Meagan S. v. Terry S. and Kimberly S. ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_______________
FILED
No. 18-0764 November 19, 2019
_______________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
MEAGAN S., OF WEST VIRGINIA
Petitioner
v.
TERRY S. AND KIMBERLY S.,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Cabell County
The Honorable Alfred E. Ferguson, Judge
Civil Action No. 18-D-42
REVERSED AND REMANDED WITH DIRECTIONS
____________________________________________________________
Submitted: October 30, 2019
Filed: November 19, 2019
Jennifer Ransbottom, Esq. Sarah E. Dixon, Esq.
Ransbottom Law Office Saad Dixon Law Offices PLLC
Huntington, West Virginia Huntington, West Virginia
Counsel for the Petitioner Counsel for the Respondents
JUSTICE ARMSTEAD delivered the Opinion of the Court.
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.” Syl. Pt., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803(2004).
2. “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. Pt. 3, Lindsie D.L. v. Richard W.S., 214
W.Va. 750, 591 S.E.2d 308 (2003).
3. “There is a presumption that fit parents act in the best interests of their
children.” Syl. Pt. 4, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).
ARMSTEAD, Justice:
This matter involves a grandparent visitation petition filed by Respondent
paternal grandparents, Kimberly S. and Terry S. (“Grandparents”).1 The family court
granted Grandparents’ petition for visitation over the objection of Petitioner mother,
Meagan S. (“Mother”). The circuit court affirmed the family court’s order.
On appeal, Mother argues that 1) the grandparent visitation factors set forth
in W. Va. Code § 48-10-502 (2001) weigh against visitation, and 2) the family court erred
by failing to give special weight to her wishes concerning the care of her child. Upon
review, we cannot properly assess these arguments because the family court failed to set
forth sufficient findings of fact or conclusions of law explaining its ruling. Also, no
evidentiary hearing was held in this matter. The only evidence presented during the
proceedings below, and the only evidence in the record before us in this appeal, is a report
from the guardian ad litem (“GAL”). We cannot conduct a meaningful review of the issues
and factual disputes raised herein based solely on the GAL’s report.
Therefore, we reverse the circuit court’s August 7, 2018, order affirming the
family court’s order. This case is remanded to family court for further proceedings
consistent with our ruling herein.
1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
R.S. was born in 2013. Mother2 and R.S.’s father, C.S. (“Father”), were
married when the child was born. They divorced in 2017. One month after the divorce,
Father died. In January 2018, Grandparents filed a petition for visitation in the family
court. The family court appointed a GAL who conducted interviews with R.S., Mother,
Grandparents, and R.S.’s paternal aunt. Thereafter, the GAL submitted her report to the
family court.
The GAL’s report included the following information regarding her
interviews with R.S. and Mother: 1) R.S. recalled visiting her Grandparents but said it had
been a long time since she had been to their house; 2) Mother stated that the last contact
R.S. had with Grandparents was in the summer of 2017;3 3) Mother reported that there had
been tension between Father and his parents/Grandparents herein, and that Grandparents
had limited contact with R.S. prior to Father’s death; and 4) Mother had concerns about
Grandparents’ house.4 The GAL’s report included the following information regarding her
interview with Grandparents: 1) they had only been alone with R.S. on one occasion; 2)
they asserted that Mother was “controlling and would constantly glance into the room
2
It is undisputed that Mother is a fit parent.
3
Mother’s interview with the GAL occurred on April 5, 2018.
4
These concerns included 1) the cleanliness of the house, 2) a family member who
was an alcoholic who had lived at the house, 3) medications left within R.S.’s reach on a
prior visit, and 4) criminal activity in Grandparents’ neighborhood.
2
where [R.S.] was even while all of the parties were in the same house”; 3) they disputed
the concerns Mother raised about their house; and 4) R.S. had never stayed overnight at
their house.
