667 S.E.2d 573
3. “A trial court, in considering a petition of a grandparent for visitation
rights with a grandchild or grandchildren . . . shall give paramount consideration to the best
interests of the grandchild or grandchildren involved.” Syllabus point 1, in part, In re the
Petition of Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987).
4. “'In a contest involving the custody of an infant the welfare of the child
is the polar star by which the discretion of the court will be guided.' Syl. pt. 1, State ex rel.
Cash v. Lively, 155 W. Va. 801, 187 S.E.2d 601 (1972).” Syllabus point 4, State ex rel.
David Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363 (1995).
Per Curiam: (See footnote 1)
This case presents for review the issue of grandparent visitation rights, which
stems from an underlying abuse and neglect case involving the biological parents. (See footnote 2) The
intervenors below and appellants herein, the paternal grandparents, Larry S. (See footnote 3) and Debra S.
(hereinafter “Larry” and/or “Debra” or “paternal grandparents”), were granted physical
custody of the subject children and have started the process to adopt them. (See footnote 4) Larry and Debra
appeal from an order entered June 28, 2007, by the Circuit Court of Mingo County. By that
order, the circuit court granted unsupervised visitation to the maternal grandparents, John T.
and Mabel T. (hereinafter “John” and/or “Mabel” or “maternal grandparents”). (See footnote 5) On appeal
to this Court, Larry and Debra argue that all of the evidence, including that submitted by
mental health experts, illustrates that visitation with the maternal grandparents is harmful to
the children and not in the children's best interests. Thus, the paternal grandparents seek the
reversal of that portion of the circuit court's June 28, 2007, order that allows unsupervised
visitation between the children and the maternal grandparents, and further ask that the
visitation rights of John and Mabel be terminated. Based on the parties' arguments, the
record designated for our consideration, and the pertinent authorities, we affirm that portion
of the June 28, 2007, circuit court order that is unrelated to the visitation rights of the
maternal grandparents, John and Mabel. Further, we reverse that portion of the June 28,
2007, circuit court order that allows unsupervised visitation by the maternal grandparents,
John and Mabel. Finally, we remand this case to the Circuit Court of Mingo County for entry
of an order terminating the visitation rights of the maternal grandparents, John and Mabel,
consistent with this opinion.
On May 8, 2006, a review hearing was held. The DHHR moved to terminate
the unsupervised visitation of John and Mabel on the grounds that the children were
experiencing significant difficulty and behavioral problems following visits with their
maternal grandparents. At an evidentiary hearing held on the motion, Dr. Pam Ryan, the
children's psychologist, testified that the unsupervised visitation with John and Mabel should
cease. Dr. Ryan explained that the unsupervised visitation was the direct stressor leading to
the children's problem behaviors. She testified that Hope disclosed that a boy in the
neighborhood, who was later found to be John and Mabel's grandson, repeatedly exposed
himself to her and that Mabel did nothing about it when Hope reported it to her. Dr. Ryan
further noted that John and Mabel had permitted, against court order, (See footnote 11) phone contact with
the children by Faye while she was incarcerated. Regarding Samantha, Dr. Ryan reported
that she had been hospitalized at Highland Hospital for seven days after she purposefully
killed a kitten by throwing it against a wall. Dr. Ryan found this behavior consistent with the
stabbing behavior that Samantha exhibited during play therapy. The circuit court further
heard testimony from a worker with Child Protective Services (hereinafter “CPS”), who
stated that she had prepared a protection plan in response to the allegations of the boy
exposing himself to the girls, but that John had refused to sign the plan. The CPS worker
recommended that unsupervised visitation be terminated. The court also heard testimony
from John and Mabel. John and Mabel's testimony minimized any unsettling behavior by
the girls, and denied any sexually inappropriate conduct by their grandson toward the girls.
The testimony by John and Mabel was very emotional and stated their desire to have the girls
in their lives.
Upon conclusion of the evidence, the circuit court ordered that unsupervised
visitation be stopped pending further order of the court and further psychological testing of
the grandparents. The circuit court also ordered a schedule of supervised visitation with John
and Mabel to commence and ordered additional psychological evaluations of Samantha and
Hope. The DHHR was granted legal custody of the girls to effectuate the adoption of the
children by Larry and Debra, in whose physical custody they remained. Finally, the circuit
court ordered the parties to return at a later date, after completion of the psychological
testing, for further discussion of what type or amount of visitation would be in the best
interests of the children.
