D.R. and M.R. v. W.B. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
D.R. and M.R., FILED
Respondents Below, Petitioners
June 16, 2017
RORY L. PERRY II, CLERK
vs) No. 16-0302 (Logan County 15-SAP-2-W and 15-SAP-3-W) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
W.B.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioners and paternal grandparents D.R. and M.R.,1 by counsel Christopher T. Pritt,
appeal the February 23, 2016, order of the Circuit Court of Logan County that affirmed the
issuance of a personal safety order that was sought by Respondent W.B., their former daughter­
in-law, on behalf of herself and her minor son. Respondent W.B., appearing pro se, filed a
summary response.
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 standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error with respect to
the affirmance of the personal safety order to protect respondent and her child from petitioners.
However, as more fully explained herein, the Court is of the opinion that the circuit court erred
in affirming the issuance of the personal safety order in this matter inasmuch as the circuit court
awarded relief to a non-party in the proceedings. Accordingly, this case satisfies the Alimited
circumstances@ requirement of Rule 21(d) and it is appropriate for the Court to issue a
memorandum decision rather than an opinion.
This case involves the issuance of a personal safety order, issued pursuant to West
Virginia Code §§ 53-8-1 through -17, that was filed by respondent on behalf of her six year old
son, to protect her and the child from contact by petitioners. Petitioners are the child’s paternal
grandparents. Respondent and D.R., Jr. (petitioners’ son and the child’s father), are divorced and
both have remarried. The Family Court of Logan County previously awarded petitioners
visitation with the child following the divorce, over the objections of both respondent and
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).
1
petitioners’ son. However, upon the motion of respondent and petitioners’ son, the family court
terminated petitioners’ visitation rights by order entered on May 14, 2014. Petitioners appealed
the termination of their visitation rights to the circuit court, which refused their appeal by order
entered on August 1, 2014.
Respondent filed a petition for a personal safety order against petitioners in the
Magistrate Court of Logan County on April 23, 2015. As the grounds for her petition, respondent
stated as follows:
[Petitioner and grandfather D.R.] has come to my son’s school trying to have
lunch all while enticing him to come to his home.2 I fear for his safety and well
being. [The child] fears for his life and he is scared they are going to take him.
He’s afraid to go to school. He thinks he will never see me again. The school
called and I had to get him. He was broken out really bad from his nerves and
from being scared.
The magistrate court issued the personal safety order against petitioners who responded
with an appeal with the circuit court, which held a de novo evidentiary hearing on February 5,
2016. The parties appeared pro se. At the hearing, respondent testified, in relevant part, as
follows:
[Respondent]: My son was at school and I had a phone call that I needed
to come down to the school. I had gotten down there and he was broke out with a
rash3 and he was in principal’s office. And [petitioners] had come down there
trying to have lunch with him, well they had already lost their grandparent rights
and wasn’t supposed –
THE COURT: Where did they lose rights?
[Respondent]: Over in Family Court. And the Judge told them verbally,
“Don’t go to his school; it’s fine if you go to his sporting events, but just don’t
bother him in school.” Well they come down there anyways and so I had to go
down there and I had to pick him up from school and he didn’t want to go back to
school anymore because he was afraid they were going to come down there. So
that’s why we went in and had the protective order put in because he said when
they were there, they kept saying [to the child], “Yeah, I bet you want to come to
Mimi and Poppie’s house,” trying to entice him to want to go to their house. And
he just doesn’t want to because he’s afraid that he wouldn’t get to come back.
That’s what he has told me.
2
Respondent states that her son’s school permits parents to have lunch with their child.
She states that, on the day that petitioners visited the school, there was no special event that
opened the lunch period to the public that would have permitted petitioners to visit him there.
3
Respondent states that her son has eczema that flares up when he gets upset or nervous.
2
(Footnote added).
In response, petitioner and grandmother M.R. testified that she recorded the entire visit at
the school from the time they parked until they left the school. After cautioning petitioners about
making surreptitious recordings, the circuit court attempted to listen to the twelve minute audio
recording. Much of the recording was inaudible due to the number of students in the lunchroom.
The recording, however, revealed petitioners checking into the school; locating the child in the
lunchroom; offering the child chicken nuggets; telling the child that they will come to his ball
games; questioning the child as to whether he is mad at them; and telling the child they love him.
