Opinion
No. 34751
Submitted: January 26, 2010
Filed: June 8, 2010
Appeal from the Circuit Court of Fayette County, The Honorable Paul M. Blake, Jr., Judge, Civil Action No. 08-CIGR-06.
AFFIRMED
Vickie L. Hylton, Esq., Fayetteville, West Virginia, Attorney for Appellants.
JUSTICE WORKMAN delivered the Opinion of the Court.
The Appellants, Cary P. and Jennifer P. (jointly "the Appellants"), reside together in Fayette County, West Virginia, with Jennifer's biological children, Richard P. and Devon P. On July 11, 2008, the Appellants filed a "Petition for Appointment of a Legal Guardian," in the Family Court of Fayette County, West Virginia, seeking to appoint Cary as the legal guardian of Richard and Devon. The Appellants do not wish to interfere with Jennifer's parental rights but instead seek to allow Cary, as a legal guardian, to make medical, educational and other legal decisions for the children when Jennifer is unavailable.
The Court follows its customary practice in cases involving minors of using only the first initial of the parties' last names, in order to protect the privacy of the minors. See, e.g., In re Emily B., 208 W. Va. 325, 329 n. 1, 540 S.E.2d 542, 546 n. 1 (2000).
The family court, believing that the petition included an abuse and neglect allegation, transferred the case to the Circuit Court of Fayette County. After conducting a hearing and receiving further briefing from the Appellants, the circuit court denied the petition, finding that the statute authorizing guardianship appointments for minors did not permit such an appointment under the circumstances presented in this case. On appeal, the Appellants waived oral argument, and the case was submitted on briefs. Having considered those briefs, the record in the case, and all relevant legal material, this Court affirms the circuit court's Order.
Although the West Virginia Department of Health and Human Resources ("DHHR") is designated as the Appellee in this case, it did not oppose the Appellants' petition below and has not filed a brief in this appeal.
I. FACTS AND PROCEDURAL HISTORY
Richard P. and Devon P. are both minors under the age of eighteen; Richard is approximately thirteen years old and Devon is approximately eleven years old. The boys' biological father, Richard A., resides in Indiana. He and Jennifer separated when the boys were very young, and he is no longer in their lives. Jennifer, Cary and the children have resided together since July 1999, at which time the boys were approximately three and one, respectively. Both Jennifer and Cary have acted as parents to the boys. Jennifer has consistently worked outside of the home, while Cary is a homemaker.
After Jennifer divorced Richard A., the boys initially maintained contact with their father, visiting him occasionally. In 2005, Richard A. was charged with sexually molesting his sons. He eventually pled guilty to "dissemination of matter harmful to minors," and the molestation charges were dropped. He was convicted, however, of molesting the thirteen-year-old daughter of his then girlfriend. Following the 2005 charges, the boys ceased all contact with their father. Richard A. does not pay child support and the Appellants allege, without documentation, that pursuant to Indiana statute, his parental rights have been terminated.
As a consequence of being abused by his father, Richard P. began acting out in school, exhibiting violent behaviors, and he has now undergone extensive psychological treatment, including inpatient hospitalization. As a result of these problems, the DHHR investigated the family. All of the DHHR's reports, however, indicate that Jennifer and Cary are "nurturing parents" who are "very supportive" of their children. The DHHR has consistently found no risk of abuse or neglect in the home. Devon P., the younger of the brothers, appears to be well adjusted and is not suffering the same consequences of the abuse as Richard P.
On July 11, 2008, the Appellants filed a "Petition for Appointment of a Legal Guardian," in the Family Court of Fayette County, seeking to have Cary appointed as the boys' legal guardian. Jennifer did not seek to relinquish any of her parental rights; rather, the Appellants sought to add Cary as a legal guardian, thus giving her the ability to make medical and educational decisions for the boys when Jennifer is unavailable. In the petition, the Appellants assert that Cary is a psychological parent to the boys and that legalizing their relationship would create stability for the children in the event that something happened to Jennifer and would protect the children if Richard A. ever attempted to reassert his parental rights. They further contended that appointing Cary as a guardian would clarify, before an emergency occurred, Jennifer's wishes for the care of her children.
The petition also sought a legal name change for Richard P., who was named after his father, Richard A. While undergoing psychological treatment, Richard became upset over having the same name as the man who had abused him and decided, with Jennifer and Cary's support, to change his first name. The circuit court granted this name change in October 2008, and that Order is not at issue in this appeal.
