment of Linda as guardian to
C.B.] and was going to schedule visitation, but both parties agreed that they could work
together in the BEST INTEREST [sic] of [C.B.].” Clarence and Nancy alleged that “the
visitation was continuing regularly and uninterrupted until recently,” when Murrell and
Linda unilaterally ended visitation. Clarence and Nancy also alleged that they appeared at
the 2014 adoption hearing to protect their interest and
to make sure they were able to continue to see [C.B.] and [Murrell and Linda] stated that was correct, so [Clarence and Nancy] did not object to said adoption. Since said adoption, visitation has continued uninterrupted until approximately two months ago, as agreed upon; so, due to [Murrell and Linda] continuing to follow the visitation schedule [Clarence and Nancy] believe that this Court granted visitation at said adoption hearing.
In February 2017, the circuit court appointed a guardian ad litem for C.B.
The guardian was to interview C.B. and the parties, then make a recommendation to the
circuit court regarding Clarence and Nancy’s petition. After observing C.B. interacting
with Clarence and Nancy in a public park and a restaurant, the guardian reported to the
court that C.B. shared a bond with them. The guardian did not consult a psychologist
regarding the impact upon C.B. of discontinuing visitation with Clarence and Nancy, nor
did he ask the court to interview C.B., in camera, as to the child’s wishes or view of his
7 own best interests. The guardian did not interview Murrell and Linda regarding their
preference as to visitation between Clarence, Nancy, and C.B.
In response to the Petition for Modification, Murrell and Linda emphasized
that Clarence and Nancy were not C.B.’s grandparents. They also argued that the 2014
Adoption Order extinguished any visitation that Clarence and Nancy had with C.B. under
the 2012 Guardianship Order. Murrell and Linda further asserted that the 2014 Adoption
Order did not include post-adoption visitation for Clarence and Nancy, and that, regardless,
West Virginia Code § 48-22-802 (2015)8 precluded such an arrangement.
Later, the guardian moved the circuit court to declare that Clarence and
Nancy were the “psychological parents” of C.B., and to direct Murrell and Linda to
continue to include Clarence and Nancy in C.B.’s life. The same day, Clarence and Nancy
replied in support of the Petition for Modification, also moving for a declaration that they
8 Section 48-22-802 states,
Any contract, agreement or stipulation which endeavors to deny to any person or persons the right to petition for adoption of any person, or which endeavors to alter the time or manner of adoption as provided in this article, is contrary to the public policy of the state and such portion of any contract, agreement or stipulation is null and void and of no effect.
8 were C.B.’s psychological parents. Citing this Court’s decision in In re K.H.,9 Clarence
and Nancy reiterated their request for scheduled visitation.
The circuit court held two evidentiary hearings in April 2017 on the issue of
whether Clarence and Nancy were C.B.’s psychological parents. Clarence and Nancy
testified, and while Murrell and Linda’s attorney was permitted to cross-examine them, the
circuit court did not permit Murrell and Linda to testify or to present evidence before
directing the parties to submit proposed orders resolving Clarence and Nancy’s Petition for
Modification.
The parties submitted their proposed orders later in January 2018. Murrell
and Linda’s proposed order included lengthy findings of fact and conclusions of law, while
the proposals by the guardian and by Clarence and Nancy included detailed visitation
schedules. Following the guardian’s proposed order closely, the circuit court granted
Clarence and Nancy’s Petition for Modification and set a liberal visitation schedule
between them and C.B. (2018 Visitation Order). The court based the grant of visitation to
Clarence and Nancy on two findings: that Clarence and Nancy were C.B.’s psychological
parents and that scheduled visitation between Clarence, Nancy, and C.B. was in C.B.’s best
interests.
9 235 W. Va. at 266, 773 S.E.2d at 32 (affirming circuit court’s termination of biological grandmother’s guardianship of K.H. and also finding that K.H. was entitled to continued association with her grandmother and remanding for entry of order setting a visitation schedule).
