In re Adoption of L.A. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re Adoption of L.A.
No. 21-0372 (Hampshire County 20-A-14)
MEMORANDUM DECISION
Petitioners, Father J.A. and Mother N.W., by counsel Jeremy B. Cooper, appeal the
Circuit Court of Hampshire County’s April 9, 2021, order granting ongoing visitation with
respondents following petitioner mother’s adoption of L.A. 1 Respondents B.M.-1 and B.M.-2,
the child’s biological maternal grandparents, by counsel Christopher D. Janelle, filed a response
in support of the circuit court’s order. The child’s guardian, Lauren M. Wilson, filed a response
in support of the circuit court’s order. Petitioners filed a reply. On appeal, petitioners argue that
the circuit court erred in permitting respondents and L.A. to have ongoing visitation following
petitioner mother’s adoption of the child.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the governing law, the briefs, and the record presented,
the Court finds that the circuit court erred in granting respondents continued visitation with L.A.
without making findings that demonstrate a granting of substantial weight to petitioners’ wishes
or fully analyzing the factors set forth in West Virginia Code § 48-10-502. This case satisfies the
“limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate
Procedure, and a memorandum decision is appropriate to vacate, in part, and remand the matter
for further proceedings consistent with this decision.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Additionally, because respondents share the same
initials, we will refer to them as B.M.-1 and B.M.-2, respectively, throughout this memorandum
decision.
1
Prior to the initiation of the current proceedings, petitioner father and the child’s
biological mother were involved in family court proceedings concerning custody of the child. In
March of 2017, petitioner father was granted primary custody of the child, while the mother was
permitted supervised visitation based on her past failures to follow the child’s dietary
restrictions, which resulted in health problems for the child. In that same order, the family court
granted respondents visitation with the child for one weekend per month. However, the family
court was clear that “visitation with [respondents] is temporary and has occurred only because
the mother’s time with the child is necessarily restricted.”
In June of 2020, petitioners filed a petition for adoption. Petitioner father provided his
consent for the child’s stepmother, co-petitioner herein, to adopt the child. The following month,
the child’s biological mother filed an answer to the petition. In October of 2020, the guardian
filed a report in which she recommended that the stepmother be permitted to adopt the child. In
November of 2020, respondents filed a motion to intervene. The following month, respondents
filed a motion for contempt upon allegations that they had not been permitted to exercise their
visitation with the child. According to the record, although respondents and petitioner father
were in agreement at the onset of the COVID-19 pandemic that visitation should be suspended,
the visits remained suspended from March of 2020 through May of 2020, after which petitioners
filed their motion for adoption.
In January of 2021, the court held an evidentiary hearing, during which it heard testimony
from Cpl. Phoebe Lahman of the Hampshire County Sheriff’s Office; Jerrilyn Jackson, counselor
for L.A.; and petitioner father. Cpl. Lahman conducted the adoption home study of petitioners’
home and ultimately recommended that the adoption be granted. According to Cpl. Lahman, the
child was “very happy and healthy,” the “residence was clean and suitable for the child,” and
neither petitioner “had any known criminal history or prior calls for law enforcement to respond
to.” Because the biological mother did not consent to the adoption, the court then turned to the
issue of whether appropriate grounds for adoption existed and whether it would be in child’s best
interest. According to the evidence, the mother had not seen the child since October of 2017, was
in arrears on her child support obligation, and had abandoned the child. The court also took
notice of prior family court orders in which the mother was found to have failed to follow
medical advice concerning the child’s dietary restrictions, which caused L.A. to suffer symptoms
of gastric distress, pain, and other gastrointestinal problems.
As it relates to respondents’ visitation, Ms. Jackson authored a letter concerning her
therapy with L.A. in which she explained that L.A. initially presented with outbursts and anxiety
related to interactions with extended family. However, Ms. Jackson indicated that L.A.’s
demeanor and attitude improved following restrictions on visitation with respondents
necessitated by the COVID-19 pandemic. According to Ms. Jackson, L.A. appeared to be more
relaxed and expressed that she “feels less nervous since she does not have to attend visits with
[respondents].” L.A. reported that while at respondents’ home she “heard mean things about
[petitioners]” and that she was asked not to share what respondents said, which caused the child
to feel like she was “keeping secrets.” According to L.A., after visitation ended, she felt like “a
monkey was on her back and now it’s gone.”