Because the record contains no documentation or explanation of the alleged termination under Indiana law of Richard A.'s parental rights, the Court is unable to discern whether the Appellants' concerns in this area are legitimate.
The petition indicates that the Appellants ultimately want Cary to legally adopt Richard and Devon and that they are seeking the guardianship as an interim measure.
The family court, concluding that the petition included an abuse and neglect allegation, transferred the petition, pursuant to Rule 48a of the West Virginia Rules of Practice and Procedure for Family Court, to the Circuit Court of Fayette County, West Virginia, on July 11, 2008. On July 18, 2008, the Circuit Court of Fayette County conducted a hearing on the petition. In addition to the Appellants, Tom Steele, counsel for the DHHR and Robin Holland, a Child Protective Services worker for the DHHR, were also present at that hearing. Mr. Steele informed the court that the DHHR supported the Appellants' petition and urged the Court to appoint Cary as the children's guardian. The circuit court, however, questioned the need for a guardian given that Jennifer, the biological mother, was alive, healthy and capable of caring for the children. The circuit court declined to rule on the petition at that hearing, instead taking the matter under advisement.
Following the hearing, the Appellants submitted an additional brief, entitled "Response to Court's Query," further outlining their reasons for seeking the guardianship despite Jennifer's current good health and well-being. In that brief, the Appellants pointed out that Jennifer's employment with an ambulance service frequently renders her unreachable for significant periods of time. Thus, they asserted, the children's best interests would be served by giving Cary legal guardianship, so that she could make legal, medical and other decisions for the children when Jennifer is unavailable. The Appellants provided three examples of incidences that have occurred as a consequence of Cary not having the legal ability to make medical decisions for the children, but which could have been avoided had Cary been the children's legal guardian.
In the first incidence, Devon had fallen and hurt his arm. Cary took him to the emergency room at the Plateau Medical Center, but the hospital refused to treat him because Cary could not legally consent to medical treatment. Jennifer was at work at the time, transporting a patient to Morgantown, West Virginia. Consequently, Devon did not receive treatment until a day later when Jennifer was back in Fayette County and could take him to the emergency room herself.
In another instance, which occurred while Richard was hospitalized for psychological treatment, Richard had been prescribed a medication that was causing him to shake. The hospital called the family home seeking consent to remove him from the medication. Jennifer was not home and Cary gave consent; the hospital, however, would not accept the consent from Cary, and continued to administer the medication until Jennifer, who had been at work at the time, was able to contact the hospital and give consent herself.
Finally, on a third occasion, Richard had been admitted to another hospital for psychiatric examination and treatment. The hospital would not allow Cary to visit Richard during his stay, and would not provide her with information about his treatment, care or progress because she was not his legal guardian. This occurred even though Jennifer was present at the hospital and requested that Cary be allowed to have such information and to visit with Richard.
The Appellants assert that all of these situations occurred despite the fact that Jennifer had executed a power of attorney permitting Cary to make medical decisions for the children in Jennifer's absence. The record contains a document entitled "Medical Power of Attorney," granting Cary the power to consent to health care decisions for Jennifer, when Jennifer is unable to do so for herself. In addition, the record includes a document entitled "Durable Power of Attorney," which names Cary as Jennifer's attorney-in-fact, and grants Cary full power over the (1) disposition of property, (2) collection of debts, (3) acquisition of property, (4) litigation, representation, and employment of assistance, (5) endorsing checks and depositing funds, (6) safe deposit boxes, (7) savings bonds, (8) borrowing money, (9) executing government vouchers, (10) tax returns, and (11) automobiles, trucks, and other personal property. It is unclear from the briefs and the record whether these two documents were presented by the Appellants to the medical institutions, or whether the Appellants had an additional power of attorney specifically authorizing Cary to make medical decisions for Richard and Devon in Jennifer's absence.
On August 14, 2008, the circuit court issued an Order denying the Appellants' petition. In that Order, the circuit court found that the Appellants could "accomplish their goals" through West Virginia Code § 44-10-1 (2000), which permits a biological parent to name, in their will, the person who is to be the guardian of their minor children in the event of their death. The court further found that appointing Cary as a guardian "is not necessary at this time," stating that "the appointment of a non-relative as guardian while the custodial biological parent is alive, able and willing to care for the children has great potential to cause unnecessary difficulties in the future for both the biological mother and the minor children named herein." The court then concluded that such appointment was not in the best interests of the children.