The GAL’s report concluded that Mother and Grandparents did not agree on
a number of basic facts about their relationship. The report provides “[m]any of the issues
between the parties seem to be based on different recollections of events and impressions
that may or may not have been intended.” The report describes a number of
“misunderstandings” that had occurred between the parties.
Per the GAL’s report, Grandparents requested “something along the lines of
a shared parenting agreement with them having [R.S.] every other weekend and throughout
the week sometimes.” Mother “indicated that it is her preference that [Grandparents] have
no visitation or contact with R.S.” The GAL recommended that Grandparents receive
limited visitation.5 The GAL noted that
in the event that the Court does not award visitation to
[Grandparents], it is highly likely that [R.S.] will be deprived
of all contact with her father’s side of the family where he is
deceased and there is no indication that [Mother] has any
intention of facilitating any contact between [R.S.] and her
[Grandparents] or any of R.S.’s paternal family.
The family court entered an order granting Grandparents’ petition for
visitation. The order makes a number of findings “[b]ased upon the testimony of the parties
5
The GAL recommended that R.S. visit with Grandparents four days a year.
3
and the report of the [GAL].” (Emphasis added). However, the family court did not hold
an evidentiary hearing in this matter. It appears that neither party requested that an
evidentiary hearing be held. Further, the parties did not offer any factual stipulations.
Thus, it is unclear what “testimony of the parties” the family court considered.
The family court’s order set forth the following rationale explaining why it
granted the petition for visitation:
The Court finds that the recommendation of the [GAL] to
award some visitation to [Grandparents] is in the best interest
of the minor child and adequately takes into consideration the
factors set forth in WV Code § 48-10-502. The Court finds
that the child, now four years old, has a relationship with her
paternal grandparents and no way to maintain any contact or
relationship with the grandparents and other family members
of her deceased father, outside of the parameters of an award
of visitation in this Court based upon the strained relationship
that now exists between [Grandparents] and [Mother]. The
Court finds that the award of several visitations between
[Grandparents] and the child throughout the year appropriately
balances the child’s interest in having a continued relationship
with her grandparents and [Mother’s] interest in making
decisions regarding the care and control of her daughter.
Mother appealed the family court’s order to circuit court and requested oral
argument. This request was denied based on the circuit court’s conclusion that “[t]he
record in this matter is sufficient to rule on the petition.” We again note that the record in
this matter only consists of the GAL’s report.
The circuit court affirmed the family court’s order. The circuit court’s order
includes the following analysis: “There is no evidence that the Family Court did not
consider these two competing interests [best interest of the child and Mother’s opinion],”
4
and “[t]here is no evidence that the Family Court did not accord at least some ‘special
weight’ to [Mother’s] opinion.”
Following entry of the circuit court’s order, Mother filed the instant appeal.
II. STANDARD OF REVIEW
Our standard of review is as follows:
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.
Syl. Pt., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
III. ANALYSIS
On appeal, Mother argues that 1) the grandparent visitation factors set forth
in W. Va. Code § 48-10-502 weigh against visitation, and 2) the family court erred by
failing to give special weight to her wishes concerning the care of her child. Upon review,
this Court cannot properly assess these arguments because the family court’s order failed
to set forth sufficient findings of fact or conclusions of law explaining its ruling. As
discussed below, when a family court is presented with a petition for grandparent visitation,
it must consider a number of factors and make specific, detailed findings explaining its
ruling.
5
Grandparents filed their petition for visitation in the family court pursuant to
W. Va. Code § 48-10-402 (2009).6 The Legislature addressed the findings a court must
make before granting a petition for grandparent visitation in W. Va. Code § 48-10-501(2006): “The 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.”7 We have held that “[t]he Due
Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the
6
W. Va. Code § 48-10-402 provides, in relevant part:
(a) The provisions of this section apply when no proceeding for divorce,
custody, legal separation, annulment or establishment of paternity is pending.
