Opinion
No. 20-0037
06-08-2021
IN RE Grandparent VISITATION OF L.M., A.M., E.M., J.M., B.M., and S.M.
Todd A. Kirby, Esq., D. Allan Martin, Esq., Kirby & Ashley, L.C., Beckley, West Virginia, Counsel for Petitioner. Jefferson L. Triplett, Esq., George R. Triplett, Esq., Triplett & Triplett L.C., Elkins, West Virginia, Counsel for Respondents. Julia R. Callaghan, Esq., Callaghan & Callaghan, PLLC, Summersville, West Virginia, Guardian ad Litem for the Children.
Todd A. Kirby, Esq., D. Allan Martin, Esq., Kirby & Ashley, L.C., Beckley, West Virginia, Counsel for Petitioner.
Jefferson L. Triplett, Esq., George R. Triplett, Esq., Triplett & Triplett L.C., Elkins, West Virginia, Counsel for Respondents.
Julia R. Callaghan, Esq., Callaghan & Callaghan, PLLC, Summersville, West Virginia, Guardian ad Litem for the Children.
Armstead, Justice: V.Y. ("Petitioner"), the mother of the children at issue, appeals the Circuit Court of Nicholas County's order affirming the family court's order which crafted a reunification plan with the goal of allowing grandparent visitation to C.M. and D.M. ("Respondents"), the paternal grandparents of L.M., A.M., E.M., J.M., B.M., and S.M. (collectively, "the children").
As this case is concerned with minor children, we will follow our long-standing practice of identifying the parties by their initials. See, e.g. , State v. Edward Charles L. , 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
By Administrative Order of this Court entered on October 2, 2019, the request for voluntary recusal by the Honorable Stephen O. Callaghan, Judge of the Twenty-Eight Judicial Circuit, was granted and the Honorable Richard A. Facemire, Judge of the Fourteenth Judicial Circuit, was assigned to the Nicholas County Circuit Court to preside over this matter.
Upon review of the record, hearing the arguments of counsel, and research of the pertinent legal authorities, we conclude that Petitioner did not meet her burden to demonstrate error and we therefore affirm the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and L.C.M. were married and the children were born of their marriage. Sometime in late 2017 or early 2018, they separated and their final divorce decree was entered on June 29, 2018. As a result of that divorce, Petitioner was granted full custody of the children and L.C.M. was granted supervised visitation. By request of Petitioner, visitation was supervised by L.C.M.’s parents, the Respondents.
During the visitation exchange on September 21, 2018, Petitioner's father, the children's maternal grandfather, delivered the children to a parking lot in Craigsville, West Virginia. L.C.M., along with his father, Respondent C.M., came at the appointed time to exchange the children. During that exchange, and in the presence of all the children, the maternal grandfather drew a handgun and shot L.C.M. L.C.M. died of his wounds at the scene. Thereafter, the children witnessed their maternal grandfather turn the gun on himself and commit suicide.
In the following weeks, there were two funerals. Petitioner did not allow the children to attend either the service for the maternal grandfather or the service for L.C.M. On October 5, 2018, one day prior to L.C.M.’s memorial service, Respondents filed their petition for grandparent visitation in family court and sought an ex parte order requiring the children to attend L.C.M.’s memorial service. The family court denied the ex parte relief, appointed a guardian ad litem for the children, and scheduled a hearing on the visitation petition for November 27, 2018. Due to a scheduling conflict, the matter was rescheduled for January 14, 2019.
Prior to that hearing date, the guardian ad litem met with the children, the children's therapists, Respondents, and Petitioner. On January 9, 2019, the guardian ad litem filed a comprehensive report recommending that Respondents be granted visitation with the children. As the family court noted, "when the [guardian ad litem] filed her comprehensive report, all of the [children's] counselors were in agreement as to the recommendation for the commencement of contact between [Respondents] and some of the minor children in a therapeutic setting."
On the same day, Brandon S. Steele, Esquire, filed a notice of appearance and a motion to continue in the family court on behalf of Petitioner. Because Mr. Steele was a member of the West Virginia Legislature, pursuant to the provisions of West Virginia Code § 4-1-17 (2005), he could not be compelled to appear prior to the conclusion of the legislative session. Thereafter, the family court rescheduled this matter for a pretrial hearing on May 6, 2019, and a final hearing for May 15, 2019. Mr. Steele does not appear as counsel before this Court.
The guardian ad litem's report and her June 14, 2019 update were incorporated by reference into the family court's final order.
The hearing in this matter took place over a ten-hour period on May 15, 2019, during which the family court heard from thirteen witnesses, including the parties and the children's therapists. The next day, the family court discovered that its recording system failed to memorialize the hearing. Thereafter, the family court sent a letter to all parties explaining the situation and informing the parties "that its ability to make findings of fact, conclusions of law and render a decision in this matter [was] not impacted." A telephonic hearing was held on May 29, 2019, to discuss the lack of an appealable record and the parties agreed to submit proposed findings of fact and conclusions of law. The family court directed the guardian ad litem to submit in writing "updated findings/recommendations to her prior report, consistent with her in-court testimony."
On July 8, 2019, the family court entered a substantial, highly detailed, and well-reasoned thirty-nine page order establishing a reunification therapy plan requiring a reunification therapist to recommend to the family court whether to grant grandparent visitation to Respondents. In that order, the family court applied the thirteen factors enumerated in West Virginia Code § 48-10-502 (2001) regarding grandparent visitation, found that Petitioner "is a fit parent, as defined by applicable law," and gave special weight to Petitioner's preference that no visitation be had between Respondents and the children. On the latter issue, the family court acknowledged the applicable law requiring it to afford special weight to Petitioner's preference regarding visitation stating in its orders, "[t]he [c]ourt is required to give [the twelfth] factor ‘special weight.’ The [c]ourt believes that it has given this factor special weight in rendering a decision." The family court proceeded to find that "[e]ven giving the twelfth factor ‘special weight,’ the [c]ourt finds by a preponderance of the evidence that the totality of the thirteen (13) factors weigh[s] in favor of a grant of reasonable grandparent visitation." Importantly, the family court also found that grandparent visitation was in the best interest of the children and that it would not substantially interfere with the parent-child relationship.
This thirty-nine page order contains one hundred and forty-four numbered findings of fact, followed by nineteen numbered conclusions of law. Many of these findings and conclusions include multiple subparagraphs. This Court appreciates and acknowledges the family court's efforts in thoroughly analyzing the facts and law in this and its subsequent order.
"[T]he Legislature has gone to great lengths to enumerate the factors listed in W. Va. Code § 48–10–502. These factors should be clearly addressed in any family court order granting grandparent visitation rights." Turley v. Keesee , 218 W. Va. 231, 234, 624 S.E.2d 578, 581 (2005).
As a part of its findings in its July 8, 2019 order, the family court established a visitation schedule that detailed the responsibilities of the parties. In that schedule, the family court required joint therapy sessions between Respondents and the children, and required Petitioner to participate in therapy sessions with the children. The family court further adopted a graduated schedule starting with supervised visits with the children which would progress into unsupervised overnight visits and visitation during the children's Christmas vacation from school, culminating in a full week of visitation during summer recess from school. Importantly, the family court twice included specific provisions allowing for immediate review of its order:
The first two joint sessions were to be with L.M. only. B.M. and S.M. were to be added for the third session, while J.M. and E.M. were included in the fourth. Provisions were made to add A.M. to the sessions when counselors "determine[ed] the pace at which A.M. will be included."
The two provisions differ in only minor respects. The substance of the two admonitions is exactly the same. We quote the first here.
If, any time after the first therapeutic family session, [Petitioner] has a good faith belief that any of the children are adversely and/or negatively affected by the visit to the point that it is detrimental to their well-being, counsel for [Petitioner] may file
a [m]otion detailing the same and the [c]ourt will schedule a prompt telephonic hearing. If a [m]otion is filed, all further therapeutic family sessions will be delayed pending a hearing.
