No. 29288 - State of West Virginia ex rel. Brandon
L. and Carol Jo L. v. Honorable Alan D. Moats, Judge of the Circuit Court of
Barbour County, and Linda K. S. and Richard S.
Davis, J., dissenting:
Before the deliverance of the majority's decision herein, an order of adoption was considered to be a complete divestiture of an adoptee's former familial and legal ties and the creation of a unique adoptive family unit with correspondingly new legal relationships among those family members. The Opinion in the case sub judice, though, not only unsettles the once certain world of adoption, causing adoptees and adopters alike to constantly question the security of their court-established rights, it also contravenes the preeminent law of this State which dictates the applicability of new pronouncements of law. For these reasons, I respectfully dissent.
[t]he most drastic and far-reaching
action that can be taken by a court of equity is to enter a final order of adoption.
Such an order severing the ties between a parent and a child is as final, and
often as devastating, as though the child had been delivered at birth to a stranger
instead of into the arms of his natural mother or father. Custody of children
and child support are matters that remain within the breast of the court and are
subject to change and modification so long as a child is a minor. This is not
true of adoptions. Once an order of adoption becomes final, the natural parent
is divested of all legal rights and obligations with respect to the child, and
the child is free from all legal obligations of obedience and maintenance in respect
to them. The child, to all intents and purposes, becomes the child of the person
adopting him or her to the same extent as if the child had been born to the adopting
parent in lawful wedlock.
14A Michie's Jurisprudence Parent and Child § 27, at 285 (2001) (emphasis added) (footnote omitted). These sentiments are echoed by the adoption law of this State which proclaims that
[u]pon the entry of [an] 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 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 § 48-4-11(a) (1984) (Repl. Vol. 1999). Accord W. Va. Code § 48-4-9(d) (1997) (Repl. Vol. 1999). Likewise, the culmination of an adoption proceeding, which is evidenced by the order of adoption, is held to be inviolate, except in certain enumerated, and quite limited, circumstances:
(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.
(b) An order or decree of adoption may not be vacated, on any ground, if a petition to vacate the judgment is filed more than six months after the date the order is final.
(c) If a challenge is brought within the six-month period by an individual who did not receive proper notice of the proceedings pursuant to the provisions of this chapter, the court shall deny the challenge, unless the individual proves by clear and convincing evidence that the decree or order is not in the best interest of the child.
(d) A decree or order entered under this chapter may not be vacated or set aside upon application of a person who waived notice, or who was properly served with notice pursuant to this chapter and failed to respond or appear, file an answer or file a claim of paternity within the time allowed.
(e) A decree or order entered under this chapter may not be vacated or set aside upon application of a person alleging there is a failure to comply with an agreement for visitation or communication with the adopted child: Provided,
That the court may hear a petition to enforce the agreement, 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
(f) The supreme court of appeals shall consider and issue rulings on any petition for appeal from an order or decree of adoption and petitions for appeal from any other order entered pursuant to the provisions of this article as expeditiously as possible. The circuit court shall consider and issue rulings on any petition filed to vacate an order or decree of adoption and any other pleadings or petitions filed in connection with any adoption proceeding as expeditiously as possible.
(g) When any minor has been adopted, he or she may, within one year after becoming of age, sign, seal and acknowledge before proper authority, in the county in which the order of adoption was made, a dissent from such adoption, and file such instrument of dissent in the office of the clerk of the circuit court which granted said adoption. The clerk of the county commission of such county and the circuit clerk shall record and index the same. The adoption shall be vacated upon the filing of such instrument of dissent.
W. Va. Code § 48-4-12 (1997) (Repl. Vol. 1999).
As is evidenced by the above-quoted authorities, 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. Despite this legislatively intended
result, however, the majority of this Court has, in just one Opinion, completely
obviated the security attending the conclusion of adoption proceedings by allowing
grandparents, who had no prior order of visitation,See
footnote 1 1 to petition the court for such an order at any
time, even after the entry of a final adoption order.
By reaching the decision announced herein, the majority
has permitted grandparents, in general, to petition courts for visitation with
their former grandchildren after their familial relationship has been terminated
as a result of the grandchild's adoption. See W. Va. Code § 48-4-11(a)
(explaining change in familial relationships upon entry of final adoption order).
As the adoption will have likewise divested these former grandparents of
their kinship with their former grandchild, however, they simply would
have no standing under the governing statutes to pursue such a claim---a simple
observation which the Court's Opinion deftly ignores. See id. See
also W. Va. Code § 48-2B-2(2) (1998) (Repl. Vol. 1999) (defining
[g]randparent as a biological grandparent, a person married
or previously married to a biological grandparent, or a person who has previously
been granted custody of the parent of a minor child with whom visitation is sought,
but omitting a former grandparent from such definition). I find this result
to be particularly absurd considering the majority's lengthy discussion of the
respondent grandparents' standing in the case sub judice, see supra
Section III.A, and their ultimate finding of such standing in spite of the respondents'
son's relinquishment of his parental rights and their grandchild's subsequent
Moreover, my colleagues suggest, at the end of Section
III.A of the majority Opinion, supra, that the Legislature could have
amended the adoption statutes to address the present scenario and that their
failure to do so necessitates reliance solely on the grandparent visitation statutes. See W. Va. Code § 48-2B-1
(1998) (Repl. Vol. 1999) (providing that [i]t is the express intent of
the Legislature that the provisions for grandparent visitation that are set
forth in this article are exclusive). Neither do I agree with this conclusion.