II. STANDARD OF REVIEW
On appeal, the Appellants argue that (1) the family court improperly transferred their petition for guardianship to the circuit court, and (2) the circuit court improperly interpreted the guardianship statute to require that certain factual circumstances exist as a prerequisite to appointing a guardian, specifically that the minor's biological parent or other legal guardian be unable or unwilling to properly care for the minor.
"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Indeed, this Court reviews de novo circuit court decisions involving "the interpretation and application of the guardianship statute, W. Va. Code § 44-10-3, to the facts of th[e] case." In re Abbigail Faye B., 222 W. Va. 466, 472, 665 S.E.2d 300, 306 (2008). Because the issues presented in this appeal both involve questions of law, the Court reviews the circuit court's Order de novo.
III. DISCUSSION A. Transfer of the Guardianship Petition
As an initial matter, the Appellants challenge the family court's transfer of their guardianship petition to the circuit court. In its "Order of Removal of Infant Guardianship Case to Circuit Court," the family court found, following a preliminary review, that the petition was based, in whole or in part, on allegations of abuse and neglect. Thus, pursuant to Rule 48a of the Rules of Practice and Procedure for Family Court, it transferred the petition to the Circuit Court of Fayette County.
The family court Order removing the guardianship petition to circuit court incorrectly cites "Rule 47a" of the Rules of Practice and Procedure for Family Court as its basis for removal, rather than Rule 48a(a). In fact, Rule 47(a) provides for the appointment of guardian ad litems in family court cases, while Rule 48a(a) establishes the basis for removing a guardianship petition to circuit court.
The statute under which the Appellants filed their guardianship petition, West Virginia Code § 44-10-3 (Supp. 2009) (effective June 14, 2006), indicates that a guardian may be appointed by either the family court or the circuit court in the county in which the minor resides. Rule 48a(a) of the Rules of Practice and Procedure for Family Court, however, limits the family court's authority by providing that:
[i]f a family court learns that the basis, in whole or part, of a petition for infant guardianship brought pursuant to W. Va. Code § 44-10-3, is an allegation of child abuse and neglect, as defined in W. Va. Code § 49-1-3, then the family court before whom the guardianship case is pending, shall remove the case to the circuit court for hearing. . . . At the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence.
In syllabus point seven of In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300, this Court explained that Rule 48a(a)
requires that if a family court presiding over a petition for infant guardianship brought pursuant to W. Va. Code § 44-10-3 learns that the basis for the petition, in whole or in part, is an allegation of child abuse and neglect as defined by W. Va. Code § 49-1-3, then the family court is required to remove the petition to circuit court for a hearing thereon.
The Court in Abbigail Faye B. further held that when addressing such petitions, a circuit court must conduct a hearing on the allegations of abuse and neglect and may only grant the guardianship petition if such allegations are supported by clear and convincing evidence. 222 W. Va. at 469, 665 S.E2d at 303.
In the instant case, the Appellants' petition raises the issue of the prior abuse by Richard and Devon's father as one of several grounds for the guardianship. Specifically, in the petition, the Appellants set forth information about Richard A., including his abuse of Richard and Devon and his subsequent convictions, and they explain that Richard A. no longer pays child support and that a protective order prevents him from contacting the children. The Appellants argue that because Richard A. is an unfit parent, the court is not required to notify him of the guardianship proceeding. Moreover, the Appellants use the prior abuse by Richard A. as a basis to support the petition, arguing that appointing Cary as the children's guardian would help prevent Richard A. from ever successfully re-asserting parental rights.
On appeal, the Appellants contend that these references to the prior abuse by Richard A. are not new allegations of abuse or neglect which must be proven by clear and convincing evidence as required by Rule 48a(a) and Abbigail Faye B. Thus, the Appellants argue that the family court was not required to transfer the petition to circuit court and erred in doing so.
At the hearing following the removal of the petition, the circuit court noted that the allegations of abuse and neglect contained within the petition were not alleged to be presently existing, nor were the children in any present danger of abuse or neglect. Thus, the court was not required to make a finding of abuse or neglect by clear and convincing evidence. Despite this acknowledgment, the circuit court did not address whether the family court's transfer of the petition to the circuit court constituted error, nor did it consider whether the case should be returned to the family court for further consideration. Importantly, the Appellants did not raise this issue with the circuit court either.
