Michael N. v. Brandy M. and Allen M. ( 2020 )

FILED
June 18, 2020
No. 18-0780 -- Michael N. v. Brandy M. and Allen M. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Hutchison, Justice, dissenting:
In order to fashion a remedy for the petitioner Michael N., the majority
opinion has ignored the dictates of both the West Virginia Legislature and this Court’s
decision in State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 474 S.E.2d 554 (1996). Most
importantly, the majority has failed to adequately consider the very real harm that the
decision to allow this paternity action could inflict on the lives of these children.
West Virginia Code § 16-5-10(f) (2006) directs that if a mother is married at
the time her child is conceived or born, her husband’s name shall be entered on the birth
certificate as the child’s father. 1 Brandy M. and Allen M. were married at the time of the
conception and birth of both of these children, and Allen M. is listed as the father on their
1
West Virginia Code § 16-5-10(f)(1) provides:
(f) If the mother was married at the time of either conception
or birth, or between conception and birth, the name of the most
recent husband shall be entered on the certificate as the father
of the child, unless:
(1) Paternity has been determined otherwise by a court of
competent jurisdiction pursuant to the provisions of article
twenty-four, chapter forty-eight of this code or other applicable
law, in which case the name of the father as determined by the
court shall be entered on the certificate; . . . .
This statute goes on in subdivisions (f)(2) and (f)(3) to provide other avenues for specifying
paternity on a birth certificate, but those provisions do not apply in this case. See W.Va.
Code § 16-5-10(f)(5).
1
birth certificates. Pursuant to this statute, a person must comply with the directives of
chapter forty-eight, article twenty-four of the West Virginia Code to establish paternity in
someone else. Id. 2
As the majority opinion discusses, West Virginia Code § 48-24-101(e)
(2002) specifically lists who has standing to file an action to establish paternity. Notably
absent from the list is a putative biological father who seeks to establish his paternity of a
child born to a woman who is married to another man. Prohibiting standing in such
situations was a policy decision made by the Legislature. Regardless of whether I or other
members of this Court may agree or disagree with this policy choice, we are duty bound as
justices to apply a statute as written unless it is unconstitutional:
This Court does not sit as a superlegislature,
commissioned to pass upon the political, social, economic or
scientific merits of statutes pertaining to proper subjects of
legislation. It is the duty of the Legislature to consider facts,
establish policy, and embody that policy in legislation. It is the
duty of this Court to enforce legislation unless it runs afoul of
the State or Federal Constitutions.
Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009).
In order to reach a result favorable to the petitioner, the majority opinion
relies upon a very narrow exception to the standing requirement that was carved out in
2
See supra n. 1.
2
Stone. Specifically, the Stone Court declared that West Virginia Code § 48-24-101(e) 3 is
unconstitutional as applied to a putative father who proves by clear and convincing
evidence that he has already established a substantial parental relationship with the child,
and the child would not be harmed by allowing the paternity action to proceed. See Syl.
Pts. 3 & 6, Stone. The Stone Court concluded that in those very narrow circumstances, the
standing statute violated the putative biological father’s right to Due Process under the
West Virginia Constitution, article III, section 10.
Critically, the petitioner herein has not already established a substantial
relationship with these children. At most, he spent a few months with O.M. while the child
was an infant, and he has never seen E.M. The Stone Court expressly “[left] for another
day” the question of whether there should be an additional constitutional exception created
for a putative father who alleges and proves that he would have developed such a
relationship with a child but for the mother’s repudiation of him. 196 W. Va. at 636, 474
S.E.2d at 566. Thus, although Stone expressly does not apply to the facts as alleged by
Michael N., the majority opinion has gone ahead and applied it anyway. 4
3
When Stone was decided, this statute was codified at West Virginia Code § 48A-
6-1(e).
The majority opinion also makes the confusing statement that because of the
4
disposition of the petitioner’s first assignment of error, which addressed standing under the
statute, the majority of the Court did “not find it necessary to consider the second
assignment of error” regarding the petitioner’s contention that the circuit court did “not
adequately consider[] his constitutional rights[.]” See Slip Op. p. 12. However, the only
3
Furthermore, when declaring West Virginia Code § 48-24-101 partly
unconstitutional, the Stone Court recognized that “[m]erely identifying that a law affects
an individual liberty is not the end of the matter; our doctrines permit the State to intrude
upon liberties protected by the Due Process Clause when reasonably necessary to
accomplish a goal of countervailing importance.” 196 W. Va. at 633, 474 S.E.2d at 563.
Obviously, one of the legislative goals of the statute requiring that the husband’s name be
listed on the birth certificate, and of the statute denying a putative biological father standing
to challenge paternity when the child was born during the mother’s marriage to another
man, is the protection of an existing family unit. Another obvious goal is the protection of
the child’s welfare and best interests. “[T]he primary goal . . . in all family law matters,
must be the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W. Va.
