1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re W.R. Jr. and T.R.

No. 19-0319 (Berkeley County 17-JA-105 and 17-JA-106)

MEMORANDUM DECISION

Petitioner Grandmother D.C., by counsel Jared Adams, appeals the Circuit Court of 

Berkeley County’s March 6, 2019, order denying her motion for a set visitation schedule with the 

children.

1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel 

Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem, 

Michael Donadieu, filed a response on behalf of the children in support of the circuit court’s order. 

Respondent Father W.R. Sr., by counsel Debbie Flowers Payne, also filed a response in support 

of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit 

court erred in denying her motion for a set visitation schedule with the children. 

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. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

On October 7, 2017, the DHHR filed an abuse and neglect petition against petitioner 

alleging that she failed to properly supervise the children. Petitioner had previously been granted 

legal guardianship of the children while the parents served prison sentences for drug-related 

offenses.2 The parents were also listed as respondents in the petition and remained incarcerated at 

the time the petition was filed. Petitioner was granted a preadjudicatory improvement period, 

which she successfully completed. The parents were subsequently released from incarceration and 

became involved in the matter.

 

1Consistent 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). 

2Petitioner is the children’s maternal grandmother. 

FILED

September 13, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

In November of 2018, the children were transitioned back into the mother’s home after her 

successful completion of her improvement period, and petitioner’s guardianship over the children 

was terminated. Following the termination of her guardianship, petitioner moved for a schedule of 

visitation with the children. Petitioner requested that she be granted visits one weekend per month, 

one week each summer, and some time at Christmas and Easter. Subsequently, the circuit court 

held a dispositional hearing in the matter in which it dismissed the abuse and neglect petition 

against the mother, ordered that the multidisciplinary team (“MDT”) meet to discuss possible 

terms of visitation between petitioner and the children, and ordered petitioner and the children’s 

mother to engage in joint counseling.

On November 16, 2018, the circuit court held an evidentiary hearing regarding petitioner’s 

motion for visitation on a set schedule. First, the children’s therapist, Daysha Everheart, testified 

that the children expressed to her that they did not wish to have visitation with petitioner. Ms. 

Everheart also testified that the tension between the mother and petitioner negatively affected the 

children. Next, therapist Ruth Veach testified that she had taken preliminary steps to begin therapy 

with petitioner and the mother. Ms. Veach explained that she had met with petitioner and the 

mother separately, but that they had not yet commenced therapy. 

Petitioner testified that the children lived with her for several years and that she has a loving 

relationship with them. She further testified that she was willing to continue counseling with the 

mother. Petitioner also presented the testimony of her neighbor who testified that petitioner 

provided care for the children for approximately three years and had an affectionate and 

appropriate relationship with them. Finally, the mother testified that the children reported to her 

that petitioner yelled at them and was indifferent to them. According to the mother, the children

told her that they did not wish to have visitation with petitioner. At the conclusion of the hearing, 

the circuit court expressed that it was considering visitation at the mother’s discretion. However, 

the circuit court scheduled an additional review hearing to further address petitioner’s motion, to 

allow the children time to adjust to reunification, and to give the MDT additional time to meet and 

discuss the issue.

On February 5, 2019, the circuit court held a second review hearing to discuss petitioner’s 

motion for scheduled visitation with the children. Ms. Veach testified that since the prior hearing, 

she continued to meet with petitioner and the mother to discuss ways they could work together to 

benefit the children. However, Ms. Veach testified that despite these efforts, they were unable to 

make significant progress in improving their relationship. Further, Ms. Everhart testified that the 

children were adjusting well to reunification with their mother and were prepared for reunification 

with their father, who had successfully completed his improvement period. Ms. Everhart also 

testified that she spent a great deal of time with the children discussing their relationship with 

petitioner and their feelings about her. Ms. Everhart explained that she believed the children were 

sincere in voicing their lack of desire to visit with petitioner. She stated that the children feared 

petitioner would interfere with the reunification with their parents. Further, Ms. Everhart testified 