The July 8, 2019 order also included a clear statement addressing the failure of the family court's recording system by granting all parties the right to seek reconsideration of its order. Specifically, the family court stated:
Due to the lack of an appealable record, the [c]ourt will grant a hearing to any party upon the filing of a proper motion for reconsideration, for the purpose of making a record and presenting any testimony or evidence presented at the hearing on May 15, 2019.
(emphasis added).
After the family court ruled, Petitioner filed objections and moved for reconsideration. The family court heard testimony on the motion for reconsideration on August 26, 2019. However, instead of making a record of the evidence missing from the May 15, 2019 hearing transcript, Petitioner offered the testimony of the children's therapists, Mary Lilly (counselor for A.M. and E.M.), Brittany Henderson (counselor for J.M.), and Stephani Trent (counselor for L.M.) to explain why they no longer recommended grandparent visitation. In its September 19, 2019 order from this seven-hour hearing, the family court observed that in contrast to the initial report from the guardian ad litem, "after hearing further testimony from all of the counselors .. all three ... clearly recommend against visitation at this time." In that order, the family court granted, in part, the motion for reconsideration. This seven-page order made certain changes to the findings contained in the July 8, 2019 order. Particularly, the September 19, 2019 order made significant changes to the previously established visitation schedule. Instead of establishing grandparent visitation with a regimented schedule, this order required the Respondents and the children to undergo reunification counseling and that future visitation with L.M., J.M., B.M. and S.M. "shall be carried out in accordance with the recommendations of the reunification therapist." The family court further stated, "the Court will defer to the discretion and recommendation of the reunification therapist as to if and when and [sic] joint therapy sessions with the minor children and [Respondents] are proper. The [family court] will schedule review hearings to monitor the minor children's progress." The family court also excluded A.M. and E.M. from the reunification therapy, allowing for future hearings on the question of visitation between those children and Respondents. Therefore, in modifying its July 8, 2019 order, the family court changed course and no longer ordered immediate grandparent visitation but established a therapeutic process, which could possibly lead to grandparent visitation if recommended by the reunification therapist. These two orders, taken together, constituted a roadmap by which eventual grandparent visitation could be achieved. They also allowed Petitioner the opportunity to request a halt of the reunification process by filing a good faith motion.
Petitioner appealed the decision of the family court to the circuit court, which affirmed, stating:
The [f]amily [c]ourt conducted a meticulous analysis of the thirteen (13) statutory factors to consider before granting grandparent visitation, as set forth in [West Virginia] Code § 48-10-502. The [f]amily [c]ourt did give special weight and consideration to [Petitioner's] preference that grandparent visitation not occur. However, in considering that factor, the [f]amily [c]ourt is not obligated to ignore all of the other factors present, and should consider the totality of the circumstances. The [f]amily [c]ourt found that there were eight (8) factors in favor of the visitation. Furthermore, the [f]amily [c]ourt took great pains to establish a counseling schedule for the children to facilitate the reunification visits with [Respondents]. The [f]amily [c]ourt made special provisions to accommodate the different needs of each individual child, and the [f]amily [c]ourt set out a process for the [f]amily [c]ourt and the [g]uardian ad [l]item to continue to monitor the progress of the children and the visits. The [c]ourt finds that the [f]amily
[c]ourt did not err and did not abuse its discretion in its application of the law to the unique facts and circumstances of this case.
It is from the entry of the circuit court's December 19, 2019 order affirming the family court that Petitioner appeals.
II. STANDARD OF REVIEW
Review of family court decisions are governed by the following:
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Along with this standard comes the fundamental principle that Petitioner must point this Court to an error in the record to entitle her to relief. Rule 7(d) of the West Virginia Rules of Appellate Procedure requires that "petitioner shall prepare and file an appendix containing ... [t]he judgment or order appealed from, and all other orders applicable to the assignments of error on appeal," "[m]aterial excerpts from official transcripts of testimony or from papers in connection with a motion ," and "[o]ther parts of the record to which the parties wish to direct the Court's attention. " W. V. R. App. P. 7(d) (emphasis added).
This requirement is expounded upon in Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure which requires that "[t]he argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal." Under this Rule, "[t]he Court may disregard errors that are not adequately supported by specific references to the record on appeal." As we have previously held,
An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.
Syllabus Point 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). Further, we "will not consider an error which is not properly preserved in the record nor apparent on the face of the record." Syllabus Point 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997).
In this case, Petitioner's citations to the record overwhelmingly consist of citations to orders and pleadings filed below. As noted above, there was no record of the May 15, 2019 family court hearing. However, the family court gave the parties the opportunity to request another hearing "for the purpose of making a record and presenting any testimony or evidence presented at the hearing on May 15, 2019." No party took the family court up on that extraordinary offer. Petitioner did ask for and receive a hearing on August 26, 2019, on her motion for reconsideration. However, the only testimony offered by Petitioner at that hearing and available for this Court to review consists of testimony from the children's therapists. Even after adducing this testimony, Petitioner does not cite to or quote any portion of their testimony in her brief. Instead, she places substantial reliance upon the family court's orders despite having some record evidence to which she could point.
Thus, Petitioner neither created a reviewable record for appellate review when the family court gave her the opportunity to do so nor did she point to any evidence adduced at the August 26, 2019 hearing in her filings with this Court. In fact, none of the testimony offered on August 26, 2019, provided any helpful insight into the relevant statutory factors. As noted throughout this opinion, that dearth of testimony makes it impossible for this court to find error and is fatal to Petitioner's appeal. Nevertheless, given the gravity of the factual matters and to afford consideration of petitioner's arguments which are not affected by the absence of a reviewable record, we will proceed to address petitioner's assignments of error as asserted. III. ANALYSIS
This matter contains some of the most heart-wrenching facts imaginable. Six innocent children witnessed their father and grandfather die in a most terrifying manner. At that moment, not only did the children lose their father but Respondents lost a son. With this devastating background, the family court was tasked with the difficult duty of weighing the interests of the children who have endured tremendous emotional hardship, their Petitioner mother who has strived to help them move forward from this trauma, and the Respondent grandparents who lost their son and all contact with the children.
As the family court found Petitioner to be a fit parent, we acknowledge that the United States Supreme Court has recognized that the rearing of children is of constitutional importance and that the preference of a fit parent regarding grandparent visitation must be given significant weight. See Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). " ‘The Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth Amendment of the Constitution of the United States protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ Syl[labus] [Point] 3, Lindsie D.L. v. Richard W.S. , 214 W. Va. 750, 591 S.E.2d 308 (2003)." Syllabus Point 2, Meagan S. v. Terry S. , 242 W. Va. 452, 836 S.E.2d 419 (2019).
In discussing the rationale of Troxel, this Court has observed that the Supreme Court "instructs that a judicial determination regarding whether grandparent visitation rights are appropriate may not be premised solely on the best interests of the child analysis." [ Visitation of] Cathy L.[(R.)]M. v. Mark Brent R., 217 W. Va. 319, 327–28, 617 S.E.2d 866, 874–75 (2005). Rather, the evaluating court "must also consider and give significant weight to the parents’ preference, thus precluding a court from intervening in a fit parent's decision making on a best interests basis." Id.
In re Visitation of A.P. , 231 W. Va. 38, 42, 743 S.E.2d 346, 350 (2013).
At common law, "grandparents possessed no legal right to custody or visitation of a grandchild over the parent's objection." Petition of Nearhoof, 178 W. Va. 359, 361, 359 S.E.2d 587, 589 (1987) (cleaned up). Thus, our Legislature has created a framework for grandparents to seek visitation. "The Grandparent Visitation Act, W. Va. Code § 48–10–101 et seq. , is the exclusive means through which a grandparent may seek visitation with a grandchild." Syllabus Point 1, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013). Under this Act, a "grant [of] reasonable visitation to a grandparent" shall be made when two elements are satisfied: 1) "upon a finding that visitation would be in the best interests of the child and [2)] would not substantially interfere with the parent-child relationship." W. Va. Code § 48-10-501 (2006). "[I]f a preponderance of the evidence shows that visitation is in the best interest of the child," grandparent visitation "shall be granted." W. Va. Code § 48-10-702(a) (2001).