"In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." Syl. Pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971). Here, the issue is not jurisdictional in nature because West Virginia Code § 44-10-3 provides that either the family court or the circuit court in the county in which the minor resides may appoint a suitable person as a minor's guardian. Consequently, family and circuit courts have concurrent jurisdiction over appointing guardians under § 44-10-3 and, thus, the circuit court possessed jurisdiction to rule on the petition in this case. This Court, therefore, will not consider this issue which was not properly raised below.
B. The Guardianship Petition
The principle issue in the instant appeal is whether the circuit court erred in denying the Appellants' guardianship petition. Specifically, the Appellants contend that the circuit court improperly interpreted the infant guardianship statute to require, as a prerequisite to appointing Cary as the boys' guardian, that Jennifer be unable or unwilling to care for her children.
1. West Virginia Code § 44-10-3
The statute on which the Appellants base their petition for guardianship, West Virginia Code § 44-10-3, entitled "Appointment and revocation of guardian by county commission," vests family and circuit courts with the authority to appoint guardians for minors. The statute, however, does not describe the types of situations in which such appointments are appropriate. Rather, it simply provides that any guardian to be appointed must be a suitable person, and that courts must give precedence to the "best interests of the child" in making such appointment. Specifically, the statute provides that
Prior to 2004, West Virginia Code § 44-10-3 (Supp. 1999) authorized county commissions to appoint guardians for minors. Although the Legislature, in 2004, amended the statute to transfer that authority to family and circuit courts, it did not change the title of the statute.
[t]he circuit court or family court of the county in which the minor resides, or if the minor is a nonresident of the state, the county in which the minor has an estate, may appoint as the minor's guardian a suitable person. The father or mother shall receive priority. However, in every case, the competency and fitness of the proposed guardian and the welfare and best interests of the minor shall be given precedence by the court when appointing the guardian.
W. Va. Code § 44-10-3(a). Thus, the language of the statute itself does not address whether a guardian may be appointed for a minor as an addition to, rather than a replacement for, the minor's biological parent.
It is well-settled that "[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Where, however, a statute is silent as to a particular issue,
[i]t is the duty of a court to construe [the] statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.
Syl. Pt. 3, Powell v. Wood County Comm'n., 209 W. Va. 639, 550 S.E.2d 617 (2001) ( quoting Syl. Pt. 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925)). Thus, "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
Unfortunately, neither of this Court's two prior decisions interpreting this section of the code shed any light on the question presented in this case. The most recent of those two cases, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300, concerned a petition for guardianship filed by a minor's grandparents, who alleged that the child's mother was unfit. The circuit court was unable to find abuse or neglect by clear and convincing evidence, however, and denied the petition. Id. at 472, 665 S.E.2d at 306. This Court affirmed that decision on appeal. Id. at 481, 665 S.E.2d at 315. Thus, the questions considered in Abbigail Faye B. are unrelated to those at issue here.
In the second case interpreting this section of the code, In re The Custody of Woolfolk, 170 W. Va. 238, 293 S.E.2d 316 (1982), this Court confirmed the appointment of both a biological father and a non-relative as guardians of a minor, because each had been appointed for different, specific purposes. In Woolfolk, a minor child was hospitalized and in a coma following a car accident which had left his mother dead. Id. at 238, 293 S.E.2d at 316. Upon the mother's death, the minor became the beneficiary of her life insurance. Id. The minor's father, who was incarcerated at the time, was appointed a guardian of the minor for the sole, limited purpose of making medical decisions for the minor, while a non-relative of the minor was appointed as the guardian of his estate, which included the life insurance proceeds. Id. at 238-39, 293 S.E.2d at 316-17. This Court approved the two separate guardian appointments, noting the very different authority granted to each of the guardians. Id. at 239, 293 S.E.2d at 317.
While, at first blush, Woolfolk appears to support the Appellants' position that two individuals, including one biological parent and one non-relative, can simultaneously exercise guardianship authority over a minor, the factual differences with the instant case are clear and numerous. Most importantly, in Woolfolk, the biological father did not retain all of his rights and responsibilities of parenthood, as Jennifer seeks to do in this case. Indeed, the special circumstances of the case, including the father's incarceration and the mother's death, necessitated that a third party be appointed to handle the minor's estate. Consequently, Woolfolk offers little support for the Appellants' position.