Rather, I am of the opinion that the long-standing rule of statutory construction
resolves this quandary: inclusio unius est exclusio alterius. This doctrine,
which means that 'one is the exclusion of the others[,] . . .
informs courts to exclude from operation those items not included in the list
of elements that are given effect expressly by statutory language.' Keatley
v. Mercer County Bd. of Educ., 200 W. Va. 487, 491 n.6, 490 S.E.2d
306, 310 n.6 (1997) (quoting State ex rel. Roy Allen S. v. Stone, 196
W. Va. 624, 630 n.11, 474 S.E.2d 554, 560 n.11 (1996)). Accord State
v. Lewis, 195 W. Va. 282, 288 n.12, 465 S.E.2d 384, 390 n.12 (1995).
Because the adoption statutes at issue herein do,
in fact, address the issue of grandparent visitation in adoption proceedings,See
footnote 2 2 it seems to me that the Legislature's refusal to
speak further on this topic indicates its decision to foreclose any further
intervention in adoption proceedings by grandparents or other individuals who
seek to assert a purported right to visitation with the adoptee. Given that
the respondents' claim does not come within the rubric of intervenors contemplated
by the adoption statutes, I would submit that they lack standing to pursue visitation with Alexander David
and that the final order of adoption should be allowed to remain undisturbed
by further proceedings that are not sanctioned by the governing statutory law.
In the proceedings underlying the instant appeal,
it appears that Alexander David's biological parents, Carol Jo L. and David
Allen C., complied with the statutory requirements for obtaining consent to
and giving notice of Brandon L.'s prospective adoption of his stepson. See
W. Va. Code § 48-4-3 (1997) (Repl. Vol. 1999) (delineating persons
from whom consent to adopt is required); W. Va. Code § 48-4-8
(1997) (Repl. Vol. 1999) (listing individuals entitled to notice of adoption
proceedings). Nowhere in these statutes, however, is there a requirement that
persons in the position of the respondent grandparents, who did not have any
court-established rights to visitation with their grandson, must give their
consent to such an adoption or be notified of the proceedings therein. Thus,
it appears that the parties to Alexander David's adoption proceedings complied
with the law then in existence and, as a result thereof, should have been able
to enjoy the protections provided thereby upon their conclusion. See, e.g., W. Va. Code § 48-4-11(a) (describing finality of adoption proceedings).
The majority's decision in the case sub judice, though, usurps any reliance
Carol Jo L., David Allen C., or Brandon L., not to mention Alexander David,
could reasonably have placed upon the final resolution of Alexander David's
adoption by creating, in the child's grandparents, rights not heretofore contained
in the applicable statutory law.
By allowing retroactive application of the instant
decision, the majority has effectively amended the statutory law governing both
adoption and grandparents' visitation rights to include a class of grandparents
never contemplated by either of these promulgations. Primarily, the consent
and notice provisions of the adoption laws of this State are designed to shield
parents and children alike from difficulties that may arise when persons who
have protected interests have not been made parties to such proceedings. Perhaps
no case in this Court's recent history illustrates this point more poignantly
than Kessel v. Leavitt, 204 W. Va. 95, 511 S.E.2d 720 (1998), cert.
denied, 525 U.S. 1142, 119 S. Ct. 1035, 143 L. Ed. 2d 43
(1999), wherein a biological mother's failure to notify her child's biological
father of their son's adoption resulted in protracted litigation in this Court
on claims of tortious interference and fraud nearly seven years after the child's
birth and when the child's adoptive fate had long been sealed. As further insurance
against late- asserted claims, the Legislature has additionally included within
the list of those persons entitled to notice of adoption proceedings [a]ny
person . . . who has visitation rights with the child under an existing court order issued by a court in this or another
state. W. Va. Code § 48-4-8(a)(3). Similarly, in the off
chance that such persons either have not been properly notified or that the
visitation order has not been effective in securing visitation with the adoptee
post-adoption, these individuals are allowed a rare opportunity to seek relief
from the court in an otherwise finalized matter. See W. Va. Code
§ 48-4-12(e). When, however, the virtual floodgates are opened to
allow grandparents, such as the respondents herein, to request visitation rights
following the conclusion of adoption proceedings where they had no pre-existing
right thereto, the scope of persons with protected interests contemplated by
this State's adoption laws has been compromised and a novel application of the
law has been created. Both of these results dictate giving the majority's Opinion
Moreover, the Court's decision herein drastically
changes the scope of persons entitled to pursue visitation in accordance with
the grandparents' visitation statutes. As I discussed in Section A., supra,
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. Among the divestitures that take place in the course of an
adoption are those of the lineal or collateral kindred of any person
who was previously entitled to parental rights. W. Va. Code § 48-4-11(a).
Thus, as a result of Brandon L.'s adoption of Alexander David, David Allen C.'s parental rights to his son were
relinquished and those rights of his parents, the respondent grandparents, if
any such rights existed, were likewise extinguished. The effect of the majority's
holding, however, has been to miraculously restore the respondents's former
kinship status as the child's grandparents upon the Court's decision to grant
them standing to pursue their claims for visitation with their former
grandson. Accordingly, then, the majority's Opinion will have the effect of
expanding the Legislature's definition of a grandparent to include
those persons who formerly enjoyed that status despite the subsequent adoption
of their grandchild and their divestiture of such familial status by the statutes
governing that adoption. Cf. W. Va. Code § 48-2B-2(2).
Since this alteration in the grandparent visitation statutes also represents
a dramatic departure from the previously established law in this field, the
majority's pronouncement thereof should be applied prospectively only.
Accordingly, for the foregoing reasons, I respectfully
dissent. I am authorized to state that Justice Maynard joins me in this dissenting