In re Grandparent Visitation of L.M., A.M., E.M., J.M., B.M. and S.M. ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2021 Term
June 8, 2021
_______________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0037 OF WEST VIRGINIA
_______________
IN RE Grandparent Visitation of L.M., A.M., E.M., J.M., B.M., and S.M.
____________________________________________________________
Appeal from the Circuit Court of Nicholas County
The Honorable Richard A. Facemire, Judge
Civil Action No. 18-D-186
AFFIRMED
____________________________________________________________
Submitted: March 24, 2021
Filed: June 8, 2021
Todd A. Kirby, Esq. Jefferson L. Triplett, Esq.
D. Allan Martin, Esq. George R. Triplett, Esq.
Kirby & Ashley, L.C. Triplett & Triplett L.C.
Beckley, West Virginia Elkins, West Virginia
Counsel for Petitioner Counsel for Respondents
Julia R. Callaghan, Esq.
Callaghan & Callaghan, PLLC
Summersville, West Virginia
Guardian ad Litem for the Children
JUSTICE ARMSTEAD delivered the Opinion of the Court.
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.
SYLLABUS BY THE COURT
1. “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).
2. “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).
3. “‘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] P[oint] 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).
i
4. “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).
ii
Armstead, Justice:
V.Y. 1 (“Petitioner”), the mother of the children at issue, appeals the Circuit
Court of Nicholas County’s 2 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”).
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
1
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).
2
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.
1
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.
2
Prior to that hearing date, the guardian ad litem met with the children, the
children’s therapists, Respondents, and Petitioner. On January 9, 2019, 3 the guardian ad
litem filed a comprehensive report 4 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.”
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
3
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.
4
The guardian ad litem’s report and her June 14, 2019 update were
incorporated by reference into the family court’s final order.
3
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. 5 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
5
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.
4
of a grant of reasonable grandparent visitation.” 6 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.
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. 7 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 8 provisions
allowing for immediate review of its order:
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]
6
“[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).
7
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.”
8
The two provisions differ in only minor respects. The substance of the two
admonitions is exactly the same. We quote the first here.
5
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
6
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 §
7
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
8
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
9
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.
10
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 (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
11
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;
12
(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:
13
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, 74. 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 (Washington statute unconstitutional as applied). Thus,
14
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. 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. 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. 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. 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. 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,
15
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.
16
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
17
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, 9 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.
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 10 in the record that are not orders or
9
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.
10
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.
18
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.
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. 11 Respondents served as babysitters for all the
children numerous times over the better part of a decade.
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
11
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.
19
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.
20
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
21
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
22
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.
23
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 12 stated early on
12
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
(continued . . .)
24
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.
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:
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.
25
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
26
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
27
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.
28
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.
29
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.
30