2. The Standby Guardianship Act
The Appellants contend that because West Virginia Code § 44-10-3 and the cases interpreting it do not explicitly prohibit the appointment of a guardian in addition to a biological parent, the circuit court erred in interpreting the statute to proscribe such appointments. The Appellants, however, fail to consider the full scope of West Virginia's guardianship laws. It is well-settled that "[s]tatutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syl. Pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975); see also Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975) ("Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. . . ."). Here, another such statute exists which must be considered in this case.
The "Standby Guardianship Act," West Virginia Code §§ 44A-5-1 to 9 (1999), provides that, upon receipt of a petition, a circuit court may approve "a person as standby guardian for a child of a qualified parent upon the occurrence of a specific triggering event." Id. § 44A-5-3(a). Alternatively, a parent may execute a written document identifying a "standby guardian." Id. § 44A-5-5. A "standby guardian" is defined by the statute as
a person who, in accordance with this article, is designated in writing or approved by the circuit court to temporarily assume the duties of guardian of the person or property, or both, of a minor child, on behalf of or in conjunction with a qualified parent, upon the occurrence of a triggering event. A standby guardianship shall be so construed as to enable the parent to plan for the future of a child, without terminating parental or legal rights by creating coguardianship rights between a parent and a standby guardian who has the authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody and support of the minor child.
Id. § 44A-5-2(i) (emphasis added). A "qualified parent" is
a parent who has been diagnosed, as evidenced in writing, by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease or illness from which, to a reasonable degree of medical probability, the patient cannot recover and that is likely to lead to debilitation or incompetence.
Id. § 44A-5-2(h). A "triggering event" is an "event upon the occurrence of which the standby guardian may be authorized to act." Id. § 44A-5-2(j). The triggering event allowing the standby guardian to act must be specified in the court order, "and shall be the earlier of a determination of incompetence or the death of a qualified parent." Id. In addition, the triggering event "may also be specified as the qualified parent's written consent to the commencement of the standby guardian's authority." Id.
The Standby Guardianship Act, therefore, provides that a special circumstance permitting the "coguardianship" of a minor exists when the parent, defined as the biological or adoptive parent, or other person with custody of the minor, has a serious illness that will likely lead to incompetence or death. Id. §§ 44A-5-2(f) (h). In such a circumstance, the parent can legally share his or her parental rights and obligations with a non-parent, without having his or her own parental rights terminated.
The "coguardianship" arrangement provided for in the Standby Guardianship Act is precisely the arrangement that the Appellants seek to achieve with their guardianship petition. The Appellants are barred, however, from obtaining coguardianship under this Act because Jennifer does not meet the definition of a "qualified parent." Indeed, as found by the circuit court, Jennifer is a healthy, capable parent and, thankfully, there is no known reason to expect that she will not be able to continue to ably care for her children.
To achieve the outcome sought by the Appellants in the instant case, this Court would have to ignore the Standby Guardianship Act, which clearly limits the appointment of a "coguardian" for a minor to specific circumstances in which the biological parent is unable to continue caring for the minor. Because "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature," Smith, 159 W. Va. 108, 219 S.E.2d 361, Syl. Pt. 1, in part, and because the legislative intent behind the Standby Guardianship Act is clear, this Court is not at liberty to expand the scope of West Virginia Code § 44-10-3 to allow coguardianship arrangements which would not be permitted under the Standby Guardianship Act.
The circumstances under which the Legislature enacted the "Standby Guardianship Act" further indicate that neither the Legislature nor this Court have previously contemplated "coguardianship" as an option under West Virginia Code § 44-10-3, the statute under which Cary and Jennifer are seeking such arrangement. In June 1998, shortly before the passage of the Standby Guardianship Act, this Court issued an opinion in In re Micah Alyn R., 202 W. Va. 400, 504 S.E.2d 635 (1998). In that case, the circuit court had terminated an HIV positive mother's parental rights because her illness was preventing her from properly caring for her child, who was also HIV positive and required significant medical attention. Id. at 403-04, 504 S.E.2d at 638-39. The case originated when the mother, Ida R., voluntarily placed her child, Micah R., in foster care. Id. at 403, 504 S.E.2d at 638. Ida R. continued to visit her son, and eventually sought to regain full custody of him. Id. After several hearings which indicated that Ida R. had neglected Micah at times and that she tired easily, got dizzy, and needed lots of sleep, the circuit court terminated her rights in order to allow Micah R.'s foster family to adopt him. Id. at 404, 504 S.E.2d at 639.