9 In the 2018 Visitation Order, entered January 16, 2018, the court granted
Clarence and Nancy something they had not enjoyed before—a schedule of visitation with
C.B. Under that schedule, C.B. was to visit Clarence and Nancy one Monday evening and
one Friday evening per month during the school year, plus one overnight, weekend stay
each month. During the summer, C.B. was to spend one week in both June and July with
Clarence and Nancy. As for holidays, C.B. was to stay with Clarence and Nancy (1) from
the beginning of his school’s holiday break until 8:00 p.m. on Christmas Eve; (2) the entire
Martin Luther King, Jr. three-day holiday weekend; (3) one-half of the week of Easter
break; and (4) from the beginning of his school’s Thanksgiving break until 5:00 p.m. on
the Wednesday of the holiday week.10 Murrell and Linda now appeal the 2018 Visitation
Order.11
II. STANDARD OF REVIEW
“‘This Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4, Burgess
v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).”12 “Where the issue on an appeal
10 The visitation schedule also provided for telephone calls between C.B., Clarence, and Nancy on Tuesday and Sunday evenings. 11 On May 22, 2018, Murrell and Linda moved this Court to stay the 2018 Visitation Order pending this appeal. This Court granted that motion on June 5, 2018. 12 Syl. Pt. 1, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).
10 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.”13
III. THE PARTIES’ ARGUMENTS
Murrell and Linda raise four assignments of error. First, they contend that
Clarence and Nancy do not have standing under West Virginia Code § 48-9-103 (2015) to
intervene in the closed adoption case. Second, they assert that the 2018 Visitation Order
violates West Virginia Code § 48-22-703(a) (2015), which provides for the finality of
adoption orders.14 Third, they allege that the evidence before the circuit court did not
13 Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). 14 West Virginia Code § 48-22-703(a) (2015) states:
Upon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this state, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
11 support its finding that Clarence and Nancy were C.B.’s psychological parents under the
criteria announced by this Court in Syllabus Point 3 of In re Clifford K.15 Finally, Murrell
and Linda claim that the 2018 Visitation Order interferes with their constitutional right to
raise their adopted son, C.B., unfettered, in the absence of allegations that they are unfit.16
Murrell and Linda also challenge the circuit court’s failure to provide them an opportunity
to testify or present evidence before entering the 2018 Visitation Order, an omission that
they contend violated their right to procedural due process.
Clarence and Nancy respond that West Virginia Code § 48-9-103(a)(3)
(2015) enables persons “who were parties to a prior order establishing custody or
visitation” to participate in a custody action, a condition satisfied by the 2012 Guardianship
Order. Clarence and Nancy also argue that their testimony supports the court’s finding that
they were C.B.’s psychological parents. Relying on our decision in In re K.H.,17 they argue
that the circuit court correctly found that scheduled visitation serves C.B.’s best interests.
The guardian responds in support of the 2018 Visitation Order, arguing that
it serves C.B.’s best interests and his right to continued association. As to standing, the
guardian argues that Clarence and Nancy did not intervene in the Boone County adoption
action, but were parties to it by virtue of the notice afforded them under West Virginia
15 Syl. Pt. 3, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005). Syllabus Point 3 is quoted in full, below. 16 See Troxel v. Granville, 530 U.S. 57 (2000). 17 235 W. Va. at 254, 773 S.E.2d at 20.
12 Code § 48-22-601 and by the actions of Murrell and Linda and the circuit court during the
June 2014 adoption hearing. He also argues that Clarence and Nancy had standing to
pursue post-adoption visitation under § 48-9-103(b) because they are C.B.’s psychological
parents.18
IV. DISCUSSION
We begin by reviewing the procedural posture of this case. Clarence and
Nancy did not seek custody of Murrell and Linda’s child, C.B., in their Petition for
Modification. Instead, Clarence and Nancy asked the circuit court to enforce an agreement
they allegedly formed with Murrell and Linda to allow them to visit C.B. following the
2014 adoption. The parties, the guardian ad litem, and the circuit court considered this
dispute in the context of the psychological parent doctrine and West Virginia Code
§ 48-9-103. For the reasons discussed below, we view the particular facts and
circumstances of this appeal through the lens of West Virginia Code § 48-22-703(a) (2015),
providing for the finality of adoption orders, and West Virginia Code § 48-22-704(e)
(2015), permitting—in limited circumstances—a circuit court to hear a petition to enforce
an agreement to visit or communicate with an adopted child.