The subsequent psychological evaluations agreed with the recommendations
of Dr. Ryan, and concluded that the children exhibited maladaptive behaviors likely to
escalate if they were not residing in a structured home with immediate consequences and
consistent support. The psychologist noted serious and concerning behaviors in Samantha
that might be reactive to the upheavals in her life. In evaluating the differing parenting
approaches taken by the grandparents, the psychologist noted that John and Mabel seemed
to minimize maladaptive behaviors of the children while Larry and Debra voiced concern and
attempted to obtain mental health treatment for the children. The psychologist further
expressed concern regarding John's adamant dislike of Samantha being prescribed
psychotropic medication and regarding Mabel's lack of concern surrounding the alleged
inappropriate behavior by her grandson which might lead to a failure to protect her
granddaughters from sexual abuse. The psychologist concluded that John would likely
continue to engage in negative behaviors, including speaking of the paternal grandparents
in very negative terms, without supervision during visits. This behavior would perpetuate
continued confusion in his granddaughters. It was also noted that the children's worst
behavior was always exhibited after visitation with John and Mabel, indicating the visits as
the significant stressor in the lives of the children. The psychologist stated that “[t]heir
[Samantha and Hope's] placement in an adoptive home where the severity of their potential
behaviors can be appreciated will be critical to their overall well-being and long-term
development.”
Another judicial review was conducted on June 28, 2007, to examine the
placement of the children and discuss the findings of the psychological report. The circuit
court found that continued placement of the children in the home of Larry and Debra was in
the best interests of the children and stated in its order that
[a]fter reviewing the Psychological Evaluations the Court
again FINDS that the children should be placed with [Larry and
Debra], as set forth in the Court['s] Final Dispositional Order.
The psychologist stated “the . . . children vacillating between
two homes with different attitudes, expectations, routines and
discipline can be very detrimental to their development.
Placement in an adoptive home where the severity of their
behavior is appreciated will be critical to their overall long-term
development. Specifically, Samantha is anticipated to flourish
most when her behavior is attended to, properly addressed and
consistently punished/reinforced. Failure on any adult's part to
recognize the potential threats this child has around others, as
well as animals, may result in future injuries. Throughout the
course of this evaluation and that of parental fitness assessments
also completed in our office, the [paternal grandparents, Larry
and Debra] have displayed a greater sense of awareness and
sincere appreciation of their granddaughters' problematic issues.
Their compliance with psychiatric treatment and counseling and
the initiation of immediate professional intervention in times of
crisis for Samantha have been evidenced.”
Further, the circuit court's order went on to state that
In regards to the [maternal grandparents, John and
Mabel,] the psychologists stated that although [their] intentions
with their granddaughters are well intended, [they] do not
appreciate how disruptive, confusing, and emotionally painful
it is for their granddaughters to be torn between grandparents all
the while trying to resolve their feelings about their own parents.
The psychologist stated that [they] refuse to accept the fact that
the children have serious problems and blame any problems on
[Larry and Debra]. The psychologist also stated that [the
maternal grandparents] would have problems educating the
children and providing for their emotional development.
However, despite these findings and against the advice of all of the mental health experts,
the DHHR, and the Guardian Ad Litem, the circuit court found that it “would be in the best
interests of the children to modify the previous dispositional order and to have unsupervised
visitation with the [maternal grandparents][.]” John and Mabel, the maternal grandparents,
were allowed unsupervised visitation with the children every other Friday from 6:00 p.m.
until 1:00 p.m. Saturday. The court made this finding without further explanation of its
reversal of supervised visitation, and in contravention of the unanimous recommendations
by all experts and by the DHHR that visitation with John and Mabel be terminated. The
current appeal to this Court was filed by Larry and Debra, the paternal grandparents, seeking
a reversal of the circuit court's order entered June 28, 2007, granting John and Mabel
unsupervised visitation.
The children's Guardian Ad Litem, Diana Carter Wiedel, has recommended
that the children remain with Larry and Debra and that they be adopted by them. (See footnote 12) She
further recommends that any visitation with John and Mabel be at the discretion of the
children and Larry and Debra, and with the approval of the children's psychologist.