2
During her testimony, Ms. Jackson corroborated the contents of her letter, indicating that
L.A. was having behavioral issues when she began treatment, but that the child had improved
dramatically. The counselor testified that visitation with respondents was the cause of these
issues, as the child expressed confusion over her visits with respondents. Specifically, “[o]ne
particular incident that caused [L.A.] trauma was hearing that [petitioners] would be getting a
divorce which was not the case.” According to Ms. Jackson, L.A. reported that respondents told
her about the divorce. Additionally, L.A. said that respondent grandfather called her a liar when
confronted with the accusation that he misled the child about the divorce. Ms. Jackson testified
that L.A. “talked about feeling increasingly nervous” about visitation “after the incident where
she felt that her grandfather called her a liar.”
Further, the counselor testified about L.A.’s disclosures that respondents asked her not to
talk to her parents about certain things that were said and how this secrecy had a negative impact
on the child and her behavior. Ms. Jackson also explained that because of the child’s dietary
restrictions, she was always worried about what type of food she would be given during visits.
According to Ms. Jackson, L.A. “talked about feeling not believed or trusted about her physical
health issues” when it came to visits. Specifically, Ms. Jackson explained that her understanding
of the situation was that respondents were aware of L.A.’s dietary restrictions, but that the child
was concerned “they were going to make her eat things she wasn’t allowed to have.” Ms.
Jackson also testified that L.A.’s behavior improved after visitation ceased, as the child became
“more of a kid” as demonstrated by her increased laughter and happiness during sessions.
According to Ms. Jackson, the child’s reported outbursts decreased after visits with respondents
ceased. Despite Ms. Jackson’s extensive testimony about the effect of visitation on L.A., she
testified that she did not have an opinion on whether visitation should be ongoing, “[o]ther than
[L.A.] has talked about feeling better since she has not gone.” Ms. Jackson followed this by
clarifying that she “would [not] be getting in the truth or falsity of the matter” for purposes of the
hearing.
Petitioner father also testified and confirmed that L.A.’s behavior improved after visits
with respondents ended, which caused him to choose to deny them further visitation in the
child’s best interest. Petitioner father also confirmed that L.A. told petitioners that respondents
told her petitioners would be getting divorced, and when petitioner father confronted respondent
grandfather about the issue, the grandfather called L.A. a liar. Petitioner father detailed other
ways in which respondents interfered with his ability to parent the child, including respondents
telling L.A. that she did not have to listen to petitioner mother and fostering a rebellious attitude
by telling the child that petitioners were wrong to ask her to behave. Petitioner father further
acknowledged that visitation with respondents was generally a good experience, that respondents
love L.A., and that L.A. loves them. The matter was ultimately continued.
In February of 2021, the parties appeared for a final evidentiary hearing on the petition
for adoption and respondents’ contempt issues. The court heard testimony from petitioner
stepmother, L.A.’s mother, both respondents, and the child’s guardian. Petitioner mother referred
to L.A. as an anxious child who had suffered past traumas, but testified that L.A.’s behavior
improved after visits with respondents ceased.
3
Respondent grandmother testified to her relationship with L.A. According to the
grandmother, before any of the extended court proceedings involving the child, petitioner father
and L.A. would frequently visit respondents’ home and L.A. would stay with them while
petitioner father worked. Respondent grandfather testified and denied telling L.A. that petitioners
would be getting a divorce.
The child’s guardian also testified, and confirmed that L.A. and respondents have a
mutually loving and beneficial relationship. According to the guardian, L.A. has a strong bond
with respondent grandmother. The guardian recommended that visitation continue if the adoption
were granted, subject to limitations regarding the biological mother.