To weigh a petition for grandparent visitation, our Legislature adopted thirteen factors for courts to consider. See W. Va. Code § 48-10-502. These thirteen factors are:
(1) The age of the child;
(2) The relationship between the child and the grandparent;
(3) The relationship between each of the child's parents or the person with whom the child is residing and the grandparent;
(4) The time which has elapsed since the child last had contact with the grandparent;
(5) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
(6) If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child;
(7) The time available to the child and his or her parents, giving consideration to such matters as each parent's employment schedule, the child's schedule for home, school and community activities, and the child's and parents’ holiday and vacation schedule;
(8) The good faith of the grandparent in filing the motion or petition;
(9) Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent;
(10) Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child's parent or parents;
(11) Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent's residence;
(12) The preference of the parents with regard to the requested visitation; and
(13) Any other factor relevant to the best interests of the child.
Id.
This Court has held that those provisions contemplate the special weight that is constitutionally afforded a fit parent's wishes in its twelfth factor. See State ex rel. Brandon L. v. Moats , 209 W. Va. 752, 763, 551 S.E.2d 674, 685 (2001). We are mindful that:
In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.
In re Visitation of A.P. , 231 W. Va. at 42, 743 S.E.2d at 350 (citation omitted). Although we have never attached mathematical certainty to a fit parent's parental preference, we have noted that "in light of the Troxel decision it is clear that the court must accord at least some special weight to the parent's own determination provided that the parent has not been shown to be unfit." Id. (internal quotation omitted).
In this case, Petitioner first maintains that the family court and circuit court infringed on her constitutional right to rear her children by not properly applying "special weight" to her preference. We have previously ruled our Grandparent Visitation Act is constitutional. See , Syllabus Point 3, Brandon L. ("The West Virginia Grandparent Visitation Act, West Virginia Code §§ 48–2B–1 to –12 (1998) (Repl. Vol. 1999) [recodified in West Virginia Code §§ 48-10-101 to 48-10-1201 in 2001], by its terms, does not violate the substantive due process right of liberty extended to a parent in connection with his/her right to exercise care, custody, and control over his/her child[ren] without undue interference from the state."). However, that holding does not necessarily preclude us from finding the application of the statute unconstitutional as applied to the facts of a particular case. See Troxel, 530 U.S. at 75, 120 S.Ct. 2054 (Washington statute unconstitutional as applied). Thus, even though this Court has found the statute facially constitutional, it must still be applied in a constitutional manner to comply with Troxel's mandate.
To find such application constitutionally sound, three aspects of Troxel must be met. First, a parent's "fundamental liberty interest" in the rearing of their children must be recognized because fit parents are presumed to act in the best interests of their children. Id., 530 U.S. at 65, 120 S.Ct. 2054. Second, given a parent's liberty interest in childrearing, the state will "normally" have no reason to question parental decisions. Id., 530 U.S. at 68, 120 S.Ct. 2054. Troxel emphasized that its ruling did not rest on a fit parent's "normal" right to be free of state intervention in parenting decisions, but instead rested on a "combination of ... factors." Id. 530 U.S. at 68, 71, 120 S.Ct. 2054. Third, the United States Supreme Court established that a fit parent's preference regarding grandparent visitation must be afforded the "special weight" we discussed above. Id., 530 U.S. at 70, 120 S.Ct. 2054. The trial court in Troxel failed to give "at least some special weight" to the mother's "determination of her daughters’ best interests." Id., 530 U.S. at 69, 120 S.Ct. 2054. This "special-weight" prerequisite is codified as factor twelve of our Grandparent Visitation Act. As explained more fully below, the family court did place significant weight upon Petitioner's preference and determined that this factor weighs against grandparent visitation.
Petitioner's second argument is that the lower tribunals improperly applied the thirteen factors contained in West Virginia Code § 48-10-502. Specifically, Petitioner takes issue with the family court's findings as to factors one, two, four, seven, nine, ten, eleven, twelve, and thirteen. Respondents and the guardian ad litem respond that the lower court gave special weight to Petitioner's preference and that the thirteen factors were properly balanced. We reiterate, however, that this case has an inadequate record and the parties chose to forego the opportunity afforded them by the family court to supplement the record in light of the absence of a recording of the May 15, 2019 hearing. With rare exception, nearly all of Petitioner's citations to the "record" are citations to the family court's orders themselves. For this reason, we are disinclined to disturb the findings of the factfinder, particularly with regard to its credibility findings. We will now examine each of the thirteen factors, in turn.
A. The Uncontested Factors
The parties agree with the family court's rulings on factors three, five, six, and eight. As there is no disagreement as to these factors, we will only briefly discuss them here.
1) Factor Three – The Relationship Between Petitioner and Respondents
Prior to the shooting there was a good relationship between Petitioner and Respondents. Nonetheless, because of the clear animus between Petitioner and Respondents duly noted in the family court's order, the family court determined this factor weighed against visitation.
2) Factor Five – Effect On Relationship Between Petitioner and The Children
The family court weighed this factor against visitation mainly based upon the concern that the animus among the parties would infect the relationship between Petitioner and the children.
3) Factor Six – Custody and Visitation Between Divorced Parents
The family court found this factor to be neutral based upon the fact that L.C.M. is deceased.
4) Factor Eight – Respondents’ Good Faith In Filing Visitation Petition
There was no dispute regarding the fact that the grandparent visitation petition was filed in good faith.
B. The Contested Factors
As for the remaining factors, Petitioner challenges the family court's rulings, pointing this Court to the family court's orders in support of her arguments. We cannot say that the family court erred if Petitioner does not point us to evidence that refutes the findings made by the family court. Petitioner's failure to create a more comprehensive record when offered the chance to do so, coupled with the lack of citation to evidence, leads us to conclude that the family court did not err. Bearing that in mind, we now examine the remaining factors, noting where Petitioner did not provide evidentiary support for meaningful review.
1) Factor One – The Children's Age
On September 21, 2018, the children were the following ages: L.M., ten years old, A.M., nine years old, E.M., eight years old, J.M., seven years old, B.M., three years old, and S.M., one year old.
This date is significant in that it is the date that the shootings took place and is the last date that Respondents saw the children. The instant petition was filed a mere fourteen days later.
The family court found that this factor weighed "more heavily in favor of the four" oldest children having visitation with Respondents but "it is important that the younger siblings [B.M. and S.M.] be included in any visitation involving their siblings." Petitioner argues that because the children are of an age that they should be allowed to express their own preferences, the family court erred by not giving any consideration to their preferences, and that the age of the two youngest children militates against visitation. Thus, Petitioner contends, this factor should be weighed against visitation. In support of this argument, Petitioner cites only to two exhibits in the record that are not orders or pleadings. Neither of these exhibits demonstrate the family court erred. Thus, we cannot conclude that the family court was wrong in weighing this factor in favor of visitation.
These two exhibits are: 1) A Treatment Summary for L.M. dated May 8, 2019, and attached as Exhibit 1 to the guardian ad litem's disclosure of documents and 2) A Treatment Summary for J.M. dated November 28, 2018, and attached as Exhibit 10, to the guardian ad litem's report. Both documents were attached to pleadings below.
2) Factor Two – The Relationship Between The Children and Respondents
The family court found this factor to weigh in favor of visitation. Similar to the first factor, the older children had a more substantial relationship with Respondents than the younger children. L.M. lived with Respondents on two occasions and most of the children lived with them at least once. Respondents served as babysitters for all the children numerous times over the better part of a decade.
The July 8, 2019 family court order indicates that L.M. lived with Respondents for approximately two years after he was born in 2007. Specifically, when the other children resided with Respondents is unclear due to a lack of an appealable record from the May 15, 2019 hearing. However, the family court specifically found that L.M. "lived in [Respondents’] home on two (2) occasions" and that "most of the children lived with them on at least one occasion." Petitioner could have clarified this issue during the August 26, 2019 hearing, but did not.
Petitioner argues that although Respondents babysat the children, such babysitting was sporadic. Petitioner further argues that "the lack of communication" between Respondents and the children since this litigation ensued weighs against visitation. Thus, Petitioner urges, it was error to weigh this factor in favor of visitation.