(b) A grandparent may petition the family court for an order granting
visitation with his or her grandchild, regardless of whether the parents of the
child are married. If the grandparent filed a motion for visitation in a previous
proceeding for divorce, custody, legal separation, annulment or
establishment of paternity, and a decree or final order has issued in that
earlier action, the grandparent may petition for visitation if the circumstances
have materially changed since the entry of the earlier order or decree.
7
W. Va. Code § 48-10-702(a) (2001) applies to this case. It provides:
(a) 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.
6
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. Pt. 3, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).
The Legislature set forth thirteen factors that a circuit court or family court
assessing a petition for grandparent visitation “shall consider”:
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;
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(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.
W. Va. Code § 48-10-502.8In the present case, the family court’s order did not include any specific
analysis addressing the thirteen factors set forth in W. Va. Code § 48-10-502. Instead, it
merely provided “[t]he Court finds that the recommendation of the [GAL] to award some
visitation to [Grandparents] is in the best interest of the minor child and adequately takes
into consideration the factors set forth in WV Code § 48-10-502.” The family court did
not state which factors weighed in favor of or against grandparent visitation.
This Court has determined that a family court’s failure to make specific
findings of fact regarding the grandparent visitation factors in W. Va. Code § 48-10-502was clear error. In Turley v. Keesee, 218 W.Va. 231, 624 S.E.2d 578 (2005), the Court
explained that “the 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.” 218 W. Va. at 234, 624 S.E.2d at 581.
Additionally, the Court provided
[w]e find that the family court’s Order . . . does not satisfy the
requirements of W. Va. Code § 48-10-502. Merely restating
the thirteen factors and tacking on to them the court’s “feeling”
that each factor has been satisfied is not enough. The family
8
This Court has held that “[t]he 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].” Syl. Pt. 2, In re Hunter H., 231 W.Va. 118, 744 S.E.2d 228 (2013).
8
court must thoroughly evaluate how each factor applies to
the specific facts and allegations contained in the case
before it. The same evaluation must be made as to the best
interests of the children.
Id. (Emphasis added).
This Court’s ruling in Turley is consistent with our general rule that a lower
court’s order “must be sufficient to indicate the factual and legal basis for the [court]’s
ultimate conclusion so as to facilitate a meaningful review of the issues presented.”
Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904 (1996); see also Nestor v.
Bruce Hardwood Flooring, L.P., 206 W.Va. 453, 456, 525 S.E.2d 334, 337 (1999) (“[O]ur
task as an appellate court is to determine whether the circuit court’s reasons for its order
are supported by the record.”). “Where 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 findings and development.” Province, 196 W.Va. at 483, 473
S.E.2d at 904. This Court has stated, “[w]ithout factual or legal findings, this Court is
greatly at sea without a chart or compass in making a determination as to whether the
[lower] court’s decision was right or wrong.” In re Timber M., 231 W.Va. 44, 59, 743
S.E.2d 352, 367 (2013) (internal citation omitted).
In addition to failing to specifically address the thirteen factors listed in W.
Va. Code § 48-10-502, the family court’s order only included a brief mention of Mother’s
“interest in making decisions regarding the care and control of her daughter.” The order
does not explain why Mother’s interest in making decisions regarding the care of R.S. is
outweighed by R.S.’s interest in having a continuing relationship with Grandparents.
9
Mother is a fit parent. We have held “[t]here is a presumption that fit parents
act in the best interests of their children.” Syl. Pt. 4, Lindsie D.L., 214 W.Va. 750, 591
S.E.2d 308. Additionally, this Court has provided guidance on the special weight that must
be afforded to a fit parent’s decisions regarding the care of their child:
In reconciling the valid competing interests
ensconced within a grandparent visitation determination,
significant weight must be accorded to a fit parent’s wishes.