18 Neither Clarence and Nancy nor the guardian responded to Murrell and Linda’s argument that the circuit court’s order violates West Virginia Code § 48-22-703(a).
13 A. West Virginia Code § 48-9-103 Does Not Apply to Clarence and Nancy’s Petition for Modification.
Before the circuit court and now on appeal, a large portion of the parties’
arguments focus on the question of whether Clarence and Nancy are “entitled to an
adjudication of the particular claims asserted.”19 That is, whether they had standing to
seek a court ruling on their Petition for Modification.
The parties try to answer this question with the psychological parent doctrine
and § 48-9-103.20 We defined the psychological parent concept and specified the
19 Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 95, 576 S.E.2d 807, 22 (2002) (emphasis in original) (quoting Int’l Primate Protect. Lge. v. Admin. of Tulane Ed. Fund, 500 U.S. 72, 77 (1991)). 20 This statute states:
(a) Persons who have a right to be notified of and participate as a party in an action [regarding custody of a child] filed by another are:
(1) A legal parent of the child, as defined in [§ 48-1-232] of this chapter;
(2) An adult allocated custodial responsibility or decision-making responsibility under a parenting plan regarding the child that is then in effect; or
(3) Persons who were parties to a prior order establishing custody and visitation, or who, under a parenting plan, were allocated custodial responsibility or decision-making responsibility.
(b) In exceptional cases the court may, in its discretion, grant permission to intervene to other persons or public agencies whose participation in the 14 circumstances in which a psychological parent may intervene in a custody proceeding in
In re Clifford K.21 In that case, infant Z.B.S. became the subject of a custody dispute
following the death of his biological mother.22 Tina B., the partner of Z.B.S.’s biological
mother, sought to intervene in the custody dispute as Z.B.S.’s psychological parent.23 The
circuit court found that Tina B. did not satisfy the requirements of § 48-9-103 and so found
that she lacked standing to intervene in the ongoing custody dispute.24 We reversed the
circuit court and held that “[i]n 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.”25 We then found
proceedings under this article it determines is likely to serve the child’s best interests. The court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or public agencies do not have standing to initiate an action under this article.
21 217 W. Va. at 625, 619 S.E.2d at 138. 22 Id. at 631, 619 S.E.2d at 144. 23 Id. 24 Id. at 631–32, 619 S.E.2d at 144–45. 25 Syl. Pt. 4, id., 217 W. Va. at 625, 619 S.E.2d at 138.
15 that Tina B. and Z.B.S.’s case was exceptional and that Tina B. more than satisfied the
criteria we simultaneously announced to define the psychological parent relationship.26
Syllabus Point 3 of In re Clifford K. is quite clear: a putative 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.”27 That statute,
§ 48-9-103, specifies who may be a party to, and who may intervene in, a custody action
under West Virginia Code Chapter 48, Article 9, which “sets forth principles governing
the allocation of custodial and decision-making responsibility for a minor child when the
parents do not live together.”28
In this case, Clarence and Nancy filed their Petition for Modification in the
closed, Boone County adoption case, a proceeding subject to West Virginia Code Chapter
48, Article 22, Adoption. They did not allege in that petition that C.B.’s adoptive parents,
26 See Syl. Pt. 3, id. (“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.”). 27 Syl. Pt. 4, id. 28 W. Va. Code § 48-9-101(a) (2015).
16 Murrell and Linda, no longer live together, or that C.B. is otherwise the subject of a pending
custody action. They did not ask the court for custody of C.B. Instead, they alleged that
following the 2014 adoption, Murrell and Linda decreased their visitation with C.B. and
asked the circuit court to impose a schedule of visitation so that would not happen again.