On appeal, this Court reversed the termination order and remanded, holding that
when a parent is unable to properly care for a child due to the parent's terminal illness, so that conditions which would constitute neglect of the child occur and continue to be threatened, termination of parental rights, without consent, is contrary to the public policy, even though there is no reasonable likelihood that the conditions of neglect will be substantially corrected in the future.
Id. at 408, 504 S.E.2d at 643. In so doing, the Court examined the difficult position in which parents with terminal illnesses find themselves, concluding that West Virginia's guardianship laws in effect at that time provided little assistance to such parents. The Court explained that,
[u]nfortunately, traditional guardianship law presents only two choices. In order to formally grant another person parental authority while the parent is still living, the parent must relinquish his or her own authority. Testamentary guardianship, the second option, only becomes effective upon the parent's death.
Id. at 641, 504 S.E.2d at 406. It then pointed out that several other states had addressed this dilemma through standby guardianship statutes, which "allow parents who are at a substantial risk of becoming ill or disabled within a limited period of time to select a `standby guardian' to take care of their children at the point when they become too ill or disabled to care for them." Id. Approximately six months after the decision in Micah Alyn R. issued, the Legislature enacted West Virginia's Standby Guardianship Act.
Although the Appellants did not address the Standby Guardianship Act in their brief, they do rely on West Virginia Code § 49-2-17 (2000), a statute providing for the distribution of state funds to facilitate adoptions or appointments of legal guardians. The Appellants point out that § 49-2-17 states that "[a] legal guardianship subsidy shall not require the surrender or termination of parental rights." While state subsidies are not at issue in the instant case, the Appellants contend that this language indicates that circumstances can exist in which it is not necessary to terminate a biological parent's rights, or for the parent to be deceased, in order to appoint a legal guardian. Importantly, however, the language contained in § 49-2-17 indicating that parental rights need not be terminated in order to obtain financial assistance for the appointment of a guardian was added to this section of the Code in 2000. Given its timing, the amendment appears to reflect the change in the law resulting from the passage of the Standby Guardianship Act, which was codified in 1999.
Given the clear legislative intent underlying the Standby Guardianship Act, and because "[s]tatutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments," Smith, 159 W. Va. 108, 219 S.E.2d 361, Syl. Pt. 3, it is clear that the type of guardianship appointment sought by the Appellants in this case is not available under West Virginia Code § 44-10-3. Accordingly, this Court now holds that, under West Virginia Code § 44-10-3 (Supp. 2009), family and circuit courts may not appoint a guardian for a minor when the minor's biological or adoptive parent(s), or other legally appointed guardian, is capable of properly caring for the minor and desires to continue to exercise his or her parental or legal rights and responsibilities, absent a finding of abuse or neglect by clear and convincing evidence. West Virginia Code § 44-10-3 may not be used to appoint a "co-guardian," who shares such parental or legal rights and responsibilities, as such appointments are governed by the Standby Guardianship Act, West Virginia Code §§ 44A-5-1 to 9 (1999).
Accordingly, the circuit court's Order of August 14, 2008, denying the Appellants' petition, is affirmed.
3. Alternative Use of a Power of Attorney
Although the circuit court properly denied the Appellants' petition for guardianship, the Appellants have expressed legitimate concerns regarding Cary's ability to make decisions for the boys in emergency situations. The facts in this case clearly demonstrate that because Jennifer often travels for work, while Cary stays at home, Cary is frequently the parent who first responds to medical and other emergencies in the family. The children's best interests, therefore, would be served by granting Cary authority to make medical and other decisions in emergency situations.
While West Virginia's guardianship laws do not permit the Appellants to achieve their goals through a guardianship arrangement, the Appellants can address many of their concerns by other means. First, as the circuit court noted, under West Virginia Code § 44-10-1, entitled "Testamentary Guardians," Jennifer may name Cary in her will as the individual to become the guardian of the children in the event of Jennifer's death. In addition, by executing a proper power of attorney and by utilizing a recently enacted law in West Virginia, known as the "Caregivers Consent Act," the Appellants can ensure that Cary has the authority necessary to properly care for the boys in Jennifer's absence.