Otherwise, she feels that it is unlikely that visitation with the maternal grandparents, John
and Mabel, is in the best interests of the children.
Subsequent to the filing of the petition for appeal before this Court, at the latest
judicial review conducted on September 24, 2007, the circuit court inquired into the status
of the case and was informed that the children continued to do well with Larry and Debra but
that John and Mabel had refused to exercise any visitation because they believed it was not
sufficient and was confusing to the children. John and Mabel were reported to have not seen
the children from the first part of June 2007 through the date of the review hearing. Upon
motion of the DHHR, the circuit court, by order entered October 12, 2007, terminated all
visitation due to lack of participation by John and Mabel. The court also continued
placement of the children in the home of Larry and Debra for finalization of the adoption.
John and Mabel did not appeal from this ruling terminating their grandparent visitation. (See footnote 13)
[a]lthough conclusions of law reached by a circuit court
are subject to de novo review, when an action, such as an abuse
and neglect case, is tried upon the facts without a jury, the
circuit court shall make a determination based upon the evidence
and shall make findings of fact and conclusions of law as to
whether such child is abused or neglected. These findings shall
not be set aside by a reviewing court unless clearly erroneous. A
finding is clearly erroneous when, although there is evidence to
support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn
a finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit court's
account of the evidence is plausible in light of the record viewed
in its entirety.
Syl. pt. 1, In the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Further, as a general guideline in light of the fact that this case requires us to review a
decision made on grandparent visitation, we have held that “'[t]his Court reviews the circuit
court's final order and ultimate disposition under an abuse of discretion standard. We review
challenges to findings of fact under a clearly erroneous standard; conclusions of law are
reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114
(1996).” Syl. pt. 1, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). Mindful
of these applicable standards, we now consider the substantive issues raised herein.
The June 28, 2007, order allowed visitation with John and Mabel “so long as
all previously ordered conditions are complied with.” However, the judge did not specify the
previous conditions to which he was referring. The only other conditions of record were the
specifications that the children, along with John and Mabel, be evaluated by psychologists
to determine if unsupervised visitation was proper. The psychologists concluded that
unsupervised visitation would not be in the best interests of the children. As a result, there
have been no conditions placed on the visitation with John and Mabel that would mitigate
the negative behaviors which affect the children.
Rule 15 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings provides that “the court shall consider whether or not the granting of visitation
would interfere with the child's case plan and the overall effect granting or denying visitation
will have on the child's best interest.” The evidence presented by the DHHR, Guardian Ad
Litem, two separate sets of psychological reviews, as well as the preferences of the pending
adoptive parents clearly shows that visitation with John and Mabel is not in the best interests
of the children.
Recognizing that visitation with the maternal grandparents is not in the best
interests of the children, we wish to make clear that the maternal grandparents' visitation
rights are permanently terminated. Statutory law recognizes the ability of the courts to
terminate grandparent visitation in accordance with the best interests of the child standard.
W. Va. Code § 48-10-1001 (2006) (Supp. 2008) states that “[a]ny circuit court or family
court that grants visitation rights to a grandparent shall retain jurisdiction throughout the
minority of the minor child with whom visitation is granted to modify or terminate such
rights as dictated by the best interests of the minor child.” In the present case, the visitation
rights of the maternal grandparents are terminated as dictated by the best interests of the
children, Samantha and Hope.
As a final matter, counsel for Larry and Debra argues that permanent placement
for these children has not occurred within eighteen months of the final dispositional hearing
as required by Rule 43 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings, which states that “[p]ermanent placement of each child shall be achieved within
eighteen (18) months of the final disposition order, unless the court specifically finds on the
record extraordinary reasons sufficient to justify the delay.” Arguably, the grandparent
visitation issue and the petition for appeal to this Court might justify some measure of delay;
however, we are mindful that “[c]hild abuse and neglect cases must be recognized as being
among the highest priority for the courts' attention. Unjustified procedural delays wreak
havoc on a child's development, stability and security.” Syl. pt. 1, in part, In the Interest of
Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Moreover, the stay of the adoption
proceedings pending the outcome of this appeal has delayed the fulfillment of the case plan
and the permanency of the placements of the children. In order to resolve this portion of the
litigation so that the paternal grandparents' adoption proceedings may proceed and the
children's permanent placement be finally achieved, the Clerk of this Court is directed to
issue the mandate in this case forthwith.