This principle is . . . premised upon the recognition that a fit
parent having custody of a child possesses distinct rights
regarding the selection of individuals with whom that child
may be affiliated. This principle was the determining factor in
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d
49 (2000), in which the United States Supreme Court held that
a Washington state statute violated the substantive due process
rights of a parent by allowing visitation rights, over parental
objection, even where such visitation served the best interests
of the child. Id. at 61, 120 S.Ct. 2054. The Supreme Court held
that the Washington statute unconstitutionally infringed upon
a parent’s rights by failing to accord appropriate deference to
“a parent’s decision that visitation would not be in the child’s
best interest.” Id. at 67, 120 S.Ct. 2054. . . .
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.” Cathy L.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 State ex rel. Brandon L. v. Moats, 209 W.Va. 752,
551 S.E.2d 674 (2001), this Court indicated that it was not
identifying “the amount of weight that should attach to the
factor of parental preference. . . .” Id. at 763, 551 S.E.2d at 685.
The Brandon Court noted, however, that “in light of the Troxel
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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. (quoting Troxel,
530 U.S. at 70, 120 S. Ct. 2054).
In re Grandparent Visitation of A.P., 231 W. Va. 38, 41-42, 743 S.E.2d 346, 349-350
(2013) (emphasis added).
In the present case, the family court’s order provides that if it declined to
award grandparent visitation, R.S. would not have any contact with Grandparents.
However, the order does not offer any substantive reason why this concern outweighs
Mother’s interest in making decisions regarding the care of her daughter. “The mandates
of Troxel 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.” Id., 231 W. Va. at 43, 743 S.E.2d at 351.9 Because the family court did
not explain why R.S.’s interest in having a continuing relationship with Grandparents
outweighed the special weight that is afforded to Mother’s preference, we cannot conduct
a meaningful review of this issue.
Finally, we note that no evidentiary hearing was held in this matter. We find
it concerning that both the family court and circuit court issued orders in this matter in
which the only evidence presented was the GAL’s report. There was no testimony or
9
Given the lack of specific findings made by the family court, we cannot discern
how the circuit court determined that “[t]here is no evidence that the Family Court did not
accord at least some ‘special weight’ to [Mother’s] opinion.”
11
factual stipulations from the parties. This is especially concerning given the numerous
factual disputes that exist. As highlighted in the GAL’s report, Mother and Grandparents
did not agree on a number of basic facts about their relationship or about whether
Grandparents’ house was a proper environment for R.S. Additionally, during oral
argument before this Court, the parties contested various factual allegations including an
alleged verbal altercation that occurred between the parties outside of a courtroom, and a
child therapist that allegedly recommended R.S. have no contact with Grandparents. 10 This
Court has no meaningful way to assess these factual disputes because no evidentiary
hearing was held. Nor can we assess a therapist’s opinion when the therapist has not been
identified, did not testify below, and did not submit a report or affidavit setting forth his/her
opinion.
Based on all of the foregoing, we find that the circuit court erred in affirming
the family court’s order. We remand this matter to the family court with directions for it
to hold further proceedings which will allow it to conduct a meaningful review of the
petition for grandparent visitation and, thereafter, to enter an order that includes a specific,
detailed analysis of the thirteen factors listed in W. Va. Code § 48-10-502. The family
court must also address the special weight that is to be afforded to Mother’s decisions
10
Mother’s brief to this Court provides, with no citation to the record: “Just meeting
with the [GAL] caused the child to have anxiety about the grandparents. In a follow up
meeting with the child’s therapist, it was recommended that she have no contact with the
grandparents.”
12
concerning the relationships to be enjoyed by R.S. See In re Grandparent Visitation of
A.P., 231 W. Va. 38, 743 S.E.2d 346.
IV. CONCLUSION
We reverse the circuit court’s August 7, 2018, order. This case is remanded
to the family court for further proceedings. At the conclusion of the additional proceedings,
the family court’s order must include specific findings of fact and conclusions of law upon
which it bases its decision.
Reversed and Remanded With Directions.
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