These circumstances are quite different than those in In re Clifford K. and the cases in
which we have previously relied on the psychological parent doctrine to award visitation.29
So, given the relief sought by Clarence and Nancy, the absence of a pending custody action,
and Clarence and Nancy’s decision to file their Petition for Modification in the closed,
Boone County adoption case, the psychological parent doctrine and § 48-9-103 cannot
confer standing upon them to petition for visitation with C.B.
B. Post-Adoption Visitation under West Virginia Code §§ 48-22-703 and 48-22-704.
Clarence and Nancy’s Petition for Modification triggers other portions of
Chapter 48—sections 703(a) and 704(e) of Article 22, Adoption. The former statute
provides for the finality of adoptions. The latter enables a circuit court to hear a petition
to enforce an agreement for visitation or communication with an adopted child, and so
provides Clarence and Nancy the standing they lack under § 48-9-103. We apply our
29 See, e.g., In re K.H., 235 W. Va. at 266, 773 S.E.2d at 32 (granting custody of K.H. to her biological father but awarding visitation to grandmother based on finding that she was K.H.’s psychological parent); In re Visitation & Custody of Senturi N.S.V., 221 W. Va. 159, 167–68, 652 S.E.2d 490, 498–99 (2007) (finding that members of infant Senturi’s extended family were not his “psychological parents” in the context of a custody dispute between the child’s biological parents.).
17 principles of statutory construction to these provisions and then apply them to the facts and
circumstances of this case.
“The primary object in construing a statute is to ascertain and give effect to
the intent of the Legislature.”30 Ordinarily, the language of the statute reflects the intent of
the Legislature so the words of the statute are given their common usage.31 That is why
“[w]here the language of a statute is clear and without ambiguity the plain meaning is to
be accepted without resorting to the rules of interpretation.”32
“On the other hand, when the statutory language is not clear, it must be
construed” before it can be applied.33 Statutory language may be unclear because the
Legislature has not defined a statutory term; if that is the case, then the undefined terms
“will, in the interpretation of the act, be given their common, ordinary and accepted
meaning in the connection in which they are used.”34
30 Syl. Pt. 1, Smith v. State Workmen’s Comp. Com’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). 31 State ex rel. Frazier v. Meadows, 193 W. Va. 20, 23–24, 454 S.E.2d 65, 68–69 (1994) (collecting cases). 32 Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). 33 State ex rel. Morrisey v. W. Va. Off. of Disciplinary Counsel, 234 W. Va. 238, 248, 764 S.E.2d 769, 779 (2014). 34 In re Clifford K., 217 W. Va. at 633, 619 S.E.2d at 146 (quoting Syl. Pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee–Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982)).
18 Statutory language may also be unclear—and, therefore, open to
construction—because it is ambiguous, meaning that it is “susceptible of two or more
constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning.”35 In those circumstances, “‘a court often must
venture into extratextual territory in order to distill an appropriate construction. Absent
explicatory legislative history for an ambiguous statute . . . this Court is obligated to
consider the . . . overarching design of the statute.’”36 Consequently, “[s]tatutes in pari
materia must be construed together and the legislative intention, as gathered from the whole
of the enactments, must be given effect.”37 We now consider §§ 48-22-703(a) and
48-22-704(e) in view of these rules to determine whether Clarence, Nancy, Linda, and
Murrell formed an agreement as to post-adoption visitation with C.B., as that term is used
in § 48-22-704(e).
1. West Virginia Code § 48-22-703.
Section 48-22-703(a) states:
[u]pon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be 35 Crockett v. Andrews, 153 W. Va. 714, 718, 172 S.E.2d 384, 386 (1970). 36 State v. Fuller, 239 W. Va. 203, 208, 800 S.E.2d 241, 246 (2017) (quoting State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995)). 37 Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958).
