1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re Adoption of L.A.

No. 21

- 0 372 ( Hampshire County 20

- A

- 14 )



### MEMORANDUM DECISION

Petitioner s, Father J.A. and Mother N.W., by counsel Jeremy B. Cooper , appeal the

Circuit Co u rt 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, file d a response in support of the circuit court’s order. The child’s guardian, Lauren M. Wilson, filed a response in support of the circ uit court’s order. Petitioners filed a reply. On appeal, petitioner s argue that

the circuit court erred in permitting respo n dents and L.A. to have ongoing visitation following petitioner mother’s adoption of the child

.

This Court has considered the parti es’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process wou l d not be significantly aided by oral argument. Upon consideration of the governing law, the briefs, and the record presented,

the Co urt finds that the circuit court erred in granting respondents continued visitation with L.A. without making findings that d emonstrate a granting of substantial weight to petitioner s’ 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 Appellat e 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 i nvolved in this c ase. See In re K.H.

, 235 W. Va. 254, 773 S.E.2 d 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). Ad ditionally, because respondents share the same

initi als, we will r efer to them as B.M.

- 1 and B.M.

- 2, respectively, throughout this memorandum

decision. 

### FILED February 1, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 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 gran ted primary custody of the child, while the mother was permitted supervised visitation based on her past failures to follow the child’s d ietary restrictions, which resulted in health problems for the child. In that same order, the family court granted resp ondents visitation with the child for one weekend per month. However, the family court was clear that “visitation with [respondents] is t emporary and has occurred only because the mother’s time with the child is necessarily restricted.”

I n June of 2020, petitioners filed a petition for adoption. Petitioner father provided his

consent for the child’s stepmother, co

- petitioner herein, to a d opt 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, responden t s 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

w ere in agreement at the onset of the COVID

- 19 pandemic that visitation should be suspended, the visits remained suspend ed 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 hom e study of petitioners’

home and u l timately recommended that the adoption be granted. According to Cpl. Lahman, the child was “very happy and health y ,” the “residence was clean and suitable for the child,” and neither petitioner “had any known criminal hist ory or prior calls for law enforc e m ent 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. A ccording to the evidence, the mot h e r 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 fa iled to follow

medical advice con c e rning 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 concer ning her therapy with L.A. in whi c h she explained that L.A. initially presented with outbursts and anxiety

related to interactio ns with extended family. However, Ms. Jackson indicated that L.A.’s demeanor and attitude improved following restrictions on vis itation with respondents

necessit a t ed by the COVID

- 19 pandemic. According to Ms. Jackson, L.A. appeared to be more relaxed and express ed 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 t hings 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 o n her back and now it’s gone.”3 D u ring her testimony, Ms. Jackson corroborated the contents of her letter, indicat ing 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 wa s the cause of these issues, as the child expressed confusion over her visits with respondents. Specifically, “[o]ne particular incident th at caused [L.A.] trauma was hearing that [petitioners] would be getting a divorce which was not the case.” According t o 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 c ertain things that were said and how this secrecy had a negative impact

on the child and her behavior. Ms. Jackson also explained that be cause of the child’s dietary restrictions, she was always worried about what type of food she would be given during v i s its. According to Ms. Jackson, L.A. “talked about feeling not believed or trusted about her physical

health issues” when it came to visit s. 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 demonst r a ted by her increased laughter and happiness during sessions. According to Ms. Jackson, the child’s reported outbursts decreased after vis its with respondents

ceased. Despite Ms. Jackson’s extensive testimony about the effect of visitation on L.A., she

te s t ified that she did not have an opinion on whether visitation should be ongoing, “[o]ther than [L.A.] has talked about feeling better sinc e she has not gone.” Ms. Jackson followed this by clarifying that she “would [not] be getting in the truth or falsity o f the matter” for purposes of the hearing.

Petitioner father also testified and confirmed that L.A.’s behavior improved after visits

wi th respondents ended, which caused him to choose to deny them further visitation in the

child’s best interest. Petiti o n er 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 detai l e d other ways in which respondents interfered with his ability to parent the child, including respondents telling L.A. that she did not ha ve to listen to petitioner mother and fostering a rebellious attitude by telling the child that petitioners were wron g to ask her to behave. Petitioner father further acknowledged that visitation with respondents was generally a good experience, that respo ndents love L.A., and that L.A. loves them. The matter was ultimately continued.

In February of 2021, the parties ap p e ared for a final evidentiary hearing on the petition for adoption and respondents’ contempt issues. The court heard testimony from petiti oner stepmother, L.A.’s mother, both respondents, and the child’s guardian. Petitioner mother referred

to L.A. as an a n xious child who had suffered past traumas, but testified that L.A.’s behavior improved after visits with respondents ceased.4 Respondent grandmother testified to her relationship with L.A. According to the grandmother, before any of the extended court pr o c eedings involvi ng 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 get ting a di v o rce

.

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 c ontinue if the adoption were granted, subject to limitations regarding the biological mother.

