The appellants herein and petitioners below, Warren Lee A., (See footnote 1) stepfather of the minor child Jon L., and Melissa A. A., biological mother of Jon L., appeal from an order entered September 24, 2004, by the Circuit Court of Roane County. By the terms of that order, the circuit court granted the relief requested by the appellees herein, Robin L. and Janet L., paternal grandparents of Jon L., and prohibited Warren (See footnote 2) and Melissa from changing Jon L.'s surname in connection with his adoption by Warren. On appeal to this Court, Warren and Melissa argue that the circuit court erred by refusing their request to change Jon's surname commensurate with Warren's adoption of the child. Upon our review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we find that the circuit court erred by refusing to permit the requested name change. Accordingly, we reverse the circuit court's ruling and remand this case for further proceedings consistent with this opinion.
Included within the adoptive relief sought was also a request to change Jon's name (See footnote 5) from Jon C. L. to Jon C. A. so that his surname and that of his parents, his biological mother and his adoptive stepfather, would be the same. In connection with the filing of the adoption proceeding, the circuit court appointed a guardian ad litem to safeguard Jon's best interests. Also in conjunction with the filing of the adoption petition, notice of the pending adoption proceeding was provided to Robin L. and Janet L., who, as Jon's paternal grandparents, were entitled to such notice as a result of the death of their son and Jon's biological father, Jonathon. (See footnote 6)
The circuit court conducted a final adoption
hearing in this matter on August 2, 2004. At that hearing, the grandparents appeared
by counsel and orally objected both to the child's adoption by Warren and to
the proposed surname change. From the record, it is apparent that the relationship
between Melissa and Robin and Janet is acrimonious, but that the grandparents
have nevertheless been faithfully exercising their visitation with Jon in accordance
with the order awarding them grandparent visitation. Furthermore, as a result
of the unique nature of the adoption proceedings involving a stepparent in this
case, it is clear that the finalization of the adoption would not usurp their
right to grandparent visitation. See W. Va. Code § 48-10-902
(2001) (Repl. Vol. 2004) (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 . . . of the child.). See also Syl.
pt. 2, Petition of Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987)
(Upon the petition of a grandparent,
pursuant to W. Va. Code, 48-2B-1 , seeking visitation rights
with a grandchild or grandchildren, who is the child or are the children of
the grandparent's deceased child, a trial court may order that the grandparent
shall have reasonable and seasonable visitation rights with the grandchild
or grandchildren provided such visitation is in the best interest of the grandchild
or grandchildren involved, even though the grandchild or grandchildren has
or have been adopted by the spouse of the deceased child's former spouse.).
Nevertheless, the circuit court noted the grandparents' objections.
In response to the grandparents' opposition to changing Jon C. L.'s surname, Warren and Melissa offered to retain the child's former surname as his middle name, i.e., Jon L. A., or to hyphenate his last name to include both his former and proposed future surnames, i.e., Jon C. L.-A. During the course of the proceedings, Jon's guardian ad litem recommended that Warren be permitted to adopt Jon, but she did not specifically state whether Jon's surname should be changed.
Upon the evidence presented during the adoption hearing, the circuit court ultimately granted the petition for adoption but denied the request to change Jon's surname. As to these matters, the circuit court, by order entered September 24, 2004, ruled
it is ADJUDGED, DECLARED and ORDERED that said child is adopted by petitioner
WARREN L. A[.], and from this time forward, the rights, duties, privileges, and
relationships between said child and the
petitioner Warren L. A[.], shall be the same in all respects, including the
right of inheritance, as if the child had been born to him and petitioner,
Melissa A. A[.]
The Court then considered the motion of the petitioner to change the child's name to JON C[.] A[.], or alternatively, to JON L[.] A[.] Considering the objection of the paternal grandparents, the Court FINDS that the proposed change of the child's name would not significantly advance his interests, and if the child wishes to change his name, he can do so as an adult. Therefore, it is ADJUDGED, DECLARED and ORDERED that from this time forward said child's name shall remain be [sic] JON C[.] A[.], to which ruling the petitioners did OBJECT.
From this ruling, Warren and Melissa now appeal to this Court.
reviewing challenges to the findings and conclusions of the circuit court, we
apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.Syl. pt. 2, Walker
v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997). Accord Syl.
pt. 1, State ex rel. Hechler v. Christian Action Network, 201 W. Va.
71, 491 S.E.2d 618 (1997).
Moreover, where, 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). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.).
Mindful of these standards, we proceed to consider the parties' arguments.
. . . [t]he name . . . of the child, and the name
by which the child shall be known. See also W. Va. Code § 48-22-902(a)(2-3)
(2003) (Repl. Vol. 2004) (directing that, in the case of the adoption of a
child who has immigrated to the United States, [t]he verified
petition shall set forth the following: . . . . [t]he name of
the child adopted in a foreign country [and] . . . [t]he name by
which the child shall be known henceforth). Therefore, when a prospective
adoptive parent initially makes his/her application to adopt a child, the adoptive
specify what the child's new name will be after the adoption.