In support of this argument, Petitioner again points to no evidence to support her position. Every citation to the record relating to this point is to orders or pleadings. It would have been a simple task to call a witness at the August 26, 2019 hearing to create a record regarding the relationship between the children and Respondents. Yet, Petitioner chose to focus solely upon the testimony of the children's therapists at that hearing and does not point us to anything specifically within that testimony to support Petitioner's position. The findings and conclusions of the family court were not effectively challenged by Petitioner.
Thus, we cannot say that the family court was incorrect in weighing this factor in favor of visitation. The family court found that Respondents’ relationship with the children was shown to include periods of co-habitation and serving as primary babysitters and Petitioner did not point to record evidence to refute those findings.
3) Factor Four – Time From Contact Between The Children and Respondents
There has been no contact between the children and Respondents since September 21, 2018. Respondents filed their visitation petition only fourteen days later. Included with the visitation petition was an ex parte request for the children to attend L.C.M.’s memorial service, which was denied by the family court. Essentially, the family court found that delays caused by the process should not be attributable to any action or inaction by Respondents and weighed this factor in favor of visitation. Petitioner argues that there has been a significant period since Respondents last saw the children and that this factor weights against visitation.
In the matter of Michael C. v. Teressa D. , No. 13-1077, 2014 WL 4930191 (W. Va. Oct. 2, 2014) (memorandum decision), the adoptive parents of the grandchildren caused the matter to remain in litigation for much longer than necessary. See id. at *5. Additionally, the circuit court failed to timely enter orders. See id. Ultimately, this Court found that delays that were caused by a party or the court were not attributable to the grandparents when considering this factor. See id. Although there is no evidence here that any party was intentionally delaying the family court proceeding or that the family court was slow to rule, we agree with the principle set forth in Michael C. that ongoing litigation which "contributed to the lack of ... grandparent visitation," Id. , should not be attributed to Respondents. Thus, the family court correctly allocated this factor in favor of visitation.
4) Factor Seven – Time Available to The Children and Petitioner
The family court found the time available to the children and Petitioner to be neutral but found such availability should be considered in fashioning visitation. Petitioner argues that this factor should have weighed against visitation as there are many activities, both school and extracurricular, that were not properly considered by the family court. Petitioner also urges that the amount of notice needed for work schedules and the distance and time associated with potential visitation should have tilted this factor against visitation.
Again, Petitioner points to nothing in the record to support this argument. Neither letters between counsel nor the orders and pleadings filed below constitute evidence to refute the family court's findings. Petitioner could have offered testimony on this subject at the August 26, 2019 hearing but did not. Thus, we cannot conclude that the family court erred in finding this factor as neutral.
5) Factor Nine – Abuse by Respondents
There were no substantiated reports of Respondents performing, procuring, assisting, or condoning any abuse or neglect on the children found by the family court. There were allegations that Respondents and L.C.M. were "mean" to the children. However, during L.M.’s first meeting with the guardian ad litem he made unsolicited statements to the guardian ad litem that the other children were going to fabricate abuse allegations. The other children did thereafter allege that they had been abused by Respondents.
Petitioner argues that there were allegations of abuse by Respondents and that Respondents "unfairly attempt[ed] to villainize" Petitioner which were both overlooked by the family court. Thus, Petitioner contends this factor weighs against visitation.
What Petitioner is essentially arguing is that the family court improperly weighed the credibility of the witnesses before it. Again, to refute this finding, Petitioner had the opportunity to offer testimony to establish any such abuse at the August 26, 2019 hearing. Instead, Petitioner merely cites to the family court's order. Such argument is insufficient to establish error since the family court was the trier of fact and had to weigh the credibility of the allegations made by the children with the statement of L.M. See State v. Guthrie , 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) ("An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact."). Thus, we cannot conclude that the family court erred as to this factor.
6) Factor Ten – The Children Residing With Respondents
It was found by the family court that L.M. lived with Respondents on two occasions and most of the remaining children lived with Respondents on at least one occasion. Petitioner essentially argues that the times were itinerant and that the younger two children did not spend as much time residing with Respondents as the older children. Petitioner contends that the finding by the family court that this factor weighs in favor of visitation was erroneous and that it actually weighs against visitation.
Once again, Petitioner only directs us to orders and pleadings to support this argument. As in our discussion above, Petitioner could easily have offered evidence at the August 26, 2019 hearing to establish precisely when the children did or did not reside with Respondents. Petitioner's argument requires specificity, but none is offered. Based upon that, we cannot say that the family court erred in weighing this factor in favor of visitation.
7) Factor Eleven – Respondents as Significant Caretaker
The family court found Respondents provided care for the children whenever needed, with two small windows of time as exceptions, and the children lived with Respondents as noted in the factor ten analysis. Thus, the family court found this factor to weigh in favor of visitation. Petitioner argues that occasional babysitting does not rise to the level of a significant caretaker but offers no evidence to refute the family court's findings.
Because Petitioner again only cites to the findings of the family court and points to no specific testimony to refute the family court, we believe the family court correctly allocated this factor in favor of visitation. The family court found that Respondents regularly babysat the children for the better part of a decade, that the children lived with Respondents for varying periods of time, and that after Petitioner and L.C.M. divorced, Respondents were supported by Petitioner as the party to supervise the children's visitation with L.C.M. Petitioner cites nothing to refute these findings.
8) Factor Twelve – Petitioner's Preference
As discussed above, this factor must be given special weight and we believe that the family court afforded such weight. First, we note that Petitioner stated early on in the proceedings that she was not against visitation. She clearly communicated to the guardian ad litem that she believed the children should have visitation with Respondents when they are ready and she allowed a letter from Respondents to be read to the children during a therapy session. She also purchased cell phones for the older children and programmed Respondents’ phone numbers into them to allow the children to contact Respondents whenever they wanted. In fact, while L.C.M. was still living, Petitioner had no problems with allowing Respondents to babysit the children and she insisted Respondents supervise L.C.M.’s visitation with the children.
We commend Petitioner on her efforts to protect the children considering the tragedy that they witnessed. In the face of extreme adversity, her efforts demonstrated unmatched love and compassion for the children. Following the shooting, she immediately enrolled them in therapy sessions and has strongly advocated for them throughout the process. Our affirmance of the lower tribunals should not in any way negatively reflect upon Petitioner.
Later in the proceeding, Petitioner changed her position and clearly espoused that she wanted Respondents to have no visitation with the children. Based upon this change in position, the family court placed significant weight upon Petitioner's change of mind and found that this factor weighed against visitation. The parties agree that this factor weighs against visitation. However, Petitioner vehemently argues that the family court did not accord this factor the "special weight" it requires.
It is clear to us that the family court did attach the special weight required by Troxel to Petitioner's preference but, nonetheless, ultimately found in favor of Respondents. As we have said:
A fundamental principle, properly gleaned from the scholarly writings and legal opinions reviewed by this Court, is that the pronouncements of Troxel do not predispose every case to an ultimate determination favoring the natural parent in a complete and conclusive manner. An assessment of the specific circumstances of each case is still required, and while the reviewing court must accord special weight to the preferences of the parent, the best interests of the child are not to be ignored and must be included as a critical component of the dialogue regarding visitation or custody.
In re K.H. , 235 W. Va. 254, 265, 773 S.E.2d 20, 31 (2015) (internal footnote omitted).
Thus, we believe the family court did properly place significant weight upon this factor. In its order, it stated that "[t]he [c]ourt believes it has given this factor special weight in rendering a decision" and "[e]ven giving the twelfth factor ‘special weight,’ the [c]ourt finds by a preponderance of the evidence that the totality of the thirteen (13) factors weigh in favor of a grant of reasonable grandparent visitation."
Further, in its September 19, 2019 order, the family court modified the original visitation schedule established in its July 8, 2019 order. As a result of Petitioner's concerns, instead of a graduated visitation schedule as originally crafted, the family court adopted reunification therapy as the keystone to allowing future visitation. Additionally, the family court afforded the reunification therapist great deference in making determinations regarding the progress of reunification. These changes clearly demonstrate that the family court accorded special weight to Petitioner's preference as required under Troxel by not ordering unfettered grandparent visitation but requiring a reunification therapist to determine if such visitation could be effectively accomplished.