Petitioner’s son, D.R., Jr., who appeared at the hearing in support of respondent,
questioned petitioners as to why they would defy the family court’s order prohibiting them from
visiting the child at school. Petitioners denied that the family court imposed such a restriction on
them. The circuit court received a copy of the May 14, 2014, “Order Terminating Grandparent
Visitation” into the record. In that order, the family court notes that the guardian ad litem for the
child recommended that Petitioner M.R. not receive any visitation with the child “until such time
that she has obtained anger management counseling.” The family court found that “the actions of
[Petitioner M.R.] in confronting [D.R., Jr.’s,] significant other while she was holding the infant
child in her arms, confirms that the parents’ objection to grandparent visitation was reasonable
and warranted.”4 Furthermore, according to the guardian ad litem’s report from the visitation
proceeding, which is included in the appendix record in the current matter, respondent advised
the guardian ad litem that petitioners “had repeatedly made derogatory comments to
[respondent’s child] about [respondent and D.R., Jr.],” and that Petitioner M.R. “had interfered
with her relationship with her child and had verbally harassed her.”
By order entered on February 23, 2016, the circuit court affirmed the issuance of the
personal safety order. The circuit court found that petitioners visited the child at school causing
him to be upset, and that the best interest of the child required the issuance of the personal safety
order. The circuit court ordered as follows:
[T]he Personal Safety Order is affirmed and the appeal from the Personal Safety
Order is overruled; [petitioners] are not allowed to go to the school where the
child is being educated except for events where the general public is invited, but
the Court is specifically ORDERING that [petitioners] may not visit with said
child at public events; [petitioners] [are] ORDERED to not contact or attempt to
contact or harass either of the parents of the child indirectly or directly through
third parties; [petitioners] are ORDERED to not enter the residence of either of
the parents; [petitioners] are ORDERED to not go to the place of employment,
school or residence of either of the parents; [petitioners] are ORDERED to not be
around the school where the child attends for any reason except for an event to
which the general public is invited as previously stated.
4
According to the appendix record, the infant child that was the subject of this incident is
the child of D.R., Jr., and his then-girlfriend.
3
Petitioners now appeal to this Court.
On appeal, petitioners raise the following three assignments of error: (1) the circuit court
erred by granting relief to their son, D.R., Jr., who was not a party to the proceedings below; (2)
the circuit court erred in affirming the personal safety order because respondent was eligible for
domestic violence protective order under West Virginia Code § 48-27-305; and (3) the evidence
introduced before the circuit court did not warrant issuance of the personal safety order. We
apply the following standard of review in this matter:
In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is applied.
The final order and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court’s underlying factual findings are
reviewed under a clearly erroneous standard. Questions of law are subject to a de
novo review.
Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996).
In petitioners’ first assignment of error, they argue that the circuit court abused its
discretion by restricting their ability to have contact with D.R., Jr., their son, because he was not
a party to the proceedings below. Upon our review, we agree with petitioners. West Virginia
Code § 53-8-7(b) states that “[a] final personal safety order may be issued only to an individual
who has filed a petition or on whose behalf a petition was filed under section three of this
article.” Pursuant to West Virginia Code § 53-8-3(a), in relevant part, “[a] petition for relief . . .
may be filed by: (1) A person seeking relief under this article for herself or himself; or (2) A
parent, guardian or custodian on the behalf of a minor child or an incapacitated adult.”
In this case, respondent filed the petition on her and her minor son’s behalf; D.R., Jr., did
not file a petition on his own behalf. Nevertheless, the circuit court ordered that petitioners “not
contact or attempt to contact or harass either of the parents of the child indirectly or directly
through third parties (emphasis added);” that petitioners “not enter the residence of either of the
parents (emphasis added);” and that petitioners “go to the place of employment, school or
residence of either of the parents (emphasis added)[.]” We conclude that the circuit court abused
its discretion by including D.R., Jr. as a person with whom petitioners could not have any
contact. Therefore, the circuit court’s order is reversed inasmuch as it grants relief to D.R., Jr., as
he was not a party to the proceedings and sought no relief under the statute.