19 divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this state, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
Under § 48-22-703(a), “any person previously entitled to parental rights . . .
shall be divested of all legal rights . . . and shall be divested of all obligations in respect to
the said adopted child” once the order of adoption becomes final.38 Likewise, the child is
also “free[d] from all legal obligations, including obedience and maintenance, in respect to
any such person, parent or parents.”39 The child becomes, for all intents and purposes, “the
38 “Except, of course, in the case of stepparent adoption wherein the spouse of the stepparent, who is also the child’s biological or adoptive parent, retains his/her relationship with the child as do the parents of that parent.” Visitation of Cathy L.(R.)M. v. Mark Brent R., 217 W. Va. 319, 328 n.1, 617 S.E.2d 866, 875 n.1 (2005) (Davis, J., concurring) (citing § 48-22-703(a) (stating that, “‘[u]pon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights . . .’ (emphasis added)”)). See also W. Va. Code § 48-10-902 (2015) (“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.”). 39 W. Va. Code § 48-22-703(a).
20 legitimate issue of the person or persons so adopting him” and is “entitled to all the rights
and privileges and subject to all the obligations of a natural child of such adopting parent
or parents.”40
The language of § 48-22-703(a) is clear and unambiguous. It demonstrates
the Legislature’s intent that
once the proceedings surrounding an adoption have been concluded, the ultimate import of the court’s final order of adoption is just that–––to serve as a final and complete resolution of the adoptee’s former and forthcoming familial and legal relationships, thereby providing him/her with the comfort and knowledge of future certainty.[41]
Because § 48-22-703(a) is clear and unambiguous, we apply it to the case
before us without construing it. The circuit court entered the 2014 Adoption Order on June
2, 2014, and it became final thirty days later on July 2, 2014. 42 As of that date, Clarence
40 Id. 41 State ex rel. Brandon L. v. Moats, 209 W. Va. 752, 767, 551 S.E.2d 674, 689 (2001) (Davis, J. dissenting). See also Visitation of Cathy L.(R.)M., 217 W. Va. at 328, 617 S.E.2d at 875 (“[T]he central aim of adoption is finality, finality in the severance of pre-existing relationships and finality in the creation of new adoptive relationships, which breeds certainty for adopted children and their adoptive parents, alike, in their new adoptive relationship.”) (Davis, J., concurring). 42 See W. Va. Code § 48-22-704(a) (“An order or decree of adoption is a final order for purposes of appeal to the Supreme Court of Appeals on the date when the order is entered. An order or decree of adoption for any other purpose is final upon the expiration of the time for filing an appeal when no appeal is filed or when an appeal is not timely filed, or upon the date of the denial or dismissal of any appeal which has been timely filed.”). The 2014 Adoption Order was not appealed, so it became final thirty days after 21 and Nancy were divested of any visitation with C.B. they may have had prior to the
adoption. Clarence and Nancy offer no reason why this is not so, and we do not see one.
The 2014 Adoption Order does not state that visitation between Clarence, Nancy, and C.B.
was to continue after the adoption. To the extent the 2012 Guardianship Order granted
Clarence and Nancy visitation with C.B., entry of the 2014 Adoption Order ended it. And,
while Clarence and Nancy may have formed a psychological parent relationship with C.B.
prior to 2014, they cannot rely on that pre-adoption relationship to establish visitation with
him post-adoption.43 Therefore, we find that, as a matter of law, the final 2014 Adoption
Order severed any visitation that Clarence and Nancy may have had with C.B. prior to his
adoption in 2014.
the order was entered. See W. Va. R. App. Pro. 5(b) (notice of appeal must be docketed within thirty days of entry of the judgment). 43 Clarence and Nancy argue that the circuit court’s oral statements about visitation during the 2014 adoption hearing support their argument that the pre-adoption visitation with C.B. survived entry of the 2014 Adoption Order. But, the order of adoption is prime, and the circuit court’s oral statements, uttered before entry of the 2014 Order of Adoption, cannot add to or subtract from the final effect of that order. Second, and more generally, a court speaks through its orders. See Harvey v. Harvey, 171 W. Va. 237, 241, 298 S.E.2d 467, 471 (1982) (“That a court of record speaks only through its records or orders has been generally affirmed by this Court in subsequent cases.”). If there is a conflict between the circuit court’s oral statements during the June 2014 hearing and the 2014 Adoption Order, the Adoption Order controls. See Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 383–84 n.5 (1995) (noting that “it is clear that where a circuit court’s written order conflicts with its oral statement, the written order controls.”).