9) Factor Thirteen – Other Relevant Factors In Best Interest of The Children
The family court found this factor to weigh in favor of visitation. This finding stems from the family court's concern that Petitioner would never encourage the children to have visitation with Respondents. Further, given the acrimonious relationship between Petitioner and Respondents, the family court doubted the children would ever feel safe in expressing a desire for visitation. Thus, the family court found that in the best interest of the children, this factor weighed in favor of visitation.
Petitioner essentially contends that these findings tread into Troxel territory and that, because Petitioner does not want visitation, she is under no obligation to encourage the children to engage in it. However, this factor is for the family court to weigh information through the prism of what is in the best interest of the children and Petitioner points to nothing but the family court's orders for her position. Given that, we cannot say that the family court erred, and we concur that this factor weighs in favor of visitation.
C. Testimony of The Children's Therapists – August 26, 2019
Finally, we address Petitioner's argument regarding the testimony of the children's therapists that the children do not want to visit with Respondents and that it was their opinion that grandparent visitation was not in the children's best interest. We agree with Petitioner that this testimony was relevant. However, as noted above, Petitioner did not point to the actual testimony gleaned from the therapists at the August 26, 2019 hearing but instead directed us to the findings in the family court's orders. Further, Petitioner has not pointed us to where in the Legislative framework the testimony of the therapists should be weighed.
It is clear that the family court gave serious and thoughtful consideration to the therapists’ opinions. In fact, the family court used the therapists’ testimony as a basis to modify the visitation plan from a regimented schedule to one in which the determination of when, if ever, visitation would occur hinged upon the recommendation of the reunification therapist. In its September 19, 2019 order, the family court required Respondents and the children to undergo reunification counseling. The requested grandparent visitation would only commence "in accordance with the recommendations of the reunification therapist." The family court deferred to the expertise of the reunification therapist as to when joint therapy would commence and notified the parties of its intent to conduct review hearings to monitor progress. Finally, the order excluded A.M. and E.M. from the sessions, deferring any decision regarding visitation between them and Respondents for another time. We believe the family court gave careful consideration to the concerns of the children's therapists and responded to those concerns to ensure the children would not be subjected to grandparent visitation until recommended by the reunification therapist.
Thus, the family court found, and we agree, that factors one, two, four, eight, nine, ten, eleven, and thirteen weigh in favor of a grant of grandparent visitation. The sixth and seventh factors were neutral. Factors three, five, and twelve weigh against a grant of grandparent visitation. Therefore, the family court found eight factors were in favor of visitation, two were neutral, and three were against, including the twelfth, which it gave special weight. We have previously "emphasize[d] that the objection of a parent would not serve to defeat a grandparent's attempt to seek visitation in every instance." Visitation of Cathy L.(R.)M. v. Mark Brent R. , 217 W. Va. 319, 328, 617 S.E.2d 866, 875 (2005) (footnote omitted). This case represents one of those instances where weighing the thirteen factors tipped the balance in favor of a reunification plan that could ultimately lead to visitation. We believe Petitioner's failure to cite to record evidence in support of her position leads us to only one logical conclusion – that she failed to meet her burden of showing the judgment below was erroneous. The family court's order affords Petitioner's preference against visitation special weight in accordance with the holding in Troxel . Moreover, the family court's September 19, 2019 order does not immediately grant grandparent visitation but instead requires reunification therapy, gives great deference to the reunification therapist to determine the course of reunification, allows for an immediate hearing if there is any negative impact on the children, and provides for review hearings to monitor the children's progress. Therefore, we cannot conclude that the family court erred.
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court's December 19, 2019 order affirming the family court's establishment of reunification therapy as a means to provide for future grandparent visitation.
Affirmed.
JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.
CHIEF JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.
JUSTICE HUTCHISON dissents and reserves the right to file a dissenting opinion.
WOOTON, J., concurring:
I concur with the majority's determination that petitioner mother failed to establish that the family court below abused its discretion in ordering a therapeutic reunification schedule aimed at establishing visitation with respondent grandparents and the children. There is no question that this case presents heart-wrenching facts which are set against the backdrop of adults who are at odds, but all of whom who love and desire to protect and maintain meaningful relationships with these children. As a result, the family court was faced with the unenviable task of adhering to its statutory obligations under the Grandparent Visitation Act, West Virginia Code §§ 48-10-101 to - 1201 (2001), while navigating the intensely emotional positions of the parties. In that regard, I write separately to respond to the dissenting justices’ unfounded accusation that the family court—and the majority—has cruelly relegated these children to mandatory grandparent visitation in contravention of all applicable law and without regard to their best interests.
What must first be disabused, however, is the contention that the family court has ordered, and the majority sanctioned, "forced visitation" with respondents. In its initial thirty-nine-page order, the family court painstakingly walked through the evidence presented, undertook the required statutory considerations and made findings, and then laid out a scrupulously designed reunification process potentially culminating in a counselor-supervised contact schedule and ultimately, a phased visitation schedule. The order required respondents to jointly undergo three counseling sessions with a licensed counselor specifically addressing appropriate conversations with the children and their proper role as grandparents relative to decision-making authority. Petitioner was likewise required to participate in a counseling session with the eldest children; concomitantly, the children's counselor (in the presence of the guardian ad litem) was to begin to "prepare the children for reunification with their paternal grandparents in a therapeutic setting" with specific assurances to the children that the process was not tantamount to "custody." After this required counseling, the reunification plan called for supervised contact "in a therapeutic, family counseling setting" on a weekly basis; each child was to "phase-in" to the sessions based on age. The involvement of the youngest, A. M., was deferred entirely to the discretion and judgment of the counselors and guardian ad litem.
Upon scheduling of a fifth family counseling session, the family court intended to schedule a review hearing to "consider the propriety of progressing visitation outside a therapeutic setting," with the caveat that "[a]s recommended by the GAL, contact should proceed as quickly or as slowly as the children and their counselors feel comfortable with." (Emphasis added). The court anticipated "multiple" review hearings over the course of several months. Only after completion of this process, "[w]hen it is determined by the Court that unsupervised visitation is appropriate," a phased visitation schedule was to be implemented. As caveat to all of the foregoing, the family court twice in its order stated that "if, any time, the [petitioner] has a good faith belief that any of the children are adversely and/or negatively affected by the visit to the point that it is detrimental to their well-being," the process would immediately cease and a hearing held. Notably, at the time this order was entered, all of the therapists were in favor of visitation.
However, after entry of the initial order, the family court heard additional testimony from three therapists who then no longer recommended visitation and, as a result, dramatically scaled back the already tentative reunification plan. In lieu of scheduled joint therapy sessions, the court substituted separate family counseling sessions for respondents and the children, stating that it would "defer to the appointed reunification therapist's recommendation as to the proper frequency of these visits." As to whether joint therapy would ensue at all, the court stated it would "defer to the discretion and recommendation of the reunification therapist as to if and when [ ] joint therapy sessions with the minor children and the [respondents] are proper." The court maintained its intention to conduct periodic review hearings but unequivocally withdrew any order of visitation and stated that any such future visitation "shall be carried out in accordance with the recommendations of the reunification therapist." Notably, the family court further specifically excluded the two youngest children from this process and ordered that their visitation with respondents would be addressed "at future hearings."
These vacillating opinions alone demonstrate the difficulty presented by this case. The divided vote of this Court reflects similarly. Therefore, to characterize the outcome of this case as being callously indifferent to the best interests of the children and patently wrong demonstrates an unforgiving assessment of the complexity of this case.
