In re K.K. ( 2023 )

FILED
October 25, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re K.K.
No. 22-892 (Berkeley County CC-02-2016-JA-166)
MEMORANDUM DECISION
Petitioners L.S. and S.E., 1 intervenors below and K.K.’s paternal grandparents, appeal the
Circuit Court of Berkeley County’s October 24, 2022, order terminating their grandparent
visitation with K.K. 2 Upon our review, we determine that oral argument is unnecessary and that a
memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.
The proceedings giving rise to this appeal were initiated in 2016, when the DHHR filed a
petition alleging abuse and/or neglect of the subject child by her mother, N.K. 3 At a hearing in
September 2017, the circuit court terminated N.K.’s parental rights to the child due to her inability
to correct issues of substance abuse. Before the court could conduct a hearing on the child’s return
to the nonabusing father, who is petitioner L.S.’s son, he died of an overdose in petitioners’ home
shortly after the September 2017 hearing. Following the father’s death, it appears that the child
remained in the custody of the maternal grandmother, respondent M.K. The court initially ordered
petitioners and M.K. to participate in mediation to determine a custodial or grandparent visitation
schedule that was in the child’s best interests. Ultimately, the court permitted M.K. to adopt the
child following a hearing in March 2019, although petitioners were awarded ongoing visitation
with the child on alternating Thursdays through Monday afternoons.
In April 2022, M.K. filed a motion to modify petitioners’ visitation because the child was
beginning pre-kindergarten five days per week, rendering the visitation schedule untenable. As the
1
Petitioners appear by counsel Todd W. Reed. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee Niezgoda. Counsel Emily R. Mowry appears as the child’s
guardian ad litem (“guardian”). Respondent Mother M.K. appears by counsel Paul G. Taylor.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
3
Those proceedings also addressed one other child and additional adult respondents, none
of whom are relevant to the resolution of the instant matter.
1
record shows, permitting the visitation schedule to continue unaltered would have required the
child to miss days of the pre-kindergarten program and therapies for speech and physical issues.
M.K. also alleged that petitioners were interfering with her exercise of custody and attempting to
alienate her from the child. Petitioners responded by filing various pleadings in which they alleged
that M.K. was abusing and/or neglecting the child by failing “to address the child’s legitimate
health and socialization concerns timely” and exposing her to the mother whose rights had been
terminated, among other allegations. Petitioners also alleged that M.K. interfered with their
visitation with the child.
Thereafter, the guardian filed a report detailing her investigation into the issues. According
to the guardian, petitioners questioned the validity of the child’s therapy program and sought to
take the child out of state knowing it would disrupt her participation in therapy. The guardian also
addressed a recording petitioners made in which they “essentially interrogated” the child about
possible abuse or neglect by M.K. and “tr[ied] to put words in [the child’s] mouth.” At one point
during the recording, the child “start[ed] whimpering and clearly did not want to talk about this,”
to which one of the petitioners stated, “I’m so mad.” In another recorded conversation, petitioners
“tried to make [the child] sad . . . that she would be starting school.” According to the guardian,
none of the recordings contained any spontaneous disclosures by the child, but, instead, were “full
of situations where [one of the petitioners] was trying to prompt [the child] into making statements
against” M.K. The guardian also indicated that petitioners, “being unsatisfied with [the guardian’s]
investigation, had hired a private investigator to follow [M.K.] and the [child] to obtain ‘evidence’
of some wrongdoing.” The guardian believed that petitioners’ involvement of a third-party in a
confidential court proceeding called into question her ability to review any documents prepared
by the investigator and highlighted instances of other individuals who appeared to have obtained
information about the confidential proceedings from petitioners. The guardian concluded that, in
response to petitioners’ claims that M.K. was unfit, she, despite working night shifts, “has made
every effort to ensure [the child got] to every necessary appointment, school, extracurricular
activities, and visitation” with petitioners. M.K. further had the child “enrolled in multiple types
of therapy and was able to speak at length . . . about . . . [the child’s] physical, developmental, and
educational needs.” In short, the guardian asserted that she had seen no evidence that M.K. was
unfit or acting contrarily to the child’s best interests. However, the guardian expressed concerns
about petitioners’ appropriateness and “their excessive efforts to investigate the minute details” of
the lives of M.K. and the child. Based on their “repeated and excessive actions,” the guardian
expressed concern that petitioners were not acting in the child’s best interests and were, in fact,
“causing her anxiety and stress.”
In October 2022, the court held a final hearing on the issue of grandparent visitation, during
which petitioners argued that the guardian took their actions “out of context and misrepresented”
them to the court. The court then ruled on the issue of visitation, going through each of the required
factors set forth in West Virginia Code § 48-10-502 4 as follows: (1) the child’s age resulted in her
4
West Virginia Code § 48-10-502 sets forth the following:
In making a determination on a motion or petition the court shall consider the
following factors:
(1) The age of the child;
2
starting school, which was a change in circumstances that necessitated modification of grandparent
visitation; (2) the child’s relationship with petitioners was “difficult” because the child was
“constantly tugged between two families and feels . . . that there is no way to resolve the conflict”;
(3) the relationship between M.K. and petitioners was not positive; (4) visitation had been stopped
during the proceedings while the parties worked through issues; (5) visitation with petitioners
would have a negative impact on the child’s relationship with M.K. given petitioners’ negative
comments to the child about M.K. and other conduct set forth in the record; (6) this factor is
inapplicable due to the death of the child’s father and the termination of her biological mother’s
rights; (7) the child and her family’s schedule was limited because of the child’s school, therapies,
and extracurriculars, in addition to M.K.’s work schedule impacting her ability to transport the
child to visits; (8) petitioners had not acted in good faith during the proceedings “as they have
continually tried to negatively affect the relationship” between the child and M.K.; (9) the child’s
biological father died of a drug overdose in petitioners’ home during the underlying case; (10) the
child never resided with petitioners; (11) petitioners were never caretakers for the child; (12) M.K.