22 2. West Virginia Code § 48-22-704(e).
Clarence and Nancy alleged in their Petition for Modification that after the
2014 adoption, “visitation [with C.B.] continued uninterrupted until approximately two
months ago, as agreed upon . . . .” That allegation—combined with Clarence and Nancy’s
testimony that Murrell and Linda promised to keep them in C.B.’s life—triggers West
Virginia Code § 48-22-704 (2015).
In § 48-22-704(a) to (d), the Legislature specified the limited circumstances
in which a final adoption order may be vacated or set aside. Similarly, in subsection (e),
the Legislature stated that an adoption order may not be vacated or set aside if a person
alleges that there is a failure to comply with an agreement for visitation or communication
with the adopted child. The Legislature did, however, include a proviso in subsection (e)
in which it granted limited authority to courts to
hear a petition to enforce the agreement [for visitation or communication with the adopted child], in which case the court shall determine whether enforcement of the agreement would serve the best interests of the child. The court may, in its sole discretion, consider the position of a child of the age and maturity to express such position to the court.[44]
Section 48-22-704(e) demonstrates the Legislature’s intent to enable a circuit
court to hear a petition to enforce an agreement for visitation or communication with an
adopted child—that much is plain. But, while the Legislature clearly enabled a circuit
44 W. Va. Code § 48-22-704(e).
23 court to hear a petition like Clarence and Nancy’s, it did not define the term “agreement”
or specify how one could be formed under § 48-22-704(e). To fill this gap, we look to the
term’s “common, ordinary and accepted meaning in the connection in which [it is] used.”45
Dictionaries define the term “agreement” as (1) “harmony of opinion, action,
or character[,]”46 (2) “harmony or accordance in opinion or feeling[,]”47 and (3) “[a] mutual
understanding between two or more persons about their relative rights and duties regarding
past or future performances; a manifestation of mutual assent by two or more persons.”48
As explained in a leading treatise:
An agreement, as the courts have said, “is nothing more than a manifestation of mutual assent” by two or more parties legally competent persons to one another. Agreement is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property.[49]
The term “agreement” appears in other articles of West Virginia Code,
Chapter 48. For example, a “separation agreement,” defined in West Virginia Code
45 In re Clifford K., 217 W. Va. at 633, 619 S.E.2d at 146 (quotation omitted). 46 Merriam-Webster’s Collegiate Dictionary 26 (11th ed. 2005). 47 New Oxford American Dictionary 32 (3d. ed. 2001). 48 AGREEMENT, Black’s Law Dictionary (10th ed. 2014). 49 Id. (quoting 1 Samuel Williston, A Treatise on the Law of Contracts § 2, at 6 (Walter H.E. Jaeger ed., 3d ed. 1957)). See also Bailey v. Sewell Coal Co., 190 W. Va. 138, 140, 437 S.E.2d 448, 450 (1993) (“‘It is elementary that mutuality of assent is an essential element of all contracts.’”) (quoting Wheeling Downs Racing Ass’n v. W. Va. Sportservice, Inc., 158 W.Va. 935, 216 S.E.2d 234 (1975)).
24 § 48-6-101(a) (2015), is a “written agreement between a husband and wife whereby they
agree to live separate and apart from each other.” West Virginia Code
§ 48-31-201 (2019 Supp.) specifies the form of an agreement addressing custodial
responsibility during a military deployment. Under that statute, parents may enter into a
temporary agreement granting custodial responsibility for a child during a military
deployment, but the agreement must be in writing and signed by both parents and any
nonparent to whom custodial responsibility is granted.50 And, in West Virginia Code
§ 48-9-201 (2015), the Legislature stated that if parents have agreed to one or more
provisions of a parenting plan, the court “shall so order,” unless it determines that the
parents’ agreement is not knowing or voluntary or their agreed plan would harm the child.