See, e.g. , In re L.M. , 235 W. Va. 436, 445, 774 S.E.2d 517, 526 (2015) ("[I]n all cases involving children, the polar star is the best interests of the child."); State ex rel. Jeanne U. v. Canady , 210 W. Va. 88, 97, 554 S.E.2d 121, 130 (2001) ("[T]he best interests of the child is the polar star by which all matters affecting children must be guided." (citations and footnote omitted)); Michael K.T. v. Tina L.T. , 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) ("[T]he best interests of the child is the polar star by which decisions must be made which affect children." (citation omitted)). See also Syl. pt. 3, Brooke B. v. Ray , 230 W. Va. 355, 738 S.E.2d 21 (2013) (" ‘Cases involving children must be decided not just in the context of competing sets of adults’ rights, but also with a regard for the rights of the child(ren).’ Syllabus Point 7, In re Brian D. , 194 W. Va. 623, 461 S.E.2d 129 (1995)."); Syl. pt. 3, in part, In re Katie S. , 198 W. Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal ... in all family law matters ... must be the health and welfare of the children.").
Three of the children, A.M., E.M., and J.M., reported to their therapists that the paternal grandparents were "mean" and "whipped them." Also, prior to the shootings, A.M. alleged that his father hit him. None of the allegations were substantiated. The oldest child, L.M., told a counselor that his siblings were making up the allegations and that anything that occurred was a form of discipline, not physical or emotional abuse.
Despite this meticulous, thorough, and thoughtful reunification plan by the family court, at least one dissent purports to be "astounded" by the majority's "inexcusable" affirmance of the plan. The dissenting justices accuse the courts below and the majority of ignoring the opinions of 1) the children's therapists; 2) the children themselves; and 3) petitioner, an otherwise fit parent—all in direct contravention of statutory law and United States Supreme Court precedent. However, nothing could be further from the truth. In fact, it is the dissenting opinions which afford these three pieces of evidence improper weight and in so doing sends a confounding message regarding our statutory guidance and caselaw.
First, the dissenting justices accuse the majority of ignoring the opinions of the children's therapists that visitation was not in the children's best interests. As a threshold matter, the majority correctly observes that "expert opinions" are nowhere contained within the statutory factors to be considered by the court as set forth in West Virginia Code § 48-10-502. To therefore give the therapists’ opinions seemingly dispositive weight, as do the dissents, is completely outside of the statutory construct. Further, none of these therapists were court-ordered experts; rather, they were privately retained healthcare providers who commendably and properly advocated for what their professional judgment suggested was the most cautious course for their clients. However, to suggest that the court must necessarily comply with the consensus of privately retained mental health professionals would be a complete abdication of a court's role in these matters and render the statutory factors irrelevant. Were such opinions entitled to extraordinary weight, the Legislature would have, at a minimum, included expert opinions as a specifically delineated factor under West Virginia Code § 48-10-502. Were their opinions dispositive, as the dissents suggest, the Act would undoubtedly direct a family court to make a referral and await the therapist's verdict on whether visitation should occur.
By no means do I suggest, however, that these professionals were "hired guns." Rather, as the family court determined based upon testimony elicited from the therapists, they were obligated to advocate for their clients, unconstrained by required statutory considerations which go well beyond the subjective wishes of minor children and reflect the Legislature's attempted balance of competing rights and interests.
After these proceedings began, the grandparents began writing letters to the children, which they gave to the guardian ad litem who then sent them to the children's therapists. With the mother's consent, the first letter from both grandparents was shared with the children. However, the grandfather's letter, which arrived next, was not read to the children, nor were any of the letters and cards that followed.
More importantly, however, the dissenting justices’ position that the therapists’ testimony was disregarded is utterly meritless. It is precisely because of the therapists’ wavering testimony that the family court amended its initial reunification process with settled visitation increments, in lieu of a deferential reunification process, as laid out in detail supra. The order on appeal places the decision of "if and when " the children and respondents engage in joint therapy entirely to the reunification therapist. (Emphasis added). Most significantly, it defers the ultimate issue of visitation almost entirely to the judgment of the reunification professional, ordering that visitation "shall be carried out in accordance with the recommendations of the reunification therapist. " (Emphasis added). In so doing, after considering the weight of the statutory factors which clearly favored visitation, the family court did exactly as the dissents insist: deferred the logistical handling of whether and how visitation is to ensue squarely within the seasoned judgment and supervision of an expert, the court-appointed reunification counselor.
Next, the dissenting justices grossly oversimplify the weight to be given to the wishes of the children and a fit parent, one dissent suggesting their unified preference must prevail and stating that "ultimately the fit parent must be permitted to make good faith decisions regarding her children." If this were the law, there would be no need for grandparent visitation litigation at all. When grandparent visitation litigation ensues, there is already a conflict between a parent and the grandparents, by definition. The children, depending on their ages, likely have a position on visitation aligning with one party or the other. Under the dissenting justices’ approach, whichever party the children favor is the victor. Here, because petitioner and the children were against visitation, one of the dissents concludes their preferences were necessarily ignored—a conclusion that ignores the fact that the statutory factors the family court was required to consider overwhelmingly weighed in favor of visitation. According to the dissenting justices, should the party with whom the children side hire an expert who advocates for their position, the matter is definitively closed. None of this comports with the statutory requirements or the law on parental preference.
Primarily, however, the dissenting opinions simply misunderstand the role the statutory factors contained in West Virginia Code § 48-10-502 serve in determining the best interests of the child. Both dissenting opinions cavalierly and summarily declare the majority to be apathetic to the children's best interests on the one hand, yet on the other hand, entirely disregard the statutory factors which are expressly designed to inform the determination of their best interests. The statutory factors are not merely a punch list serving as window dressing for a court order which ultimately rules in favor of whatever a parent and children want. Rather, the factors endeavor to provide objective information—based on prior relationships, course of conduct, and the behaviors and abilities of the parties—which creates a sliding scale designed to measure the benefit of grandparent visitation to a child's best interests. Should these factors demonstrate by a "preponderance of the evidence" that visitation is in the best interest of the child, the court is obligated by law to grant it. See W. Va. Code § 48-10-702 (2001).
A litigated grandparent visitation case comes prefabricated with conflict. The statutory factors so casually disregarded by the dissents aim to remove the blurring effect of the parties’ complex relationships and interests; they seek to guide consideration of a child's best interests relative to a continued relationship with his or her grandparents. Nothing in our statutory scheme permits a court to disregard these factors altogether and make a determination based upon the greater weight of the parties’ biased preferences, all under the auspices of the predominating "best interests." Rather, the factors are to be utilized to create a fuller understanding of the parties’ historical relationships and present abilities, free from the bias of the litigants, with the ultimate goal of an impartial arbiter determining what is likely in a child's short-term, long-term, and large-scale "best interests."
In the same breath that the dissenting justices accuse the majority of giving the statutory factors too much weight, they afford them exactly none. In accusing the majority of giving a fit parent's preference no weight, the dissents lend it dispositive weight. In vilifying the family court and the grandparents for presumptuously deciding they "knew better" what was in the children's interests, the dissents do precisely the same. It is exactly this type of case for which our standard of review was designed, allowing the lower courts with first-hand observations and interactions with the affected parties to make carefully discerned determinations and create remedies which best serve complex familial relationships, all in compliance with applicable law. The dissents do nothing more than denigrate the undeniable care with which the family court handled this most delicate matter and seek to substitute their own "better" judgment in a case they view strictly on a cold record, from arms-length.
Accordingly, I concur in the majority's affirmance of the family and circuit courts’ orders.