79, 479 S.E.2d 589 (1996); Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d
866, 872 (1989) (recognizing that “the best interests of the child is the polar star by which
decisions must be made which affect children”).
In my opinion, Stone has gone as far on this issue as our Court should go.
Given the social policy issues involved, if there are to be additional exceptions to the
standing statute, the Legislature and not this Court should create them. It is notable that the
Legislature has amended West Virginia Code § 48-24-101 in the years since Stone was
decided, but this restriction on standing remains unchanged.
way that the petitioner could have standing in contravention of West Virginia Code § 48-
24-101 would be to declare the statute unconstitutional as applied to him.
4
Even assuming arguendo that the holding in Stone did apply to this case, it
is important to remember that there are two parts to the Stone test. To obtain paternity
testing, the putative biological father must prove by clear and convincing evidence the
existence of a substantial relationship with the child and that testing is in the best interests
of the child. Syllabus point 7 of Stone provides:
When a putative biological father raises a paternity
claim, the child must be joined and a guardian ad litem
appointed. The circuit court should conduct a preliminary
hearing to determine whether the requisite preconditions are
present. In addition, the preeminent factor in deciding whether
to grant or deny blood testing is the child’s best interests. The
analysis of each factual situation is necessarily a discretionary
decision for the circuit court, and the finding by the circuit
court will not be reversed absent an abuse of discretion.
(Emphasis added). The recognition of a putative parent’s biological relationship must never
be done at the expense of a child’s best interests. This is why Justice Cleckley, when
authoring Stone, set forth several factors in footnote 25 that a court could consider when
deciding whether to allow paternity testing:
Examples of factors that may be considered when
conducting this two-step analysis include: (1) examining the
child’s current home environment, (2) the on-going family
relationship, (3) the child’s relationship with the putative
father, (4) the child’s knowledge and reaction to paternity
proceedings, (5) the putative father’s attempt to become
involved in the child’s life, (6) whether the putative father
acquiesced in allowing another to establish a father-child
relationship, (7) when the putative father discovered he might
be the biological father, (8) whether there is an existing child-
parent relationship with the presumed father, and (9) whether
ascertaining genetic information might be important for
medical treatment or genealogical history. This is not an
exhaustive list of factors that could be relevant. What is
5
ultimately to be considered should be left to the discretion of
the circuit court [now family court].
196 W. Va. at 637 n.25, 474 S.E.2d at 567 n.25. These are factors for consideration when
deciding whether to allow paternity testing, not simply when deciding, post-testing,
whether a man who is determined to be the biological father should receive custody or
visitation. Id.
The majority opinion has given little consideration to the impact that this
paternity action might have on these children. The majority opinion purports to be
remanding the matter for the family court to hold a hearing on the children’s best interests,
but the family court has already held an evidentiary hearing and has already made findings
on this issue. After making those findings, the family court ordered the paternity testing to
go forward; it was only halted when the circuit court granted a writ of prohibition.
After considering the factors suggested in Stone footnote 25, I am convinced
that it would not be in the best interests of these children to allow the petitioner to pursue
this paternity action. Once testing is performed, the “bell cannot be unrung.” It will upend
the children’s current home environment, lives, and their ongoing relationship with Allen
M.—who is the only father they have ever known—if they are told that Allen M. might not
6
be their dad, or if they are forced to travel across the country to visit a man whom they do
not know. 5
The family court did “not believe it contrary to the best interests of the minor
children to be loved by as many caretakers as may be willing,” but this platitude obviously
does not always hold true, particularly when children are at the center of a contentious
dispute. The family court also decided that Brandy and Allen M.’s family life would not
be rendered “less harmonious” because there had already been at least two periods of
separation between them in the past (when Brandy went to Arkansas). However, that
finding only addresses the impact on the adults, not on the children. One child was an
infant, and one child was not even born, when Brandy M. spent that time in Arkansas,
therefore those periods of separation are irrelevant to an evaluation of the impact upon the
children. Instead of focusing on the rights of the adult, the best interests analysis requires
a court to focus on the children. I agree with the circuit court’s observations in its August
9, 2018, order:
[The petitioner] has requested paternity testing as a predicate
for arguing an allocation of custodial responsibility. In the
proposed parenting plan submitted originally with the petition
in this matter [the petitioner] outlines what he believes is
appropriate contact with the children. Along with the contact
comes a significant disruption of the only family these two
children have known. The travel arrangements, periods of
visitation, and holiday visits will have a substantial impact on
the children. After a period of two years absence, allowing [the
5
In his petition to establish paternity, the petitioner submitted a proposed plan for
allocation of custodial responsibility.
7
petitioner] to interfere with the children’s situation will
undoubtedly adversely impact the goal of the children’s
stability, certainly, and security—physically, psychologically,
and emotionally[.]
For all of the reasons set forth herein, I respectfully dissent.
8