“tried her best to work with” petitioners, but it is clear petitioners and M.K. are unable to work
together; and (13) it was not in the child’s best interest “to have people continuously in conflict
and not able to work together.” The court further addressed petitioners’ attempts to undermine
M.K.’s authority to determine what is in the child’s best interests, such as when petitioners had the
child “baptized into the Catholic Church without inviting [M.K.] or consulting with her.” Based
on these considerations, the court concluded that visitation between petitioners and the child would
substantially interfere with the parent-child relationship and would not be in the child’s best
interests. Accordingly, the court ordered that petitioners have no visitation with the child and that
any contact between them be left to M.K.’s discretion. It is from this order that petitioners appeal.
(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.
3
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioners argue that the court
erred in terminating their visitation with the child because the court incorrectly applied the factors
from West Virginia Code § 48-10-502. 5 First, petitioners argue that the court’s findings were
legally deficient. Citing Meagan S. v. Terry S., 242 W. Va. 452, 836 S.E.2d 419 (2019), petitioners
argue that the circuit court’s finding were “sparse and/or conclusory” and, in several instances,
simply constituted “adoption of the [guardian’s] findings wholesale.” These arguments, however,
have no basis in the law or the record, as the circuit court’s findings were sufficient upon which to
base termination of petitioners’ visitation.
Critically, the circuit court in Meagan S. made no findings in regard to the factors set forth
in West Virginia Code § 48-10-502. Meagan S., 242 W. Va. at 456, 836 S.E.2d at 423. “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’” and further “did not state which
factors weighed in favor of or against grandparent visitation.” Id. This is in stark contrast to the
matter on appeal, where the circuit court enumerated all thirteen of the mandatory factors and made
thorough findings necessary to rule on the issue. See Turley v. Keesee, 218 W. Va. 231, 234, 624
S.E.2d 578, 581 (2005) (requiring that a court “must thoroughly evaluate how each factor applies
to the specific facts and allegations contained in the case before it”). While petitioners allege that
the court’s findings “express more feeling than analysis,” they premise this allegation on the fact
that the court based them “upon bias or historical information.” Essentially, petitioners take issue
with the weight the court afforded the evidence below by couching their arguments in terms this
Court has previously used to address insufficient findings in cases involving grandparent visitation.
See id. (“Merely restating the thirteen factors and tacking on to them the court’s ‘feeling’ that each
factor has been satisfied is not enough.”). Contrary to these claims, the court included detailed
findings and conclusions as to each factor, and petitioners’ disagreement with the court’s weighing
of the evidence cannot entitle them to relief. 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.”).
5
Petitioners raise a separate assignment of error in which they attack the lower court’s
failure to conclude that M.K. was an unfit parent for engaging in abuse and/or neglect of the child.
Although the circuit court entertained petitioners’ arguments in this regard, we decline to address
this assignment of error on appeal because the issue was not properly before the circuit court. As
the DHHR correctly points out in its response brief, no petition alleging abuse and/or neglect was
pending against M.K. at any time relevant to this appeal. See W. Va. Code § 49-4-601(a)
(providing, in relevant part, that “[i]f the department or a reputable person believes that a child is
neglected or abused, the department or the person may present a petition setting forth the facts to
the circuit court”). Accordingly, we decline to address petitioners’ arguments regarding alleged
abuse and/or neglect by M.K., as they have no bearing on the court’s ultimate decision to terminate
their visitation with the child.
4
While petitioners attack the basis for the court’s findings and application of certain factors,
it is, in fact, petitioners who have misapplied the facts and legal issues at play. For example, in
regard to factor ten, where the child resided, petitioners assert that the court “failed to take into
consideration that [p]etitioners had extensive visitation with the child,” thereby demonstrating
their own self-serving interpretation of that factor. Far from misapplying this consideration, the
court addressed the issue squarely presented therein. Petitioners also spend a significant portion of
their brief defending their hiring of a private investigator to obtain evidence in support of their
allegations that M.K. was unfit. What petitioners fail to recognize is that this fact clearly weighs
against them, as it evidences their extensive attempts to undermine M.K.’s parental relationship
with the child. While petitioners argue that the guardian invited them to provide specific
information to support their allegations against M.K., nothing in the record demonstrates that such
excessive and intrusive conduct was encouraged or approved. Indeed, petitioners represented that
they already possessed evidence of their claims and, when asked to produce this evidence, took it
upon themselves to involve a third party in the matter. In short, all of the court’s findings with
which petitioners take issue are based on similar displeasure with the ultimate outcome and do not
establish reversible error. On the contrary, the court properly concluded that petitioners’ visitation
would interfere with the parental relationship between M.K. and would not be in the child’s best
interest. See W. Va. Code 48-10-501 (“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.”). While petitioners argue
that their actions were taken out of context, it is difficult to believe there is a context in which a
court could find that a grandparent’s decision to baptize a child without involving a parent—or
much of the other conduct petitioners engaged in—does not undermine that parent’s relationship
with the child or run counter to the child’s best interests. Accordingly, the court did not err in
making these findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 24, 2022, order is hereby affirmed.
Affirmed.
ISSUED: October 25, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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