Jenkins, Chief Justice, dissenting:
The best interests of the child standard, the preeminent determinative factor in the resolution of cases involving children,1 applies with equal force to matters concerning a request for grandparent visitation. See, e.g. , W. Va. Code § 48-10-101 (eff. 2006) ("The Legislature finds that circumstances arise where it is appropriate for circuit courts or family courts of this state to order that grandparents of minor children may exercise visitation with their grandchildren. The Legislature further finds that in such situations , as in all situations involving children, the best interests of the child or children are the paramount consideration. " (emphasis added)); Syl. pt. 2, In re Hunter H. , 231 W. Va. 118, 744 S.E.2d 228 (2013) ("The best interests of the child are expressly incorporated into the Grandparent Visitation Act in W. Va. Code §§ 48-10-101, 48-10-501, and 48-10-502 [2001]."); State ex rel. Brandon L. v. Moats , 209 W. Va. 752, 763, 551 S.E.2d 674, 685 (2001) (observing that grandparent visitation statutes "inclu[de] ... a burden of proof standard requiring grandparent(s) seeking visitation to prove by a preponderance of the evidence that the requested visitation ‘is in the best interest of the child’ " (citing W. Va. Code §§ 48-2B-7(a, c))); Mary Jean H. v. Pamela Kay R. , 198 W. Va. 690, 693, 482 S.E.2d 675, 678 (1996) (per curiam) ("The best interests of the child must be given greatest priority, and the rights of the child are superior to those of the grandparent seeking visitation."); Syl. pt. 1, Petition of Nearhoof , 178 W. Va. 359, 359 S.E.2d 587 (1987) ("A trial court, in considering a petition of a grandparent for visitation rights with a grandchild or grandchildren pursuant to W. Va. Code , 48-2-15(b)(1) [1986] or W. Va. Code , 48-2B-1 [1980], shall give paramount consideration to the best interests of the grandchild or grandchildren involved."). See also State ex rel. Jeanne U. v. Canady , 210 W. Va. 88, 97 n.10, 554 S.E.2d 121, 130 n.10 (2001) (recognizing that "the [‘polar star’] concept is ... applicable to matters in which visitation with children is being adjudicated").
Unfortunately, in its resolution of the case sub judice and despite its repeated acknowledgement of this requisite finding, the majority fails to meaningfully consider whether the lower courts’ award of grandparent visitation satisfies the best interests of the six children with whom visitation is sought. For this reason, I respectfully dissent.
In its opinion, the majority quotes West Virginia Code section 48-10-501 (eff. 2006), the statute that establishes the "[n]ecessary findings for [a] grant of reasonable visitation to a grandparent." Specifically, section 48-10-501 requires that "[t]he circuit court or family court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship." (Emphasis added). The majority similarly references West Virginia Code section 48-10-702(a) (eff. 2001), which also makes the best interests of the child an essential statutory criterion that must be satisfied before grandparent visitation may be awarded. See id. ("If a petition is filed pursuant to section 10-402 when the parent through whom the grandparent is related to the grandchild does not: (1) Have custody of the child; (2) share custody of the child; or (3) exercise visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child. " (emphasis added)).
The majority additionally cites the statutory factors that a court is required to consider when ruling on a grandparent visitation request, which include, as the final element, a determination of whether an award of grandparent visitation is in the best interests of the child with whom visitation is sought. Pursuant to West Virginia Code section 48-10-502 (eff. 2001), the "[f]actors to be considered in making a determination as to a grant of visitation to a grandparent" require a court to conduct a thirteen-factor analysis, which expressly includes a consideration of the subject child's best interests:
In making a determination on a motion or petition [for grandparent visitation] the court shall consider the following factors:
....
(13) Any other factor relevant to the best interests of the child.
Finally, the majority quotes In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (2015), which further acknowledges that a consideration of a child's best interests is an integral part of a determination of whether grandparent visitation should be awarded in a particular case. The passage quoted by the majority reads:
A fundamental principle, properly gleaned from the scholarly writings and legal opinions reviewed by this Court, is that the pronouncements of Troxel [v. Granville , 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000),] do not predispose every case to an ultimate determination favoring the natural parent in a complete and conclusive manner. An assessment of the specific circumstances of each case is still required, and while the reviewing court must accord special weight to the preferences of the parent, the best interests of the child are not to be ignored and must be included as a critical component of the dialogue regarding visitation or custody.
Id. , 235 W. Va. at 265, 773 S.E.2d at 31 (footnote omitted; emphasis added).
Yet despite these reiterations of the need for a consideration of the children's best interests, the majority's opinion fails to conduct such an analysis but for its brief discussion of the final factor of the thirteen-factor test set forth in West Virginia Code section 48-10-502(13), which requires a court to evaluate "[a]ny other factor relevant to the best interests of the child." Despite this strict directive, the majority's analysis of this factor is rather stark and succinctly finds that consideration of this factor weighs in favor of visitation because, as the lower courts speculated, the acrimonious relationship between the children's mother and their grandparents suggests that, if the court does not order grandparent visitation to occur, the mother's wishes will prevent the facilitation of this relationship either because she will discourage visitation or because the children will not feel safe expressing their desire to visit with their grandparents in light of the atmosphere of hostility between their mother and their grandparents.
Words cannot describe the unspeakable tragedy that these children witnessed and that ultimately has culminated in the instant grandparent visitation proceeding. Though children often are resilient, they also need time to process feelings they may not, given their tender ages, always be able to understand and clearly communicate. As Justice Hutchison aptly noted in his dissenting opinion, the children's therapists have recognized the children's continuing struggle to cope with these events and question whether they are ready to visit with their grandparents at this point in time because, in their professional opinions, the children need more time to heal. Moreover, it is essential to note that all of these therapists have withdrawn from their treatment of the children as a result of their concerns as to whether court-ordered grandparent visitation is consistent with the children's best interests. The reunification therapist also had trepidation in following the lower courts’ orders to facilitate grandparent visitation at the time of his evaluation of the parties, and, as represented by the parties during oral argument, he, too, has withdrawn from the case because of his ethical dilemma in following the courts’ orders when he questioned whether such directives best served the children. Yet none of these therapists’ concerns or resignations are mentioned, much less discussed, in the majority's opinion in this case.
In spite of these indicia of the children's best interests, and the indisputable command that a best interests analysis is an integral part of a grandparent visitation analysis, the majority has failed to recognize either the significance of the children's circumstances in this case or its obligation to follow the mandate of the statutory and common law governing grandparent visitation proceedings. See, e.g. , W. Va. Code § 48-10-101 ; Syl. pt. 2, Hunter H. , 231 W. Va. 118, 744 S.E.2d 228. Although the majority's opinion repeatedly acknowledges the need for a determination of the children's best interests, it fails to include such an analysis despite its lengthy discussion of every other statutory factor. Instead, the majority gives short shrift to factor thirteen—the only best interests factor. By briefly considering the children's best interests, the primary focus of this factor's analysis is not on the paramount consideration of the decision that best serves the children but, rather, on the competing sets of adults’ rights at issue herein—the mother's right to parent her children versus the grandparents’ right to have a continuing relationship with their grandchildren. Because the majority has failed to meaningfully consider the children's best interests in this case, when they were expressly required to do so, I respectfully dissent.
HUTCHISON, Justice, dissenting:
What disturbs me the most about this case—and the reason I dissent to the majority's decision—is that both the children's wishes and the recommendations of their therapists have been completely disregarded. At the final hearing in this matter, held on August 26, 2019, Mary Lilly, therapist for A.M. and E.M.; Brittany Henderson, therapist for J.M.; and Stephanie Trent, therapist for L.M. testified that the children did not desire to have visitation with their grandparents. According to the family court's final order, Ms. Lilly testified that there was no relationship between A.M. and E.M. and the grandparents and that court-ordered visitations would have a strong negative impact on A.M.’s relationship with his mother and a moderately negative impact on E.M.’s relationship with her mother. Ms. Lilly reported that progress had been made with the children during their counseling sessions, but court-ordered visitation would likely cause regression. Similarly, Ms. Henderson testified that court-ordered visitation would be harmful to J.M.’s mental and emotional health. She explained that J.M. has nightmares and separation anxiety that would likely increase with court-ordered visitation. Finally, Ms. Trent testified that L.M. disclosed during his last session with her that he was not receptive to visits with his grandparents at that time. Ms. Trent further testified that forced visitation could potentially cause L.M. to suffer depression.
All three therapists opined that forced visitation with the grandparents was not in the children's best interests. They also expressed concern that the grandparents might try to inform the children of what they believed "really happened to their Father." The therapists’ concern was based on a letter written by the grandfather to the children early in the proceedings in this case. That letter read as follows:
Hi kids I won't waste my time asking you to call, I know mom won't let you. [A.M.] and [J.M.] I don't know why you made up stories about your Father and Grandma and I.1 I am sure you are being coached. [L.M.] I know you tell the truth and I think E.M. does. I know you loved your Father. He was executed in cold blood, I saw it. And I believe you know the truth. I may never get to see you kids. But remember I love you just like I love your Father, Uncle John and Aunt Kate.