On appeal, the Appellants argue that they had, in fact, executed a power of attorney authorizing Cary to make healthcare decisions for the boys in Jennifer's absence, but that several medical providers have refused to honor the power of attorney, thus preventing Cary from making such decisions or obtaining medical information about the children. As noted previously, the record on appeal includes two power of attorney documents. Neither of these documents, however, specifically permit Cary to make decisions for the children. Rather, the Appellants have executed a medical power of attorney which designates Cary to make medical decisions for Jennifer, in the event of Jennifer's incapacity, and a Durable Power of Attorney, which specifically grants Cary authority to make a variety of economic and property decisions. The record does not contain a power of attorney specifically granting Cary authority to make decisions for the children.
A "power of attorney" is "an instrument granting someone authority to act as agent or attorney-in-fact for the grantor. An ordinary power of attorney is revocable and automatically terminates upon death or incapacity of the principal." Blacks Law Dictionary 1290 (9th ed. 2009). Although no West Virginia statute specifically provides for an "ordinary" power of attorney by which a parent may grant authority over the care of their children to another adult, the authority to grant such powers exists at common law. While this Court has never directly addressed the legal basis for such powers of attorney, it has recognized on several occasions that such authority may be granted. See, e.g., In re Destiny Asia H., 211 W. Va. 481, 566 S.E.2d 618 (2002) (acknowledging a power of attorney executed by a parent who left her child temporarily with a friend, which authorized the friend "to act in loco parentis"); Baugh v. Merritt, 200 W. Va. 393, 395, 489 S.E.2d 775, 777 (1997) (remanding the case to the lower court for a determination of the parties' intent in executing a document entitled "Special Power of Attorney and Voluntary Appointment of Guardian"); Efaw v. Efaw, 184 W. Va. 355, 357, 400 S.E.2d 599, 601 (1990) (considering, as part of a determination of who had been the children's primary caretaker, a power of attorney authorizing the children's grandparents to make medical and other decisions for the children).
Although the record is unclear as to whether the Appellants had executed this type of power of attorney, to prevent any future confusion, the Court now clarifies that, at common law, a parent or legal guardian may transfer medical, educational, and other legal decision-making authority for his or her child or ward, to another adult through the execution of a power of attorney. Such instruments are revocable and automatically terminate upon disability or incapacity of the principal.
Moreover, a recently enacted law provides an additional avenue by which Jennifer may authorize Cary to make medical decisions for the boys. In the 2010 Legislative Session, the West Virginia Legislature passed the "Caregivers Consent Act," West Virginia Code § 49-11-1 to 10 (2010) (effective ninety days from March 8, 2010). This Act permits a "caregiver," who is an adult over the age of eighteen and is a relative by blood, adoption or marriage to a minor, or who has resided with a minor continuously during the immediately preceding six month period, to consent to health care and treatment on behalf of the minor, if the caregiver possesses an adequate affidavit. Id. §§ 49-11-2 3. Such affidavit must provide the caregiver's name, address, birth date, and relationship with the minor, as well as the minor's name, birth date, and length of time residing with the caregiver. Id. § 49-11-5. In addition, the affidavit must be signed by the caregiver under oath, and by the minor's parent or guardian, consenting to the caregiver's authority. Id. The parent or guardian's signature is not necessary, however, if they are unavailable despite the caregiver's attempts to locate them and seek their permission. Id. The affidavit is valid for one year, or until the minor no longer resides with the caregiver, which ever is less. Id. § 49-1 1-6(b). In addition, a parent or guardian may rescind the affidavit by writing at any time. Id. § 49-1 1-6(a).
Accordingly, pursuant to the Caregiver's Consent Act, an adult over the age of eighteen who is not legally related to a minor, but who has resided continuously with the minor for the immediately preceding six month period, may consent to health care and treatment on behalf of the minor, so long as that adult possesses an adequate affidavit, as set forth in that Act. Because Cary has resided continuously with the boys for well over the most recent six-month period, it appears that, under the Caregivers Consent Act, the Appellants may execute an affidavit permitting Cary to consent to health care and treatment for the boys. See id. §§ 49-11-2 3. The execution of such affidavit, combined with a power of attorney and the testamentary designation of Cary as the children's guardian in the event of Jennifer's death, should allow the Appellants to substantially achieve the practical objectives that they had hoped to achieve through a guardianship appointment.
IV. CONCLUSION
For the reasons stated herein, the Court affirms the final Order of the Circuit Court of Fayette County, West Virginia, entered on August 14, 2008, denying the Appellants' petition for guardianship.
Affirmed.