As of 2012, West Virginia, approximately twenty-five other states, and the
District of Columbia “had enacted laws providing for some form of enforceable agreement
between birth parents and adoptive parents.”51 While the laws of each state differ, one
academic has distilled from the various statutes two general “requirements that must be
met for a court to recognize a post adoption agreement. First, the agreement needs to be in
50 W. Va. Code § 48-31-201(a), (b) (2019 Supp.). 51 Carol Sanger, Bargaining for Motherhood: Postadoption Visitation Agreements, 41 Hofstra L. Rev. 309, 319 (2012). According to the Child Welfare Information Gateway, an initiative of the Children’s Bureau, U.S. Department of Health and Human Services, as of 2019, 29 states have statutes that allow written and enforceable agreements for contact after finalization of an adoption. See Child Welfare Info. Gateway, Postadoption contact agreements between birth and adoptive families 2 (2019), available at https://www.childwelfare.gov/pubpdfs/cooperative.pdf.
25 writing and signed by each party. Second, the court must approve the terms of the
agreement.”52 Additional secondary sources describe agreements in the context of post-
adoption visitation similarly.53
We discern the following commonalities among these sources. First, that an
agreement is the result of mutual assent. Second, that in the context of Chapter 48 of the
West Virginia Code, the agreements referenced above are written and may, in the case of
a parenting agreement, be made part of a court order. Third, in the particular context of
post-adoption visitation agreements, agreements are generally made in writing, signed by
each party, and approved by the court.
We consider an additional source to define an “agreement” for purposes of
§ 48-22-704(e). That is § 48-22-703(a), and the legislature’s clear instruction in that statute
that the final adoption order is the mechanism that both severs old family relationships and
52 Leigh Gaddie, Open Adoption, 22 J. Am. Acad. Matrim. Law. 499, 503 (2009) (notes omitted). 53 Sanger, 41 Hofstra L. Rev. at 319 (“While the statutes differ in interesting ways, each provides that postadoption visitation agreements are legal so long as the agreement is in writing and approved by the court, most often by being incorporated into the final order of adoption.”). See also Margaret C. Jasper, The Law of Adoption 51 (2011) (“A post- adoption contact agreement—also referred to as an ‘open adoption agreement’—is a court- approved contract that permits some degree of continuing contact or communication between the child’s adoptive family and the child’s birth family after the adoption is finalized.”).
26 creates new ones. Because both §§ 48-22-703 and 704 pertain to the finality of adoptions,
and the narrow statutory exceptions to that rule, we consider the statutes together.54
The earliest iteration of § 48-22-703(a) appeared in Chapter CXXII, § 4 of
the West Virginia Code of 1884.55 The statute was re-enacted in 192556 and has remained
largely unchanged, since.57 The Legislature added the language now found in
§ 48-22-704(e) to the Code in 1997—approximately seventy years after the last, major
substantive amendment to § 48-22-703(a).58
“‘The Legislature, when it enacts legislation, is presumed to know its prior
enactments.’”59 Therefore, we must assume that the Legislature was aware of the effect of
a final adoption order under § 48-22-703(a) when it enacted § 48-22-704(e). As was stated
in State ex rel. Brandon L. v. Moats with regard to § 48-22-703(a), “the ultimate import of
54 Syl. Pt. 3, State ex rel. Graney, 144 W. Va. at 72, 105 S.E.2d at 886 (“[s]tatutes in pari materia must be construed together and the legislative intention, as gathered from the whole of the enactments, must be given effect.”). 55 See 1882 W. Va. Acts Ch. 132. 56 See 1925 W. Va. Acts. Ch. 74. 57 The Legislature recodified Chapter 48 in 2001. 2001 W. Va. Acts Ch. 91. Prior to 2001, this statute was found at West Virginia Code § 48-4-11. 58 1997 W. Va. Acts Ch. 2. West Virginia Code § 48-4-12, the statute amended by the Legislature in 1997, was recodified as § 48-22-704(e) in 2001. 2001 W. Va. Acts Ch. 91. 59 Syl. Pt. 5, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986) (quoting Syl. Pt. 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953)).