Ultimately, the court found that adoption was necessary because of the mother’s
abandonment of L.A. and because reintroducing the mother into the child’s life would be
detrimental to the child. As such, the court found that it was in the child’s best interest to
terminate the mother’s parental rights and to deny the mother post-termination visitation. The
court then turned to respondents’ motion for visitation and associated contempt issues. The court
noted that although L.A.’s counselor made no recommendation about whether visits with
respondents should continue, she did observe a noticeable positive difference in L.A.’s behavior
after visitation ended. The court found that, based upon that information, petitioner father
consciously chose not to continue visits because he believed it would be in the child’s best
interests. Because of “the unusual circumstances presented in this case caused by the coronavirus
pandemic,” the court declined to hold petitioner father in contempt for any “alleged violations”
of the family court’s 2017 order regarding grandparent visitation. The court found, however, that
the guardian recommended continued visits between respondents and the child, especially
considering that the child has a significant bond with respondent grandmother. As such, the court
awarded respondents one weekend per month of visitation with L.A. and also ordered that L.A.
be permitted visits with her half-sibling during visits with respondents. The court also imposed
the following restrictions: (1) respondents shall not permit the biological mother to have contact
with the child, including third-party communications, gifts, letters, phone calls, or any other
communication; (2) respondents shall not make any disparaging remarks about petitioners during
visits; (3) respondents shall follow all therapeutic recommendations from L.A.’s counselor in
processing her adoption with regard to contact with her half-sibling; (4) and prior to any visits
between respondents and L.A., all parties shall meet with L.A.’s counselor to develop an
appropriate transition plan for visits. It is from this order that petitioners appeal.
The following standard of review applies to matters such as these:
“In reviewing challenges to the findings and conclusions of the circuit court, we
apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syllabus point 2, Walker v.
West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).
Syl. Pt. 1, In re the Adoption of Jon. L., 218 W. Va. 489, 625 S.E.2d 251 (2005). Further,
“[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an
4
interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 2, In re Visitation of
A.P., 231 W. Va. 38, 743 S.E.2d 346 (2013) (citation omitted). We now turn to petitioners’
specific arguments on appeal.
According to petitioners, the lower court failed to accord any weight—let alone special
weight as required by Troxel v. Granville, 530 U.S. 57 (2000)—to their objection to the
grandparent visitation continuing. Upon our review, we agree, as the record contains no findings
related to petitioners’ position concerning ongoing grandparent visitation. As we have explained,
“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.”
State ex rel. Brandon L. v. Moats, 209 W. Va. 752, 763, 551 S.E.2d 674, 685 (2001) (quoting
Troxel, 530 U.S. at 70). Despite this instruction, neither the order on appeal nor any transcript in
the appendix record contain anything that shows the court afforded any weight, let alone special
weight, to petitioners’ position on continued visitation.
Further compounding this error is the fact that the circuit court addressed only a few of
the many factors a court is required to consider in determining if grandparent visitation is
appropriate. We have previously explained that “[t]he Grandparent Visitation Act, W.Va. Code §
48-10-101 et seq. [2001], is the exclusive means through which a grandparent may seek
visitation with a grandchild.” A.P., 231 W. Va. at 38, 743 S.E.2d at 347, Syl. Pt. 3 (citation
omitted). According to West Virginia Code § 48-10-502,
In making a determination on a motion or petition the court shall consider the
following factors:
(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;
5
(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.
In the order on appeal, the court addressed only a few of these factors and the findings
that were made are limited and conclusory. For example, the court simply concluded that L.A.
“does have a significant bond with her grandmother . . . and it is in the best interests of the minor
child to continue to have visitation with her grandparents.” This finding is confusing, because the
court also found that the child’s counselor “observed there to be a noticeable difference in L.A.’s
behaviors after the visitations ceased” and that the child’s “behaviors improved significantly.”
Because the court did not further elaborate on its conclusion that continued visitation with
respondents is in the child’s best interests, it is difficult to reconcile these findings. Given that the
only evidence to which the court cites in support of its findings demonstrates that the child’s
visitations with the grandparents negatively impacted her behavior and wellbeing, it is unclear
why the court found that continued visitation is in the child’s best interest, other than the fact that
the child and respondent grandmother share a significant bond. Petitioners also argue on appeal
that the court erred in finding that ongoing visitation would not interfere with the parent-child
relationship and that it would be in the child’s best interests. Given the analysis above
concerning the clear evidence that visitation had a negative impact on the child’s behavior and
mental health, we reiterate that absent more detailed findings, it is difficult to find support in the
record for the court’s conclusion that continued visitation is in the child’s best interests.