that the children recognize that petitioner had a strong dislike for their father and that was upsetting 

to them. Ms. Everhart opined that due to the continued hostility between petitioner and the parents, 

the stated desires of the children to not have visits with petitioner, and the children’s fear that 

petitioner may sabotage the reunification with their parents, visits between petitioner and the 

children should be left to the sole discretion of the mother.
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On March 6, 2019, the circuit court denied petitioner’s motion for a set schedule for 

visitation, finding such a schedule would not serve the children’s best interests. The circuit court 

found that petitioner “failed to participate in the Court Ordered counseling in rebuilding her 

relationship with her daughter and therefore she will likely impede the parenting in this case.” 

Further, the circuit court found that “[i]f the children ask to see [petitioner], the parents should not 

deny that relationship and the parents should attempt to make it a healthy interaction if they want 

to see her.” Finally, the circuit court ordered that any visitation “shall be at the sole discretion of 

the caregiver.” It is from the March 6, 2019, order that petitioner appeals.

The Court has previously established the following standard of review:

“Although 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 

Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). 

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court finds 

no error in the proceedings below. 

In her sole assignment of error, petitioner argues that the circuit court erred in not granting 

her motion for a set visitation schedule. In support, petitioner contends that a set visitation schedule 

is in the children’s best interests and would not interfere with the children’s relationship with their 

parents.3 We disagree.

 

3Petitioner also argues that the circuit court did not address all the factors identified in West 

Virginia Code § 48-10-502, which provides factors to be considered by the circuit court in its

decision whether to grant a grandparent visitation. These factors include as follows: 

(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; 
4

West Virginia Code § 48-10-501 provides that “[t]he 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.” 

Further, this Court has held that 

[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).

Syl. Pt. 3, In re Samantha S., 222 W. Va. 517, 667 S.E.2d 573 (2008).

Here, the children’s therapist testified that the children did not wish to visit with petitioner 

due to their fear that such contact would interfere with the reunification with their parents. The 

record shows that the children also disclosed to their mother that they did not wish to visit with 

petitioner. Additionally, the therapist testified that petitioner’s negative relationship with the 

parents also affected the children. Despite counseling, petitioner and the mother were not able to 

make significant progress to improve their relationship. Thus, the evidence supports the circuit 

court’s finding that a set schedule for visitation pursuant to petitioner’s requests was contrary to

the children’s best interests and would likely interfere with the parent-child relationship.

 

(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.

Id. Based upon a review of the record, the circuit court did consider the relevant factors and 

ultimately based its decision on the children’s best interests.
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Moreover, the circuit court granted petitioner visitation with the children “at the sole 

discretion of the caregiver” consistent with West Virginia Code § 48-10-702(b), which provides 

as follows: 

If a petition is filed pursuant to section 10-402, there is a presumption that visitation 

privileges need not be extended to the grandparent if the parent through whom the 

grandparent is related to the grandchild has custody of the child, shares custody of 

the child, or exercises visitation privileges with the child that would allow 

participation in the visitation by the grandparent if the parent so chose. This 

presumption may be rebutted by clear and convincing evidence that an award of 

grandparent visitation is in the best interest of the child.

(Emphasis added).

In the matter at hand, the mother has custody of the children and is free to provide petitioner 

with any contact with the children she believes is consistent with the children’s best interests. The 

circuit court advised the mother to allow petitioner to visit with the children if and when the 

children desire such visitation. Although petitioner presented evidence that she provided care for 

the children for several years, petitioner failed to prove that a schedule of visitation was in the 

children’s best interests. As discussed above, a set schedule of visitation was contrary to the 

children’s best interests due to their fear that contact with petitioner may threaten the reunification 

with their parents and because of petitioner’s negative relationship with the parents. Therefore, we 

find no error in the circuit court’s decision to deny petitioner’s motion for a set schedule of 

visitation, particularly in light of the fact that the children’s mother has the sole discretion to allow 

visits between petitioner and the children. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 

6, 2019, dispositional order is hereby affirmed.

Affirmed.

ISSUED: September 13, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman 

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison