REBECCA LYNN v. MICHAEL JOSEPH (2002)

The appellant and plaintiff below, Rebecca Lynn C.¹ [hereinafter referred to as “Ms. C.”], appeals from an order entered July 2, 2001, by the Circuit Court of Ohio County.   In that order, the circuit court upheld a prior agreement between Ms. C. and Michael Joseph B. [hereinafter referred to as “Mr. B.”], the appellee herein and defendant below, whereby Mr. B. agreed to make a lump sum child support payment to Ms. C. in exchange for his relinquishment of all parental rights in and to the parties' child.   On appeal to this Court, Ms. C. contends that a change of circumstances involving the child's health necessitates a modification of the parties' prior agreement and an award of additional child support.   Upon a review of the parties' briefs, the record submitted for appellate consideration, and the parties' arguments, we affirm the decision of the Circuit Court of Ohio County.

I.

FACTUAL AND PROCEDURAL HISTORY

During its consideration of this matter, the circuit court found the following facts.   Ms. C. and Mr. B. had a romantic relationship, which ended shortly before Ms. C. discovered that she was pregnant with the parties' child.   Prior to the child's birth, Ms. C. discussed with her attorney an arrangement whereby Mr. B. would pay a set amount of child support and relinquish his parental rights to the child.   Although Ms. C.'s counsel subsequently communicated this proposal to counsel for Mr. B., the birth of the parties' child on May 27, 1988, foreclosed further discussions.   Thereafter, on October 12, 1988, Ms. C. instituted a paternity action seeking to establish that Mr. B. was the father of Ms. C.'s child and to obtain an award of child support.

Following hearings before the family law master ² and the receipt of his recommended decision, the circuit court entered orders on January 17, 1990, and April 11, 1990, determining Mr. B. to be the father of Ms. C.'s child;  awarding custody to Ms. C.;   extending visitation rights to Mr. B.;   imposing joint liability on Ms. C. and Mr. B. for the child's medical expenses;  and granting child support to Ms. C. By subsequent order entered June 7, 1990, the circuit court modified the amount of its prior award of child support.³

In the months after the court's June order, Ms. C. and Mr. B. resumed their earlier negotiations regarding a settlement to involve a lump sum payment of child support by Mr. B., and his relinquishment of all parental rights to the parties' child.   As a result of Ms. C. not being represented by counsel at that time, Mr. B.'s attorney declined to assist him with the drafting of such an agreement.   By letter dated August 28, 1990 [hereinafter referred to as the “letter agreement”], Mr. B. memorialized the parties' arrangement, in pertinent part, as follows:

I [Mr. B.] will pay you [Ms. C.] the total amount of Thirty Five Thousand Dollars ($35,000.00) for all past and future support of [the parties' child], as well as all past and future medical expenses for you and [the child]․

․

I will relinquish any custodial or parental right to [the child], including any rights of visitation.

I will agree to execute all necessary forms relinquishing any custodial or parental right to [the child] necessary for any future adoption purposes.   The form also will provide that [the child's] name can be changed or adopted without further notice.

․

To the extent that this agreement must be approved by Judge Broadwater, I will assume all fees and expenses associated with obtaining the consent.

If this letter contains our complete understanding, please sign your name at the end of this letter and I will attempt to obtain all necessary consents from the court.

Upon Ms. C.'s acquiescence to the terms of the letter agreement, Mr. B. petitioned the circuit court to approve the parties' letter agreement.   By order entered November 14, 1990, the circuit court determined the parties' letter agreement to be “fair and reasonable, and in the best interests of the plaintiff [Ms. C.] and [the parties' child], and under the circumstances, ratif [ied] and approve[d] the letter agreement dated August 28, 1990.” ⁴

It is undisputed that Mr. B. made the requisite payments to Ms. C. in accordance with the letter agreement and court order.   Further, there is no dispute that Mr. B. correspondingly has foregone any attempt to contact, communicate, or otherwise form a relationship with the parties' child.

On October 24, 1994, Ms. C.'s child (and former child of Mr. B.) was diagnosed with Type I, Brittle Juvenile Diabetes.   The record indicates the child is generally in good health and is active.   The treatment of the child's medical condition requires regular blood sugar testing and insulin shots, as well as quarterly physician's appointments and laboratory tests.   The approximate cost for such care is $218.85 per month, and is not covered by Ms. C.'s medical insurance for the child.   Presumably as a result of these expenses, Ms. C., on February 26, 1996, petitioned the circuit court to set aside its earlier ratification of the parties' letter agreement insofar as it terminated Mr. B.'s obligation to pay child support.⁵  Mr. B. responded by filing a motion to dismiss Ms. C.'s petition.

The family law master took evidence on both motions.   A decision was filed by the family law master recommending Ms. C.'s motion be denied and Mr. B.'s motion be granted.   Ms. C. objected to the family law master's recommendation.   The circuit court, by order entered July 2, 2001, adopted the recommendation of the family law master.   From this order of the circuit court, Ms. C. appeals to this Court.

II.

STANDARD OF REVIEW

 The circuit court characterized Ms. C.'s motion as seeking relief under Rule 60(b) of the West Virginia Rules of Civil Procedure.   We have held that “[a] motion to vacate a judgment made pursuant to Rule 60(b), W. Va. R.C. P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.”   Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).   We further held in Syllabus point 3 of Toler that “[a]ppeal of the denial of a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order.”  157 W.Va. 778, 204 S.E.2d 85.

Insofar as the circuit court's order denying Ms. C.'s Rule 60(b) motion adopted the recommendation of the family law master, our review is also guided by Syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), where we held, in part, that:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied.   Under these circumstances, a final ․ order is reviewed under an abuse of discretion standard;  the underlying factual findings are reviewed under a clearly erroneous standard;  and questions of law and statutory interpretations are subject to a de novo review.

See also Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 393 n. 11, 465 S.E.2d 841, 850 n. 11 (1995) (“In reviewing the decisions of the circuit court [reviewing a family law master's recommended order], the scope of this Court's review is relatively narrow.   Our role is limited to considering errors of law and making certain that the circuit court adhered to its statutory standard of review of factual determinations, that is, whether the family law master's findings are supported by substantial evidence and consistent with the law.”).

III.

DISCUSSION

The primary issue presented by the instant appeal is whether Ms. C. established grounds to require Mr. B. to pay additional child support, after his parental rights were terminated.   The circuit court's order set out numerous substantive and procedural reasons to deny the relief sought by Ms. C. However, we need address only one of the reasons given by the circuit court in order for us to dispose of this case.   The circuit court found that it did not have continuing jurisdiction to award additional child support in this case.   We agree.⁶

 As a general matter, a circuit court “is vested with continuing jurisdiction to modify its original order regarding child support ․, as the circumstances of the parties or the welfare of the children may require.”  Carter v. Carter, 198 W.Va. 171, 177 n. 10, 479 S.E.2d 681, 687 n. 10 (1996).   See W. Va.Code § 48-11-105 (2001) (Supp.2002).   The decisions of this Court that have recognized a circuit court's continuing jurisdiction to modify a child support order have primarily been in the context of a parent whose parental rights had not been terminated.   We have never squarely addressed the issue of a circuit court's authority to award additional child support after an obligor's parental rights have been terminated.⁷  The resolution of this issue, however, was alluded to in dicta by this Court in In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).

One of the issues in Edward B. involved the circuit court's termination of parental rights of a mother and putative father.   This Court reversed the lower court's ruling as it related to the mother and remanded the case for further consideration.   In doing so, the Court noted in dicta that “[i]f the [mother's] rights are not terminated after consideration on remand, adoption is no longer an issue, and the [mother's] rights to receive support from the natural father would be negated by termination of the father's parental rights.”  Edward B., 210 W.Va. at 636 n. 24, 558 S.E.2d at 635 n. 24.

Edward B. alluded to, in dicta, what appears to be the position taken by a majority of courts addressing the issue.   That is, a majority of courts have held that “an order terminating parental rights completely severs the parent-child relationship and deprives the court of the authority to make an award of child support.”  County of Ventura v. Gonzales 88 Cal.App.4th 1120, 106 Cal.Rptr.2d 461, 462 (2001).   See Erwin v. Luna, 443 So.2d 1242, 1244 (Ala.Civ.App.1983);  In re Bruce R., 234 Conn. 194, 662 A.2d 107, 111 (1995);  Ponton v. Tabares, 711 So.2d 125, 126 (Fla.Ct.App.1998);  Department of Human Res. v. Ammons, 206 Ga.App. 805, 426 S.E.2d 901, 902 (1993);  Kansas ex rel. Sec'y of Soc. & Rehab. Servs. v. Clear, 248 Kan. 109, 804 P.2d 961, 966 (1991);  Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky.Ct.App.1994);  Louisiana v. Smith, 571 So.2d 746, 748 (La.Ct.App.1990);  In re Estate of Braa, 452 N.W.2d 686, 688 (Minn.1990);  Schleisman v. Schleisman, 989 S.W.2d 664, 671 (Mo.Ct.App.1999);  Nevada v. Vine, 99 Nev. 278, 662 P.2d 295, 297-98 (1983);  Gabriel v. Gabriel, 519 N.W.2d 293, 295 (N.D.1994);  In re Scheehle, 134 Ohio App.3d 167, 730 N.E.2d 472, 475 (1999);  Kauffman v. Truett, 771 A.2d 36, 39 (Pa.Super.2001);  Coffey v. Vasquez, 290 S.C. 348, 350 S.E.2d 396, 398 (Ct.App.1986);  Estes v. Albers, 504 N.W.2d 607, 608 (S.D.1993);  Swate v. Swate, 72 S.W.3d 763, 771 (Tex.Ct.App.2002);  Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 38 Va.App. 107, 562 S.E.2d 327, 329 (2002);  In re Dependency of G.C.B., 73 Wash.App. 708, 870 P.2d 1037, 1042 n. 6 (1994).   But see Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328, 331 (1996) (concluding that child support obligation continues after parental rights have been terminated);  Rhode Island v. Fritz, 801 A.2d 679, 685 (R.I.2002) (same).

The majority rule is premised upon the reality that “termination of parental rights is a complete severance of all ties between the child and parent so as to render them ‘legal strangers[.]’ ”  Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 38 Va.App. 107, 562 S.E.2d 327, 329 (2002).   Consequently, “[b]ecause a party whose parental rights have been terminated is a ‘legal stranger’ to the child, that parent no longer has a duty to support the child.”  Fletcher, 562 S.E.2d at 329.   Of course, “[t]ermination does not foreclose the possibility that a parent may seek to recover the amount of past due child support.”  Swate v. Swate, 72 S.W.3d 763, 771 (Tex.Ct.App.2002).   See Runner v. Howell, 205 W.Va. 359, 518 S.E.2d 363 (1999) (per curiam) (disapproving cancellation of child support payments that accrued before obligor agreed to relinquish parental rights).   Even so, “[a] judgment terminating a parent's rights ․ absolves that parent of all future support obligations.”  In re Bruce R., 234 Conn. 194, 662 A.2d 107, 111 (1995).

 In view of the foregoing authorities, we hold that a final order terminating parental rights completely severs the parent-child relationship, and deprives the court of the authority to impose a post-termination award of child support on the parent whose rights have been terminated.   However, termination of parental rights does not deprive a court of jurisdiction to enforce payment of child support that accrued before the obligor's parental rights were terminated.

The position adopted today is distinguishable from this Court's ruling in Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986).   In Kimble, the ex-husband of the appellant executed an agreement to permit the appellant's new husband to adopt the parties' child.   As a condition for this agreement, the ex-husband would be relieved of child support payments once the adoption was finalized.   The adoption was never finalized, and the appellant, a year later, sought past child support payments from her ex-husband.   The circuit court awarded past child support payments up to the day the parties executed the adoption agreement, but relieved the ex-husband of all child support payments that had accrued after execution of the agreement.   On appeal this Court held, in Syllabus point 1, that “[t]he execution of consent to the adoption of a child by its custodial parent and the custodial parent's current spouse is alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments.”  176 W.Va. 45, 341 S.E.2d 420.   We therefore reversed and remanded the case for the trial court to determine whether principles of equitable estoppel precluded the appellant from obtaining child support payments.

The decision in Kimble stands for the proposition that an agreement to allow a child to be adopted that has not been approved by a court order, will not relieve a parent of his/her child support obligation.⁸  Kimble did not address the issue confronting this Court in the instant case.   That is, in the matter sub judice, we are confronted with an agreement to terminate parental rights that was approved of and executed by the circuit court.⁹

 In the instant proceeding, Ms. C. does not challenge the validity of the termination of Mr. B.'s parental rights.   That is, Ms. C. does not seek to have Mr. B.'s parental rights restored to the child.   Instead, Ms. C. argues that she is entitled to have additional child support from Mr. B. because of changed circumstances in the health of the child.   Additional support is not available as a result of the termination of Mr. B.'s parental rights.   The order terminating Mr. B.'s parental rights required him to pay $35,000.00 to fulfill all of his child support obligations.   In this appeal, Ms. C. does not allege that Mr. B. failed to comply with the child support provisions of the order that terminated his parental rights.   Instead, Ms. C. seeks to impose additional post-termination child support upon Mr. B. The relief sought by Ms. C. cannot be awarded because Mr. B. has become a “legal stranger” to Ms. C.'s child.   Simply put, “[a] parent whose parental rights have been terminated is relieved of all duties and obligations to support the child [.]”  Kansas ex rel. Sec'y of Soc. & Rehab. Servs. v. Clear, 248 Kan. 109, 804 P.2d 961, 966 (1991).   It is quite clear that in applying our holding to the facts of this case, we must affirm the circuit court's determination that it lacked authority to award additional child support to Ms. C.

IV.

CONCLUSION

We affirm the July 2, 2001, order of the Circuit Court of Ohio County.

Affirmed.

(Filed Dec. 12, 2002)

I dissent because the first sentence of syllabus point three is an unnecessary, inappropriate and heretofore incorrect statement of the law.   The first sentence of syllabus point three, as propounded by Chief Justice Davis, reads as follows:

A final order terminating parental rights completely severs the parent-child relationship, and deprives the court of the authority to impose a post-termination award of child support on the parent whose rights have been terminated.

Because the majority makes this new law without a proper evidentiary basis, the necessary result is to inject confusion and a lack of clarity into this state's laws governing paternity, abuse and neglect, inheritance rights, parental responsibility, and adoption.

The underlying action involved a child support order entered on June 7, 1990, as a result of a paternity action in which it was determined that the defendant was the biological father of the child in question.   The initial order of support required the father to pay child support in the amount of $300 per month, from June 1, 1988, until the child reached the age of majority on May 27, 2006, together with one-half of all future medical expenses, as well as all of the previously incurred birth expenses.   By order entered November 14, 1990, the original support order was modified.   After finding the modification “fair and reasonable, and in the best interest of the plaintiff” and the child, the trial court entered a judgment for $35,000, in lieu of the monthly child support payments and in lieu of future medical expenses.   This judgment was payable, without interest, in four installments with the final installment due on March 1, 1992.   The order entering the judgment contains no explanation of why the child support formula then in effect was to be disregarded other than the bare assertion that the order was in the supposed “best interests” of the child.

That order of November 14, 1990, further purported to find that the father had by a letter agreement “relinquished any and all custodial and parental rights to the child” and recited further that the said order “may be utilized․ in any future adoption proceedings as a complete relinquishment by the natural father ․ of any parental rights ․” and that any such adoption proceedings may occur without future notice to the father.¹  A review of the November 14, 1990, order discloses that neither the natural father or mother, nor any guardian ad litem or child advocate was present before the court when the letter agreement was approved by the court.   Apparently, the father's lawyer and the judge were the only individuals present when the final order was approved for entry.

That order of November 14, 1990, and the “letter agreement” upon which the order is based, are deficient for a number of reasons:

1.  The applicable statute relating to the conduct of paternity proceedings at the time, expressly required that the children's advocate for the county “shall represent the state of West Virginia and shall litigate the action in the best interests of the child ․” W. Va.Code § 48A-6-5 (1989) (repealed by 2001 W.Va. Acts, ch. 91).   The absence of the child advocate from the negotiations and from the presentation of the order suggests that the interests of the State of West Virginia were not represented or considered and the best interests of the child received short shrift in the hearing and entry of the order.

2. The sole remedy authorized by the paternity statute, once paternity is established, was the fixing of an order of support.   See W. Va.Code § 48A-6-4 (1989) (repealed by 2001 W.Va. Acts, ch. 91).   The identification of conditions for a possible future adoption of the child simply was not and is not a part of the paternity proceedings.

3. The letter agreement expressing the natural father's intent to relinquish and terminate his parental rights was not acknowledged, although West Virginia Code § 49-6-7 (1977) (Repl.Vol.2001) has provided for the acknowledgment of written voluntary terminations since at least 1977.

4. The letter agreement expressing the natural father's willingness to consent to adoption was not, as required by statute, “acknowledged as in the case of deeds,” although the agreement was filed with the trial court below prior to when the court entertained the motion for modification of its prior support order.   See W. Va.Code § 48-4-3 (1985).2

Even if it might be properly said that the natural father “relinquished” his rights and that those rights were “terminated,” it simply is not and never has been the law in West Virginia that a relinquishment or termination of parental rights completely severs the parent/child relationship.   Despite the impressive string cite of authority from other jurisdictions that the majority relies upon to support this proposition, numerous laws arising under both statutes and the common law prevent such a holding from being valid in this state.

One area of the law that demonstrates the improper reach of the majority's new holding concerns the specific recognition this Court has accorded to post-termination visitation rights.   Based on our clear recognition of the possibility of post-termination visitation rights, which is grounded on a child's right “to continued association with those with whom he or she shares an emotional bond,” ³ the new syllabus point squarely conflicts with our established precedent in this area.  In re Christina L., 194 W.Va. 446, 455, n. 9, 460 S.E.2d 692, 701 n. 9 (1995);  see Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989).

Even when parental rights are terminated in abuse and neglect cases, our law expressly permits applications by the child or the child's parents for the modification of dispositional orders by reason of changed circumstances at any time up to the date of the entry of an order of adoption.   See W. Va.Code § 49-6-6 (1977) (Repl.Vol.2001).   Similarly, a parent whose rights have been terminated, but whose child has not yet been adopted may participate in the formulation and execution of the child's case plans.

Further evidence of the majority's erroneous conclusion that a “complete [ ] sever[ance] [of] the parent-child relationship” results upon the entry of a termination of rights order is demonstrated by looking to the issue of inheritance rights.   Under the laws of descent and distribution, a natural child has the right to inherit from his biological parents.   By law, this right is extinguished only upon the entry of an order of adoption.   See W.Va.Code § 48-22-703 (2001).⁴  Thus, until an adoption takes place, a child whose parental rights have been terminated would still be entitled to inherit from or through that parent.   However, the majority's new syllabus point purportedly requires that our inheritance laws would not be operable in instances following a termination but before an adoption takes place.   Thus, if we assume the death of a well-heeled grandparent and probate of a will providing for distribution to the deceased grandparent's grandchildren at some time after the entry of an order terminating parental rights, but before entry of a final order of adoption, the majority, through its ill-conceived syllabus point, would void that child's rights of inheritance by terminating in toto the parent/child relationship.   That the majority is just plain wrong in its reach to terminate all rights in one fell swoop is demonstrated through this clear conflict with our adoption laws.   Until an order of adoption is entered, the child retains the clear right of inheritance from and through its natural parents.

Likewise, we have recognized that the execution of a consent to adoption (in this case for adoption by a custodial parent and that parent's current spouse) “is alone insufficient to terminate a noncustodial parent's decretal obligation to make child support payments.”   Syl. Pt. 1, Kimble v. Kimble, 176 W.Va. 45, 341 S.E.2d 420 (1986);  Stevens v. Stevens, 186 W.Va. 259, 412 S.E.2d 257 (1991).   This holding further demonstrates the significance of an actual adoption on the issue of terminating parental rights.   The reality is that until adoption is in fact ordered, the relationship of parent and child continues, even if a parent's rights regarding that child have been modified or attenuated by law.

In its rush to resolve this matter based on procedural deficiencies, the majority incorrectly adopts the position of Appellee as that of the trial court.   While the trial court disposed of Appellant's request for relief essentially on “benefit of the bargain” ⁵ grounds, the majority attributes lack of continuing jurisdiction as the ground relied upon by the trial court to deny her relief.   Instead, the lower court based its decision on the fact that it had approved Appellee's voluntary relinquishment of his parental rights after finding “that the agreement was in her [Appellant's] and her child's best interests.”

Without giving any real discussion to the issue of whether the relinquishment of parental rights was in the child's best interests,⁶ the majority overlooks the primary argument raised by Appellant:  Public policy dictates that a court approved revocation of parental rights with an accompanying lump sum payment of child support should not be viewed as barring an award of additional support when the child is later diagnosed with a previously unknown and uncontemplated medical condition that will require continuing long-term treatment.⁷  Closely linked with this argument is the lack of any representation of the child's interests during the paternity and revocation proceedings.⁸  The ultimate principle at stake here is that, while parents of a child may bargain and formulate agreements allocating their respective duties of support for that child in a paternity proceeding, the right to support belongs to the child and is to be protected by the state-in this case by the child advocate.   Where, as is the case here, that protection was circumvented and the child and the state were simply not represented, the parents' bargain is not binding on the child or the state.

Through its resolution of the issues raised on appeal, the majority completely skirts the lack of representation issue.   Despite the clear language of the paternity statute in effect at the time of the proceedings, the children's advocate was not involved in the matter below.   The provisions of West Virginia Code § 48A-6-5(a) (1989) ⁹ required that:

The children's advocate of the county where the action under this section is brought shall represent the state of West Virginia and shall litigate the action in the best interests of the child although the action is commenced in the name of a plaintiff listed in section one [§ 48A-6-1] of this article.

In response to the argument raised by Appellant as to the child's lack of representation, Appellee contends that “[c]urrently and at the time the Final Order was entered [November 14, 1990], the law did not require the appointment of a guardian at litem.” ¹⁰  This is simply an inaccurate statement of the law.   As discussed above, the law did require representation of the child's best interests in the form of the child advocate in all paternity actions.   See W.Va.Code § 48A-6-5.   Through this Court's decision in Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989), we clearly had recognized the need for representation of a child's interests in a paternity proceeding.   That recognition was formally adopted as a point of law by this Court in syllabus point three of Cleo A.E. v. Rickie Gene E., 190 W.Va. 543, 438 S.E.2d 886 (1993).   See note 10 supra.

Another ground of appeal raised by Appellant is the lack of an evidentiary hearing on the issue of whether approval of the letter agreement revoking Appellee's parental rights was in the best interests of the child.   We have since recognized in Runner v. Howell, 205 W.Va. 359, 518 S.E.2d 363 (1999), that “[s]ome evidence must be taken to determine the child's best interests when the question of termination of parental rights is posited, especially in cases where it appears the primary reason for the termination is to cease the payment of child support.”  Id. at 364, 518 S.E.2d at 368.   From the record, it appears that the trial court's ruling that the letter agreement was in the best interests of the child was nothing more than a perfunctory finding as it is not supported by any specific factual evidence that would support such a conclusion.¹¹

Because this Court cannot declare the effects of a termination of parental rights to be more expansive than that declared by the Legislature, I vigorously dissent to the majority's incorrect conclusion that the termination of parental rights ¹² coterminously extinguishes the entirety of the parent-child relationship and the attendant rights flowing therefrom.   Rather than denying relief to Appellant, I would have remanded this case with directions to review the adequacy of the child support ordered through the order entered on November 14, 1990, in light of the intervening financial situation of the parents and the current medical condition of the child, and require the full participation of a guardian ad litem on behalf of the child in that proceeding.

I am authorized to state that Justice STARCHER joins me in this dissent.

(Filed Dec. 13, 2002)

The majority opinion, though well-intentioned, is best regarded as a jurisprudential outlier.¹  As I see it, the majority is motivated (and somewhat blinded, I think) by an entirely understandable zeal to protect the interests of people (such as grandparents and adoptive parents) who may at some point have reason to want to exclude others from asserting some type of alleged “parental rights.”

The majority has unfortunately, in the exercise of this zeal, created precedent for dads to pay off moms with a lump sum, and thereby avoid forever the long-term responsibilities of fatherhood.  (Or, less likely, moms paying off dads to avoid long-term maternal responsibilities.)

This sort of “buying your way out of parental obligations” is contrary to every known principle in our family law.

My reaction upon reading the majority opinion is that it overemphasizes the term “parental rights.”

As a parent of three (and grandparent of four), I expect that my piece of experience is a reasonable piece from which to speak.   Speaking personally, then:  I have found parenthood to be ninety-nine percent about responsibilities and relationships, and very little about “rights,” as that term is generally understood.

In my view (and I think that the law cited in the dissent by Justice Albright supports this view), nothing that a court can or should do can ever entirely sever the parent-child relationship.   For example, everyone would agree that a biological parent might be compelled to give a DNA sample to help save their child's life-even if the child had been adopted and a court had ratified the termination of child support obligations.

To emphasize parental “rights” as the quid pro quo for parental obligations is to unavoidably-even if not intentionally-foster the view of children as property, or chattels.   As in:  I have ownership rights in this property, therefore I have the duty to pay taxes or mow the lawn.

But children are not property.

Moreover, even in the world of property, “rights” and “responsibilities” are hardly an “either-or” situation.   For example, if I sell a piece of real estate, I probably have few if any “rights” to ordain thereafter how the property is used.   But in many circumstances, I can still be held responsible, if I used the property to create an environmental hazard.

My point is that ordinary parental legal obligations and responsibilities, like financial support-and ordinary parental authorities or jurisdiction, like deciding where a child goes to school, or selecting a child's doctor-are best seen as a continuum or a gestalt.

So seen, a biological parent does not either “have” or “not have” “parental rights.”   It's simply not a black or white, “either-or” type of relationship.

The use in the dissenting opinion by Justice Albright of the more nuanced and inclusive term “relationship” is appropriate.   This term faciltates recognition of the multifaceted and diverse legal, cultural, religious, and emotional duties, statuses, obligations, and opportunities that are inherent in the parent-child relationship.

I would hold that the family law judge in the instant case should have the authority to conduct a reasonable inquiry into the economic means of this child's biological parent.   If those means would permit him to help pay the child's substantial medical bills, I would allow the court to consider requiring such a contribution.²

I am authorized to state that Justice ALBRIGHT joins in this separate opinion.

FOOTNOTES

1.   Mr. B. moved this Court to denominate the parties by their initials in light of the sensitive nature of the facts involved in this proceeding.   We granted the motion.   Therefore, we adhere to the practice we follow in similar cases wherein it is necessary to protect the privacy of the parties involved.   See, e.g., In re Emily B., 208 W.Va. 325, 329 n. 1, 540 S.E.2d 542, 546 n. 1 (2000);  In re Michael Ray T., 206 W.Va. 434, 437 n. 1, 525 S.E.2d 315, 318 n. 1 (1999);  State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 559 n. 2, 490 S.E.2d 642, 646 n. 2 (1997).

2.   The West Virginia Legislature has abolished the office of family law master and replaced it with the judicial office of family court judge.   See W. Va.Code § 51-2A-1, et seq.   To maintain consistency with the proceedings underlying this appeal, however, we will continue to use the phrase “family law master.”

3.   Under the June 7 order, the circuit court modified the amount of its prior award of child support as follows:1.  That [Mr. B.] is responsible for child support at the rate of Three Hundred Dollars ($300) from and after June 1, 1988.2. That [Ms. C.] is granted a decretal judgment in the sum of Seven Thousand Two Hundred Dollars for child support from June 1, 1988 to May 31, 1990.3. That [Mr. B.] is responsible to pay the sum of One Thousand Five Hundred Forty-one Dollars Thirty-eight Cents ($1,541.38) for child birth costs as previously ordered by the Family Law Master[.]

4.   In accordance with this decision, the circuit court made the following pertinent rulings:(1) Judgment is hereby entered in favor of [Ms. C.] in the amount of Thirty-Five Thousand Dollars ($35,000.00) representing all past and future support of [the parties' child], as well as all past and future medical expenses for [Ms. C.] ․ and [the child]․․It is further, ORDERED that based upon said Letter Agreement, which is hereby ratified and approved, the petitioner [Mr. B.] be found to have relinquished any and all custodial and parental rights in and to [the parties' child] and that this order shall be sufficient evidence of that relinquishment and may be utilized by the plaintiff [Ms. C.] in any future adoption proceedings as a complete relinquishment by the natural father [Mr. B.] of any parental rights that he may have in [the child].   It is further,ORDERED that any future proceedings designed to either change the name of [the child] or to adopt [the child] may proceed and occur without any future notice to [Mr. B.].It is further, ORDERED that the decretal judgment contained in the order of June 7, 1990, be and the same is hereby held for naught and the petitioner released from any obligation thereunder[.]

5.   In her petition, Ms. C. did not challenge, or request modification of, Mr. B.'s relinquishment of his parental rights and the ratification thereof by the circuit court.

6.   The circuit court also concluded, and we agree, that Ms. C. was not entitled to relief because she failed to timely file her Rule 60(b)(1) motion.   Under the version of Rule 60(b) that was in place when Ms. C. filed her motion, she had only eight months to bring the motion after the final judgment was entered.   Cf. W. Va. R. Civ. P. 60(b)(1) (extending, under current version of rule, time within which aggrieved party must file motion within one year).   In this case, Ms. C. filed her Rule 60(b)(1) motion six years after the entry of judgment of which she complains.   It goes without saying, then, that Ms. C's untimely motion precludes her from seeking the relief she desires.   See State ex rel. West Virginia Dep't of Health & Human Res. v. Sinclair, 210 W.Va. 354, 362, 557 S.E.2d 761, 769 (2001) (Davis, J., dissenting) (“We have previously recognized that ‘in general, the law ministers to the vigilant, not to those who sleep on their rights.’  State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996).”).

7.   This case concerns only the issue of the termination of parental rights.   We do not address the issue of the effect of an adoption of a child as it relates to post-adoption child support.   See W. Va.Code § 48-22-703(a) (2001) (Repl.Vol.2001) (“Upon the entry of such order of adoption, any person previously entitled to parental rights ․ shall be divested of all obligations in respect to the said adopted child[.]”).

8.   The holding in Kimble was applied by this Court in Stevens v. Stevens, 186 W.Va. 259, 412 S.E.2d 257 (1991) (per curiam).   In Stevens, one of the issues we addressed involved an agreement made by the appellant father to have his parental rights terminated as to one of his children.   As a result of the parental termination agreement, the appellant argued on appeal that the circuit court erroneously required him to pay child support for the child.   We disagreed with the appellant.   In doing so, we held thatIn view of the circumstances and the holding in Kimble v. Kimble, this Court concludes that in the present case the appellant's parental rights to his daughter were never judicially terminated and that consistent with the rule set forth in Kimble v. Kimble, his obligation to support the child appropriately should continue.Stevens, 186 W.Va. at 262, 412 S.E.2d at 260.

9.   Not only did one circuit judge approve the agreement and conclude such termination to be in the best interest of the child, but, subsequent to the termination, the agreement and the “best interest of the child” was again reviewed by a family law master and by a second circuit judge.   As three judges have reviewed the matter and made lengthy findings of fact and conclusions of law regarding the best interest of the child, we conclude that, if there had been a challenge to the termination of parental rights, we would have found that there was no abuse of discretion in the lower court's ruling.

1.   Although it appears that a possible adoption was contemplated at the time of the entry of the final order, no adoption ever occurred.

2.   The current statute that sets forth the requirements for a consent to adoption is located at West Virginia Code § 48-22-303 (2001);  this statute sets forth, in lengthy detail, what must be contained in a document prepared for the purpose of expressing consent to or relinquishment for adoption of a minor child.

3.   While I recognize that the issue of post-termination visitation is inapplicable to this case based on the lack of any relationship between the child and her father, the fact that our law expressly recognizes and encourages continuity of the parent-child relationship where evidence of an emotional bond exists demonstrates the fallacy of the new point of law in the majority opinion which indicates that the parent-child relationship is necessarily extinguished as a matter of law concurrent with the termination of parental rights.   This is simply not the case.   While certain financial obligations may be terminated, the parent-child relationship is not per se eradicated upon the entry of a termination of rights order.We note additionally that the Legislature has similarly seen fit to recognize the need for a child to have “continuity of care and caretakers” and has expressly authorized the trial courts in disposing of abuse and/or neglect matters to consider this need.  W.Va.Code § 49-6-5(a)(6) (1998) (Repl.Vol.2001).   See Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995) (holding that trial courts have discretion to grant visitation to parents despite termination of rights based on abuse or neglect in appropriate cases);  W.Va.R.Proc.Abuse & Neglect 15 (recognizing that orders terminating parental rights may provide for continued visitation between the parent and child).

4.   This result obtains out of the legislative objective of treating adopted children for purposes of inheritance laws on par with natural children.   See Wheeling Dollar Sav. & Trust Co. v. Hanes, 160 W.Va. 711, 716, 237 S.E.2d 499, 502 (1977).

5.   The trial court opined that Appellant “wanted the Respondent [Appellee] to be out of her and her daughter's lives forever” and “[t]his is exactly what she bargained for and got.”

6.   The majority strains logic to suggest that best interests of the child were repeatedly considered by three different judges.   While the trial judge did make a finding on best interests, no evidentiary hearing was held on this issue.   To suggest, as does the majority, that the finding of the initial judge combined with the subsequent review by a family law master and a circuit court's review of the family law master's recommendation is quantitatively significant is specious.   This is especially true upon consideration of the limited scope of review by the second and third judges:  the issue was necessarily limited to whether the final order approving the revocation of parental rights should be set aside and was not a specific review of the “best interests” finding.

7.   By recognizing this policy argument, I am not intimating that the law should proceed in the direction suggested by Appellant.

8.   I also question the trial court's jurisdiction to entertain and rule upon a revocation of parental rights agreement in a proceeding that was instituted solely under the paternity statutes.   See W.Va.Code § 48A-6-1 to -6 (1989) (repealed by 2001 W.Va. Acts, ch. 91).

9.   This provision, along with the article it appears in, was repealed effective March 22, 2001.   See 2001 W.Va. Acts ch. 91.

10.   For this proposition, Appellee cites Kessel v. Leavitt, 204 W.Va. 95, 125-26, n. 31, 511 S.E.2d 720, 750-51, n. 31 (1998).   While the law stated in that note pertains to the discretion inherent to a trial court to appoint a guardian ad litem, it specifically pertains to custody matters and not paternity matters.   The appointment of a guardian ad litem in paternity actions was firmly established by 1993 with the holding in syllabus point three of Cleo A.E. v. Rickie Gene E., 190 W.Va. 543, 438 S.E.2d 886 (1993) that:  “A child has a right to an establishment of paternity and a child support obligation, and a right to independent representation on matters affecting his or her substantial rights and interests.”   Arguably, that right was recognized in 1989 by this Court in Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989):  “The appointment of a guardian ad litem is necessary to protect the child's interests with respect to paternity.” Id. at 406, 387 S.E.2d at 873.   In Michael K.T., we recognized the state's obligation to provide children who were the subjects of paternity proceedings with counsel through the former child advocacy office.   See 182 W.Va. at 406, 387 S.E.2d at 872 (citing W.Va.Code § 48A-6-5).

11.   There is no suggestion that Appellee would not have continued to provide for the child under the established child support of $300 a month that was in effect at the time of the approval of the letter agreement.   Appellant represents that upon calculation, the $35,000 lump sum payment of child support amounts to approximately $102 per month over the course of the child's eighteen years.

12.   In instances of adoption, in contrast to termination of parental rights, there is no question that all parental rights are forever divested.   See W.Va.Code § 48-22-703(a) (divesting parents upon adoption of all legal rights including inheritance).

1.   In science, an “outlier” is a statistical observation that is not homogeneous in value with others of a sample.

2.   I wonder if the hundreds or thousands of people whom the State Office of Child Support Enforcement is pursuing realize that they could have gotten out of their obligations essentially by signing a form consent to adoption and getting court approval of a lump-sum payoff, as the holding of the majority opinion suggests is proper.

DAVIS, Chief Justice:

Justices STARCHER and ALBRIGHT dissent and file dissenting opinions.