27 the court’s final order of adoption is . . . to serve as a final and complete resolution of the
adoptee’s former and forthcoming familial and legal relationships, thereby providing
him/her with the comfort and knowledge of future certainty.”60 It is evident that an
agreement contemplated by § 48-22-704(e) affects an adoptee’s forthcoming familial and
legal relationships, so we conclude that the agreement must be made a part of a final order
of adoption.
Based on the foregoing analysis, we now hold that an “agreement” for
purposes of West Virginia Code § 48-22-704(e) (2015) is a manifestation of mutual assent
between an adoptive parent(s) and a third party as to visitation or communication with an
adopted child that is either stated in full in the final adoption order or explicitly referenced
in that order and made an exhibit to it. All parties to the agreement must endorse the final
adoption order and any agreement incorporated by reference. This holding comports with
the common usage of the term “agreement” as well as its usage in § 48-22-704(e). It also
safeguards the adoptive parent’s right to the custody and control of his adopted child—a
right that is equal to that of a biological parent and child.61
60 State ex rel. Brandon L., 209 W. Va. at 767, 551 S.E.2d at 689 (Davis, J., dissenting). See also Visitation of Cathy L.(R.)M., 217 W. Va. at 328, 617 S.E.2d at 875 (Davis, J., concurring) (“the central aim of adoption is finality, finality in the severance of pre-existing relationships and finality in the creation of new adoptive relationships, which breeds certainty for adopted children and their adoptive parents, alike, in their new adoptive relationship”). 61 Syl. Pt. 1, In Re: Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“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 28 Applying our holding to the facts and circumstances of this case, we find that
the circuit court’s 2018 Visitation Order is erroneous as a matter of law. As discussed
above, the 2014 Adoption Order severed any pre-adoption visitation with C.B. that
Clarence and Nancy may have had under either the psychological parent doctrine
(predicated on pre-adoption conduct) or the 2012 Guardianship Order. Following the 2014
adoption, Clarence and Nancy were left to pursue visitation with C.B. under
§ 48-22-704(e).
The 2014 Adoption Order does acknowledge that Clarence and Nancy
exercised visitation with C.B. during Linda’s guardianship, but it does not state that the
parties mutually agreed to continue visitation after the order of adoption became final.
There is no dispute that Clarence and Nancy were provided notice of the adoption hearing
and that they did not appeal the 2014 Adoption Order. Admittedly, they were not
represented by counsel at either the 2012 guardianship hearing or the 2014 adoption
hearing. Nevertheless, they were not prevented from obtaining counsel and that fact alone
does not permit us to overlook the absence of any language in the 2014 Adoption Order
person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.”).
For that same reason, we decline to address the guardian’s argument that C.B.’s best interests, alone, justify the circuit court’s 2018 Visitation Order. See Visitation of Cathy L.(R.)M., 217 W. Va. at 327–28, 617 S.E.2d at 874–75 (“a judicial determination regarding whether grandparent visitation rights are appropriate may not be premised solely on the best interests of the child analysis. It must also consider and give significant weight to the parents’ preference, thus precluding a court from intervening in a fit parent’s decision making on a best interests basis.”) (citing Troxel, 530 U.S. at 69).
29 reflecting a mutual understanding between Clarence, Nancy, Murrell, and Linda that
Clarence and Nancy’s visitation with C.B. would continue following the adoption.
V. CONCLUSION
For the reasons explained above, we reverse the Circuit Court of Boone
County’s January 16, 2018 Final Order Finding the Petitioners to be Psychological Parents
and Setting Visitation Schedule.
Reversed.