U ltimately, 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 lif e would be

detrim ental 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. T he court then turned to respondents’ motion for visitation a nd 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 di fference in L.A.’s behavior

after visitation ended. T he co u r t 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 circums tances presented in this case caused by the coronavirus

pa n d emic,” 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 g uardian recommended continued visits between respondents a n d 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

- siblin g 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 comm unications, gifts, letters, phone calls, or any other

comm u n ication; (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 tha t petitioners appeal.

The following standard of review applies to matters s uch as these:

“In reviewing challenges to the finding s 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 th e Adoption of Jon. L.

, 218 W. Va. 489, 625 S.E.2d 251 (2005). Furth er,

“ [w] here the issue on an appeal from the circuit court is clearly a question of law or involving an5 interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 2, In r e Visitation of

A.P. , 231 W. Va. 38, 743 S.E.2d 346 (2013) (citation omitted) . We now turn to petitioners’

sp ecific 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 cont inuing. Upon our review , we agree, as the record contains no findings related to petitioners’ position concerning ongoing grandparent visitation. As we have explained,

“ i n light of the Troxe l decision it is clear that ‘ th e court must accord at least so me s pecial weight to the pa rent ’ 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, ne ithe r the order on appeal n or any transcript in the appendix record contain anything that show s the court afforded any weight, let alone special weight, to petitioners’ posit i on on continued vis itation.

Furthe r compounding th is error is the fact that the c ircu it 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 t h at “ [t] he Grandpare nt Visitation Ac t, W.Va. Code §

48

- 10

- 101 et seq. [2001], is th e ex clusive 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 W est Virginia C ode § 48

- 10

- 502,

In making a determ i nation on a mo tion 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 th e child ’ s paren ts or the person with whom

the child is residin g an d 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

a n d the child ’ s paren ts or the person with whom the c hild is re sidi ng; (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 hi s or he r parents, gi ving consideration to

such matt e rs as each par ent ’ 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 i n filin g the motion or petition; (9) Any history of physical, emot ional 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 p e riod o r periods of time, with or without the child ’ s parent o r pa rents; (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;6 (1 2 ) The preference of the parents with regard to the requested visi tation; 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 li m it ed 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 confu s in g, because the

co urt also found that the child’s counselor “obs erved 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 elabora t e on its conclusion that continued visitation with respondent s 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

vi s it ations with the g randparents negative ly impact ed her behavi or a nd 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 b o nd . Petitioners als o argue on appeal

that the cour t erred in find ing 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 t ha t 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 inte r es ts.

As we recen tly explained, “ when a

. . . co u rt is pres ente d 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, 83 6 S.E.2d 419, 422 (2 019). Further, we

stressed that the legisl atur e 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 l o wer court’s order “ did not include any specific an a lysis addr essi ng 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 awar d visitation to the grand p arents
was in the m inor child’s best interests. Id

. Important ly, 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 speci fic findings of fact rega r ding the grandparen t visitation factors in

W. Va. C ode § 48

- 1 0

- 50 2 [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 ord er granting grandparent visitatio n 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 appea l, we found in Meagan S. that in a d dition to

the failu re to address the specific thirtee n factors s et f orth 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 goi ng on to e xplain “why [m]othe r’s interest in making

decisions r e garding th e ca re 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 t he lower tribunals fa il to meet this standard

— i.e., m aking only gen eral, conclusory or inexact findings

— we must vacate the judgment and remand the case for further7 findings and development. ” Id. (quoting Province v. Province , 196 W. Va. 473, 48 3, 473 S.E. 2 d 894, 904 (1996 ) )

. In this matter, we must si m ilarl y vacat e the j udgment 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 Vir g inia Code § 48

- 10

- 5 0 2 and explaining what spec i al we ight ha s 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 eviden t iary hearings on the issue s on a ppeal.

Last ly, 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 pri o r vis itation awarde d 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 A pril 9 , 2021, order granting respondents ongoi n g vis itation with t he 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 th e Cler k is di rected 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 or der that awarded re s pondents visitation and, t h erefo re, pet itioner s are estopped from now asserting error in that order and in challenging their visitatio n generally . This argument is not compelling for several reasons, the most apparent b eing respondents’ immediate recognit i on that “[u]pon the adopti o n pro ceeding , the f ollowing matters regarding grandparent visitation were at issue: the [r]espondents’ pend ing petition for contempt, the [r]espondents’ motion to intervene in the adoption, an d the [r]esponden ts’ request for vis i tation to continue even if the a doption were t o be granted .” By their own admission, respondents make it clear that the question of wh ether they would be permitted additional visitation pending the adoption was

one to b e resolved in the order on appeal. A s such, it is clear that de s pite having never a ppealed from the family court’s prior order awarding temporary visitation with responden ts, the ultimate question of whether visitation would be permitted to continue post

- a doption was clear ly resolved

in the o rder on appeal and is, the r efore , appro priate for consideration in the current matter.

3 The order on appeal also terminated the biol ogical mother’s parental rights to the child and permitted petitioner mother to adopt the child. Nothi ng in this memorand u m decision should

be const r ued a s distu rbing t hose rulings, as those portions of the circuit court’s order are not

vacate d and remain in full force and effect.8 CONCURRED IN BY :

Chief Justice J ohn A . Hutchison

Justi ce Elizabeth D. Wal k er Justice Tim Armstead

J u stice Evan H . Jenki ns Justice William R. Wooton