Love Grandpa
(Footnote and emphasis added). As the family court acknowledged in its order, the grandparents believe that the children's mother "in some way encouraged the death of their son." However, no evidence was ever presented to the court to support that belief.
The grandfather's letter was intercepted by the therapists and was never read to the children.2 As the therapists explained in their treatment notes, reading statements to the children that their father was "executed in cold blood" and that they were being "coached" would be detrimental to their well-being and mental status. Other treatment notes of the therapists in the record indicate that one of the children expressed a desire to "blow up" the county where the shootings occurred and to "knife his grandparents." Consequently, at the final hearing, the therapists expressed ethical and safety concerns should the court allow the grandparent visitation to occur. The therapists were so adamant that visitation was not in the children's best interests that they advised the court that they might elect to withdraw from the case should the grandparents’ petition be granted.
At the time of the father's death, all the parties resided in the same county. Immediately thereafter, the mother and the children moved to another county to avoid the media and because of the mother's fear for her own safety.
Given this evidence, I simply do not understand how any court could conclude that it is in these children's best interests to have visitation with their grandparents. Yet, not only did the family court reach that conclusion, it further found that the visitation would not substantially interfere with the parent-child relationship. Remarkably, the family court made this finding while at the same time noting that "[t]his Judge has never experienced the level of tension as between the parties in this case."
None of this evidence was considered in the majority opinion. Inexplicably, the majority summarily concluded that "the family court gave serious and thoughtful consideration to the therapists’ opinions." 859 S.E.2d at 285. However, the family court's order belies that conclusion. In its September 19, 2019 order, the family court made the following finding:
After considering the testimony of the children's counselors, it is evident to the Court that the counselors are advocates for their respective clients. Counselors may be subject to certain ethical constraints that could prevent him/her from making recommendations
that are inconsistent with a client's wishes and/or desires. Consequently, recommendations by a counselor may not always align with what is in a particular child's best interest.
I am completely astounded by the decision to disregard this kind of expert testimony, which is routinely relied upon by courts. As a matter of course, the testimony of counselors and therapists is critical in cases involving minor children. They interview the children; they provide treatment; and they are in an excellent position to make a recommendation regarding what is in their patients’ best interests. To suggest that these highly trained professionals are incapable of making recommendations consistent with the children's best interests is absurd. Of course, therapists advocate for their patients, but they do so based on their psychological assessments—not as a defense attorney would if his client were to demand a particular course of action. Furthermore, therapists are required to make and regularly do make assessments and render opinions in court that do not always agree with the desires of their patients or others. For the majority to not recognize the refusal of the family court to consider the therapists’ opinions as clear error is inexcusable.
The same is true with respect to the complete disregard of the children's preferences. The family court found that the children were too young to state a preference. However, the Grandparent Visitation Act expressly provides for the consideration of the children's wishes and concerns. West Virginia Code § 48-10-601 (2001) plainly authorizes "the court, in its discretion, [to] interview in chambers any or all involved children regarding their wishes and concerns." While the family court obviously did not exercise its discretion to conduct such an interview, the children's wishes were made known to the court through their therapists’ testimonies and should not have been ignored.
W. Va. Code §§ 48-10-101 -to 48-10-1201.
In this instance, the children's preferences were critically important because of the circumstances that led to the filing of the petition for grandparent visitation. These children witnessed an unspeakable tragedy. Not only were they forced to come to terms with their father's death and the manner in which he died that they witnessed, they suddenly found themselves the subject of a tug of war between their grandparents and their mother. Believing they knew what was best, the grandparents began this tug of war within days of the horror witnessed by the children by trying to force them to attend their father's funeral against their mother's wishes. Indeed, at this early stage of the proceedings, the grandparents were trying to force contact and demanding that these obviously traumatized children be displayed in public without considering how they would react and without giving their fit mother time to assess their needs and determine what would be best for them. To disregard the children's preferences under these circumstances further amplifies the tragedy they have suffered.
In addition to considering the best interests of the children, our precedent demands that a fit parent's preference with respect to grandparent visitation be afforded special weight and consideration. As this Court has explained:
The family court made a finding that the children's mother is a fit parent.
The mandates of Troxel [v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000),] require that the wishes of the petitioner, as a fit parent presumed capable of rational choices concerning the relationships to be enjoyed by her child, be accorded special weight. As the Supreme Court stated in Troxel, there is a "presumption that fit parents act in the best interests of their children." 530 U.S. at 69 [.]
In re Visitation of A.P. , 231 W. Va. 38, 43-44, 743 S.E.2d 346, 351-52 (2013). It is generally recognized that " ‘special weight’ indicates considerable deference." Id. at 42 n.7, 743 S.E.2d at 350 n.7. While the family court purportedly gave special weight to the mother's preference, the final order is devoid of any substantive explanation as to why the mother's interest in making decisions regarding her children is outweighed by a continuing relationship with the grandparents. It is obvious that no deference was given to the mother's wishes. Rather, the mother's belief that visitation with the grandparents was not in the children's best interests was simply dismissed based on the family court's perception that she was "attempting to poison the children's relationship with the grandparents." There was, however, absolutely no evidence that the mother was improperly influencing the children. Instead, the evidence was that the mother's belief that visitation was not appropriate at that time was based on the therapists’ opinions that any interaction between the children and the grandparents would not be in their best interests.
Notably, the mother is a medical doctor and is trained to treat post-traumatic stress disorder.
Based on all the above, I believe that the petitioner mother more than satisfied her burden of showing that the decision of the family court affording the respondent grandparents visitation with her children is erroneous. Like the family court, the majority has merely looked at the factors set forth in West Virginia Code § 48-10-502 (2001) and concluded that those factors weigh in favor of visitation. While the statutory factors must be considered, the analysis does not end there. West Virginia Code § 48-10-501 (2006) mandates that the necessary findings for a grant of visitation to a grandparent are "that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship." Despite overwhelming evidence provided by the children's therapists that precluded these necessary findings, the family court determined that it knew better and ordered grandparent visitation to commence with the assistance of a reunification counselor. Without any analysis of the best interests of the children, the majority has now upheld that decision because the mother "did not point to the actual testimony gleaned from the therapists at the August 26, 2019 hearing but instead directed us to the findings in the family court's orders." 859 S.E.2d at 285. To elevate form over substance when the psychological welfare of children is at stake is not in the best interests of anyone.
See Meagan S. v. Terry S. , 242 W. Va. 452, 456, 836 S.E.2d 419, 423 (2019) (finding failure to make specific findings of fact regarding grandparent visitations factors was clear error).
The majority's decision in this case is contrary to the evidence in the record and contrary to the law. While I understand the desire to allow grandparents to maintain contact with their grandchildren and be a part of their lives, the health and the welfare of the children must come first. "The best interests of the child[ren] must be given greatest priority, and the rights of the child[ren] are superior to those of the grandparent[s] seeking visitation." Mary Jean H. v. Pamela Kay R. , 198 W. Va. 690, 693, 482 S.E.2d 675, 678 (1996).
During oral argument in this case, the parties indicated that the first attempt of the reunification counselor to facilitate visitation had failed. It is my hope that the majority's decision will not cause these children to be subjected to yet another failed effort at forced reunification. Based on the record before this Court, the children are not presently prepared to engage in yet more counseling with their grandparents. They need time on their own to heal and to decide when they are ready to see their grandparents again. Unfortunately, because of the majority's decision, the family court, the circuit court, this Court, and worst of all the children have not seen the last of the proceedings in this matter. Even though there has already been a failure of the proposed reunification, I foresee continued demands for additional attempts. The courts and the parties will, in my opinion, be locked in conflict for the foreseeable future because the majority has failed to recognize that, in this case, ultimately the fit parent must be permitted to make good faith decisions regarding her children. Troxel requires this outcome, and the future well-being of these children demands it.
Accordingly, I respectfully dissent from the majority's decision in this case.