No. 32520 - In re: Alyssa W. and Sierra H.
Albright, Chief Justice, concurring in part and dissenting in part:
I concur with the majority's conclusion that
the trial court abused its discretion by placing the burden upon Mildred H. to
demonstrate why visitation should not be resumed between the Robert H. and Sierra
H. There is no basis upon which the trial court may impose such a burden. It
I dissent, however, to the extent that this
Court has substituted its own judgment for that of the trial court on the issue
of the best interests of the child. The trial court engaged in substantial investigation
of the best interests of Sierra regarding potential supervised
with her father. The trial court sought to assure that the safety of the child
would be protected by ordering that the visitation be supervised. (See
This Court has consistently cautioned that substantial
discretion must be vested in trial courts and that this Court should not merely
substitute its own judgment for that of the trial court in such discretionary
matters. That is the essence of the abuse of discretion standard, a model given
lip service by the majority but then hastily cast aside when the majority chose
conclusion. Whether in the context of this case or the myriad of others confronted
by this Court, this Court's variable application of the abuse of discretion
standard is paralyzing that standard's effectiveness. As Justice Cleckley once
observed, the abuse of discretion standard has many faces and, in our
application of the standard, it can range anywhere from careful scrutiny to
almost no scrutiny. State v. Head
, 198 W.Va. 298, 305, 480 S.E.2d
507, 514 (1996) (Cleckley, J., concurring).
The question is not what this Court would
have done if sitting on the trial court bench. The question is whether the trial
court abused its discretion in the action it took. See Bartles v. Hinkle
196 W.Va. 381, 389-90, 472 S.E.2d 827, 835-36 (1996) (the question is not
whether we would have imposed a more lenient penalty had we been the trial court,
but whether the trial court abused its discretion in imposing the sanction).
In Gribben v. Kirk
, 195 W.Va. 488, 466 S.E.2d 147 (1995), this Court explained
the abuse of discretion standard as follows: Under the abuse of discretion
standard, we will not disturb a circuit court's decision unless the circuit court
makes a clear error of judgment or exceeds the bounds of permissible choices
in the circumstances. 195 W.Va. at 500, 466 S.E.2d at 159; see also
Gentry v. Mangum
, 195 W.Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995)
(In general, an abuse of discretion occurs when a material factor deserving
significant weight is ignored, when an improper factor is relied upon, or when
all proper and no improper factors are assessed but the circuit court makes a
serious mistake in weighing them).
Aside from the initial use of a former girlfriend
to supervise visitation, nothing in the record suggests that the trial court
made a clear error of judgment in allowing such supervised visitation or that
the trial court exceeded permissible choices, ignored a material factor, relied
upon an improper one, or made a serious mistake in weighing the proper factors.
Accordingly, I dissent from the judgment
of this Court depriving the trial judge of his discretion without cause.
I note with disdain that
the DHHR originally permitted Robert H.'s former girlfriend to serve as the
supervisor of visitation. There is absolutely no justification for such a decision.