As we recently explained, “when a . . . court is presented with a petition for grandparent
visitation, it must consider a number of factors and make specific, detailed findings explaining its
ruling.” Meagan S. v. Terry S., 242 W. Va. 452, 455, 836 S.E.2d 419, 422 (2019). Further, we
stressed that the legislature was explicit that a court “shall consider” the factors set forth in West
Virginia Code § 48-10-501. Id. at 456, 836 S.E.2d at 423. In that case, the Court remanded the
matter because the lower court’s order “did not include any specific analysis addressing the
thirteen factors” set forth above. Id. Similar to the matter at hand, the lower court in Meagan S.
simply concluded that the guardian’s recommendation to award visitation to the grandparents
was in the minor child’s best interests. Id. Importantly, we noted that the court “did not state
which factors weighed in favor or against grandparent visitation.” Id. We went on to reiterate
that the “failure to make specific findings of fact regarding the grandparent visitation factors in
W. Va. Code § 48-10-502 [is] clear error” because “‘the Legislature has gone to great lengths to
enumerate the factors listed in W. Va. Code § 48-10-502’” and that “‘[t]hese factors should be
clearly addressed in any . . . court order granting grandparent visitation rights.’” Id. at 456-57,
836 S.E.2d at 423-24 (quoting Turley v. Keesee, 218 W. Va. 231, 234, 624 S.E.2d 578, 581
(2005)).
Even more important to the matter on appeal, we found in Meagan S. that in addition to
the failure to address the specific thirteen factors set forth in the controlling statute, the order
“only included a brief mention of [m]other’s ‘interest in making decisions regarding the care and
control of her daughter’” without going on to explain “why [m]other’s interest in making
decisions regarding the care of [the child] is outweighed by [the child’s] interest in having a
continuing relationship with [g]randparents.” Id. at 457, 836 S.E.2d at 424. Accordingly, we
explained that “[w]here the lower tribunals fail to meet this standard—i.e., making only general,
conclusory or inexact findings—we must vacate the judgment and remand the case for further
6
findings and development.” Id. (quoting Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d
894, 904 (1996)). In this matter, we must similarly vacate the judgment and remand for the
limited purpose of the circuit court’s entry of an order containing detailed findings of fact and
conclusions of law on the specific factors set forth in West Virginia Code § 48-10-502 and
explaining what special weight has been accorded to the parents’ stated position that visitation be
terminated. 2 We note, however, that unlike in Meagan S., further proceedings are unnecessary,
as the circuit court in this matter held lengthy evidentiary hearings on the issues on appeal.
Lastly, we note that petitioners ask this Court to overturn its prior holdings in Petition of
Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987), and Brandon L. by ruling that when a
grandparent’s own child has their rights terminated, all prior visitation awarded to that
grandparent be vacated upon the entry of the order terminating said rights. Simply put, we
decline to do so.
For the foregoing reasons, we vacate, in part, 3 the circuit court’s April 9, 2021, order
granting respondents ongoing visitation with the child and remand the matter for the limited
purpose of the circuit court’s issuance of a new order on the matter in accordance with the
directions set forth herein. The court is directed to issue this order within thirty days, and the
Clerk is directed to issue the mandate contemporaneously with this memorandum decision.
Vacated, in part, and remanded, with instructions.
ISSUED: February 1, 2022
2
In their brief, respondents assert that petitioners never appealed the March 30, 2017,
family court order that awarded respondents visitation and, therefore, petitioners are estopped
from now asserting error in that order and in challenging their visitation generally. This
argument is not compelling for several reasons, the most apparent being respondents’ immediate
recognition that “[u]pon the adoption proceeding, the following matters regarding grandparent
visitation were at issue: the [r]espondents’ pending petition for contempt, the [r]espondents’
motion to intervene in the adoption, and the [r]espondents’ request for visitation to continue
even if the adoption were to be granted.” By their own admission, respondents make it clear that
the question of whether they would be permitted additional visitation pending the adoption was
one to be resolved in the order on appeal. As such, it is clear that despite having never appealed
from the family court’s prior order awarding temporary visitation with respondents, the ultimate
question of whether visitation would be permitted to continue post-adoption was clearly resolved
in the order on appeal and is, therefore, appropriate for consideration in the current matter.
3
The order on appeal also terminated the biological mother’s parental rights to the child
and permitted petitioner mother to adopt the child. Nothing in this memorandum decision should
be construed as disturbing those rulings, as those portions of the circuit court’s order are not
vacated and remain in full force and effect.
7
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
8