Thereafter, W. Va. Code § 48-22-701 (2001) (Repl. Vol. 2004), which governs the adoption proceedings, themselves, references the change of a child's name during the course of his/her adoption. Specifically, W. Va. Code § 48-22-701(d) explains the procedure to be followed by a court conducting a final adoption hearing, and, upon a finding by the court that the adoption should be permitted, the court shall make an order reciting the facts proved and the name by which the child shall thereafter be known, as well as the new relationships resulting from the adoption, itself. See also W. Va. Code § 48-22-903 (2003) (Repl. Vol. 2004) (mandating that, in proceedings recognizing a foreign adoption decree and upon the requisite findings, the court shall enter an order of adoption, and [t]he order shall . . . set forth the name by which the child shall be known henceforth). Thus, as part of the final order of adoption, the Legislature has recognized a change in the child's name resulting from the adoption proceedings.
Finally, upon the conclusion of the adoption proceedings, documents reflecting the child's new adoptive name are required to be filed with the state registrar of vital statistics.
upon the entry of such order of adoption, the court shall direct the clerk thereof
forthwith to make and deliver to the state registrar of vital statistics a certificate
under the seal of said court, showing:
. . . .
. . . The name by which said child has previously been known; [and]
. . . .
. . . The name by which the child is to be thereafter known[.]
W. Va. Code § 48-22-702(d)(3,5) (2001) (Repl. Vol. 2004). Following this recording, a new birth certificate is required to be issued for the child.
Upon receipt of the certificate, the registrar of vital statistics shall forthwith issue and deliver by mail to the adopting parents at their last-known address and to the clerk of the county commission of the county wherein such order of adoption was entered a birth certificate in the form prescribed by law, except that the name of the child shown in said certificate shall be the name given him or her by the order of adoption.
W. Va. Code § 48-22-702(e) (emphasis added). Hence, it is evident
that the change of a child's name incident to his/her adoption is not only
permitted by the Legislature but is anticipated thereby as the child's new
adoptive name is the name required to be listed on the child's birth certificate
that is issued upon the finalization of the adoption.
With each of these referenced statutes, it is important to note that no discretion is afforded to the circuit court to either accept or reject the requested name change; (See footnote 10) rather, the statutes treat the change of name of an adopted child as a matter of course incident to the adoption proceeding, itself. Neither are those persons entitled to notice, such as the grandparents herein, entitled to object to a proposed change of name during an adoption proceeding. (See footnote 11)
Despite this absence of discretion or ability
to formally object to a child's name change during an adoption proceeding, we
do not think such ability to change a child's name is necessarily absolute. Rather,
under the unique circumstances of the case sub judice, because a stepparent
adoption was involved, the child's parent had to assent to the child's adoption
by her spouse. See W. Va. Code § 48-22-301(b)(3). Likewise,
given the priority given to a fit parent vis-a-vis the care, control, and custody
of his/her child, we find it necessary for a parent, whose spouse seeks to adopt
the parent's child, to assent to the proposed name change. See 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 person; it is a fundamental personal liberty
protected and guaranteed by the Due Process Clauses of the West Virginia and
United States Constitutions.). Any other result would elevate the rights
and interests of a potential adoptive parent above those of the child's actual,
and in this case biological, parent, which is clearly contraindicated by the
law of this State.
Moreover, the statutes according permission to an adoptive parent to change a child's name in connection with his/her adoption of the child is consistent with the longstanding law of this State recognizing the ultimate effect of an adoption proceeding: a termination of previous familial relationships and the creation of new familial relationships, protected by the umbrella of finality. In this regard, the Legislature has specifically stated 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, 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.
W. Va. Code § 48-22-703(a) (2001) (Repl. Vol. 2004). This provision
has been construed as signifying that the entry of a final order of adoption
effectively changes the legal and familial relationships of the parties thereto
by divesting the pre-adoption lineages and obligations and replacing them with
ties indicative of the post-adoption state of affairs. State ex rel.
Brandon L. v. Moats, 209 W. Va. 752, 770, 551 S.E.2d 674, 692 (2001)
(Davis, J., dissenting). Additionally, 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. In
re Grandparent Visitation of Cathy L. (R.) M. v.
Mark Brent R., 217 W. Va. 319, ___, 617 S.E.2d 866, 875 (2005) (per
curiam) (Davis, J., concurring) (citation omitted). See also State
ex rel. Smith v. Abbot, 187 W. Va. 261, 266, 418 S.E.2d 575, 580 (1992)
(Finality is of the utmost importance in an adoption.).
Accordingly, we hold that an adoptive parent may, incident to an adoption proceeding, change his/her adopted child's name to reflect the new adoptive relationship. (See footnote 12) However, in the case of a stepparent adoption where the adoptive parent is married to the child's parent, the child's parent must assent to the proposed name change. In this case, not only did Warren seek to change Jon's name in his adoption petition to reflect the parties' new adoptive relationship, but Melissa assented to, and vigorously supported, such a name change. Thus, to the extent that the circuit court denied the change of Jon's surname as requested by Warren and Melissa in Warren's petition to adopt Jon, we find the circuit court erred and reverse that ruling. We further remand this case to the Circuit Court of Roane County for further proceedings consistent with this opinion, including entry of an order changing Jon's surname as requested by Warren and Melissa incident to Warren's adoption of the child.