No. 33317 _ In re: Cesar L.
Albright, Justice, concurring in part, dissenting in part:
I concur with the majority opinion on the very limited basis that it reaches the
proper legal result for the facts of the underlying case. I write separately to register my firm
dissent to the manner in which the majority has seen fit to unreasonably extend its decision
to facts not before the Court. I fear that the majority's zeal to eliminate entirely the
possibility that biological parents might seek modification of court decisions involuntarily
terminating parental rights in an abuse and neglect case wrongly establishes a new point of
law. That new point of law overlooks the constitutional limitations of this Court, ignores
legislative intent and disregards prior post-termination visitation rulings of this Court. The
specific language of the majority opinion to which I refer appears in syllabus point four of
the majority opinion and reads, in pertinent part: A final order terminating a person's
parental rights, as the result of either an involuntary termination
or a voluntary
relinquishment of parental rights, completely severs the parent-child relationship, thus
denying such parents standing to seek modifications.
The underlying action involved a mother who voluntarily
parental rights. She subsequently sought to revoke her relinquishment and petitioned for
modification of the abuse and neglect dispositional order pursuant to the provisions of West
Virginia Code § 49-6-6 (1977) (Repl. Vol. 2004). Section 4, article VIII of the West
Virginia Constitution provides in relevant part that [w]hen a judgment or order of another
court is reversed, modified or affirmed by the [supreme] court, every point fairly arising
upon the record shall be considered and decided. This Court has taken the enforcement of
this provision seriously by entertaining and deciding only those matters fairly arising from
the record. Syl. Pt. 9, State v. Comstock
, 137 W.Va. 152, 70 S.E.2d 648 ( 1952) (Under the
West Virginia Constitution, . . .when a judgment or decree is reversed or affirmed by this
Court, the Court will not consider and decide a point which does not fairly arise upon the
record of the case.); Thornton v. CAMC
, 172 W.Va. 360, 364, 305 S.E.2d 316, 320-21
(1983) (appellate review must be limited to those issues which appear in the record). The
majority improvidently declined to adhere to this long-recognized, self-imposed restriction.
Instead, the majority extends its holding to include cases involving involuntary termination
of parental rights, a circumstance not present in this case. The issue was not raised in the
facts and the issue was not properly developed before this Court through brief and argument.
As a result the majority's decision is ill-considered and fatally flawed.
It is equally disconcerting that the conclusion reached in the majority opinion
clearly ignores legislative intent. Proper reading of the statutory provision regarding
modification necessarily results in the conclusion that a biological parent is permitted to seek
modification of a dispositional order in an abuse or neglect case. The statute expressly
provides that a motion to modify a dispositional order may be made by a child, a child's
parent or custodian or the state department and [t]hat a dispositional order pursuant to
subdivision (6), subsection (a) of section five [§ 49-6-5 (a)(6)] shall not be modified after
the child has been adopted. W.Va. Code § 49-6-6. West Virginia Code § 49-6-5 (a)(6)
(2002) (Repl. Vol. 2004) includes the circumstances under which a court may proceed to
involuntarily terminate parental rights. By using a direct internal cross-reference to the
termination of parental rights provision, the Legislature has expressed the intent that
biological parents whose rights have been judicially terminated have a narrow window of
opportunity to seek modification of dispositional orders. The majority wrongly rebuffs that
clear legislative intent in order to announce a judicially created social policy that closes the
door in child abuse and neglect cases to modification by any natural parent, including those
whose parental rights are involuntarily terminated by judicial decree.
Furthermore, by its holding the majority has created a conflict with established
case law allowing post-termination visitation. No mention is even made in the majority
opinion of the decision authored by Justice Cleckley in 1995 in the case of In re Christina
, 194 W.Va. 446, 460 S.E.2d 692 (1995). The relevant and significant holding in
involved the recognition that a close emotional bond between a parent and child
may exist even when parental rights are terminated in abuse and neglect cases and that
continued visitation or other contact may be in the best interests of the child. Id.
at Syl. Pt.
5. It is not surprising that the majority ignores Christina L
. because any effort to distinguish
that case would be at best disingenuous since visitation under Christina L
. is conditioned
upon the existence of a close emotional bond between
the parent and child. Without
addressing Christina L.
, the majority has inappropriately created conflict in this very difficult
and particularly sensitive area of the law.
At first blush, the approach taken in the majority opinion seemingly
streamlines the adoption process by reducing potential impediments for placement of
children who have been victims of abuse and neglect. However, it also turns a blind eye to
what the future actually holds for too many of these children. Adoption often is not a viable
possibility for special needs children. Like it or not, the reality is that some children will
never be candidates for adoption because of their age, mental or physical disability, race or
other factor, and they will simply languish in foster care for any number of years. It is
possible that a parent whose rights have been involuntarily terminated could, over time,
effect a change in circumstances which would support countermanding the termination
decision. It may very well be that it is these children the Legislature contemplated would
be protected and served by the policy it adopted by enacting the modification statute and
providing that narrow window of opportunity.
I do not understand the majority's desire to so drastically restrict the standing
of parents whose rights have been judicially terminated to seek modification. Having
standing to apply for modification and attaining modification are far from synonymous. A
natural parent seeking to overturn a termination decision has an exceptionally heavy burden
to overcome in proving timeliness of the motion, fitness to be a parent, the validity of the
claimed change in the parent's errant ways and finally, the lodestar _ that the change would
be in the best interests of the child. It is the quantum of proof and not the elimination of the
opportunity that has governed and should govern the rare modification of termination orders
in abuse and neglect cases. See Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996)
(setting forth burdens and quantum of proof in proceeding by natural parent to regain
custody of child either permanently or temporarily transferred to third party).
In sum, I concur with the majority's affirmance of the rulings of the court
below in the instant case because no clear error was proven as to application by the lower
court of the facts to the law with regard to voluntary relinquishment of parental rights.
(See footnote 1)
However, I adamantly dissent from the majority's reaching beyond the matters fairly arising
upon the record in order to foreclose the opportunity of natural parents whose rights have
been involuntary terminated to seek modification of dispositional orders in abuse and
neglect case. The majority's policy statement is contrary to the expressed intention of the
Legislature, is at odds with prior case law regarding post-termination visitation, and
engineers a poor social policy by judicial fiat. As a result, I concur, in part, and dissent, in
I am authorized to state that Justice Starcher joins in this separate opinion.
Of course, a person retains standing to challenge the existence of a valid
voluntary relinquishment. Although Appellant's contest of the validity of the relinquishment
was unsuccessful in this case, that challenge was rejected on the merits by both this Court
and the lower court, not on the basis of a lack of standing.