Petitioners’ second assignment of error is that respondent was not eligible for relief in the
form of a personal safety order because she could have sought a domestic violence protective
order pursuant to West Virginia Code § 48-27-305. See West Virginia Code § 53-8-3(c), in
relevant part (“This article does not apply to a petitioner who is a person eligible for relief under
article twenty-seven, chapter forty-eight of this code.”). Respondent is divorced from petitioners’
4
son; she and petitioners are no longer family or household members, as required for a domestic
violence protective order.5 Accordingly, we reject petitioners’ second assignment of error.
We next examine whether the evidence before the circuit court warranted issuance of a
personal safety order to respondent and her son, which is the basis of petitioners’ third
assignment of error. West Virginia Code § 53-8-7 states, in relevant part, that a court
[m]ay issue a final personal safety order to protect the petitioner if the court finds
by a preponderance of the evidence that:
(A)(i) The respondent has committed an act specified in subsection (a), section
four of this article [West Virginia Code § 53-8-4(a)] against the petitioner; and
(ii) The petitioner has a reasonable apprehension of continued unwanted or
unwelcome contacts by the respondent[.]
West Virginia Code § 53-8-4(a) requires that a person seeking a personal safety order establish
any of the following:
(1) A sexual offense or attempted sexual offense as defined in section one of this
article;
(2) A violation of subsection (a), section nine-a, article two, chapter sixty-one of
this code [West Virginia Code § 61-2-9a(a)]; or
(3) repeated credible threats of bodily injury when the person making the threats
knows or has reason to know that the threats cause another person to reasonably
fear for his or her safety.
West Virginia Code § 61-2-9a(a) provides as follows:
Any person who repeatedly follows another knowing or having reason to know
that the conduct causes the person followed to reasonably fear for his or her safety
or suffer significant emotional distress, is guilty of a misdemeanor and, upon
conviction thereof, shall be incarcerated in the county or regional jail for not more
than six months or fined not more than one thousand dollars, or both.
Without question, there is no allegation of a sexual offense or an attempted sexual
offense. Examining the allegations in this case, the question is whether the preponderance of the
evidence before the circuit court established either (1) “repeated[] follow[ing] [of] another
5
Respondent states that she explained to the magistrate assistant that she was divorced
from D.R. Jr., petitioners’ son, and that she wanted something to protect the child from
petitioners. Respondent states that the magistrate assistant gave her the personal safety order
forms to complete.
5
knowing or having reason to know that the conduct cause[d] the person followed to reasonably
fear for his or her safety or suffer significant emotional distress,” or (2) “repeated credible threats
of bodily injury when the person making the threats knows or has reason to know that the threats
cause another person to reasonably fear for his or her safety.” In our analysis, we must take into
account the requirement that the conduct of petitioners be “repeated,” which means “on two or
more occasions.” See W.Va. Code § 61-2-9a(f)(5).
Upon our careful review and under the limited circumstances in this case, we find that the
record in this matter supports the issuance of the personal safety order to protect respondent and
her child. The evidence before the circuit court demonstrated that petitioners, without any
authorization from respondent, D.R., Jr., or the family court, visited the child at his school during
his lunch break. Respondent presented credible evidence that petitioners’ visit caused the child
stress and anxiety, to the point that his eczema flared up.6 This incident, coupled with the prior
incidents noted in the visitation termination proceeding, prompted respondent to file the petition
for a personal safety order in the magistrate court. The record also includes evidence that
Petitioner M.R. confronted the D.R., Jr.’s then-girlfriend while she held an infant; that petitioners
made derogatory comments to the child about his parents; that Petitioner M.R. interfered with
respondent’s relationship with her; that Petitioner M.R. had verbally harassed respondent in the
past; and that the guardian ad litem recommended that Petitioner M.R. not be permitted to visit
the child until she obtained anger management counseling. For these reasons, we find the circuit
court did not abuse its discretion in affirming the issuance of the personal safety order sought by
respondent on her and her son’s behalf.
For the foregoing reasons, we affirm the February 23, 2016, order of the Circuit Court of
Logan County affirming the issuance of the personal safety order as the order applies to
respondent and her child. However, we reverse the order inasmuch as it includes D.R., Jr., as a
party with whom petitioners can have no contact.
Affirmed in part, and reversed in part.
ISSUED: June 16, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
6
It is reasonable to conclude that petitioners were aware of the child’s condition given
that they previously enjoyed visitation with him.
6