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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ROBERT D. AND SHELBY D., 

Petitioners Below, Petitioners

vs.) No. 23-ICA-316 (Fam. Ct. Monroe Cnty. No. FC-32-2022-D-51)

BRIAN M. AND ASHLEY M.,

Respondents Below, Respondents

MEMORANDUM DECISION

Petitioners Robert D. and Shelby D.1appeal the Family Court of Monroe County’s 

June 21, 2023, order granting Respondents’ motion to dismiss. Respondents Brian M. and 

Ashley M. filed a response in favor of the Family Court’s decision.

2 Petitioners filed a 

reply.3 The issue on appeal is whether the Family Court erred in granting Brian M. and 

Ashley M.’s motion to dismiss.

1 To protect the confidentiality of the juveniles involved in this case, we refer to the 

parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward 

Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

2 Petitioners are represented by John H. Bryan, Esq., and E. Raeann Osborne, Esq. 

Respondents are represented by Anthony R. Veneri, Esq. 

3 On January 23, 2024, Petitioners Robert D. and Shelby D. also filed a motion for 

leave to file a supplemental brief, which can more aptly be described as a notice of 

additional authority. Respondents Brian M. and Ashley M. filed a response opposing the 

motion. This Court granted the motion on January 26, 2024. In their motion, Petitioners 

Robert D. and Shelby D. asked this Court to consider the recent decision, In re Adoption 

of L.A., No. 22-0254, 2023 WL 7403556 (W. Va. Nov. 8, 2023) (memorandum decision), 

which notes that a circuit court must consider the factors outlined in the Grandparent 

Visitation Act when weighing a petition for grandparent visitation. Upon review, we find 

this case is inapplicable to the case at bar. As discussed more thoroughly below, Petitioners 

Robert D. and Shelby D. are unable to petition for grandparent visitation through the 

Grandparent Visitation Act due to the fact that the children have been adopted by nonrelatives. See Syl. Pt. 3, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013) (“The 

Grandparent Visitation Act contains no provision allowing a grandparent to file a postadoption visitation petition when the child is adopted by a non-relative.”).

FILED

February 8, 2024

C. CASEY FORBES, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the family court’s order is appropriate 

under Rule 21 of the Rules of Appellate Procedure.

Petitioners Robert D. and Shelby D. are the biological grandparents and former 

adoptive parents of the children at issue in the underlying adoption order. Sometime after 

their adoption of the children, Robert D. and Shelby D. sought new, younger adoptive 

parents for the children due to their advanced age. Respondents Brian M. and Ashley M., 

who are non-relatives, agreed to adopt the children. Counsel for Brian M. and Ashley M. 

prepared “Relinquishment and Consent” forms (hereinafter “consent forms”), which were 

signed by Robert D. and Shelby D. In the forms, Robert D. and Shelby D. acknowledged 

that they were voluntarily surrendering all parental rights to the children and believed the 

relinquishment and consent to adoption to be in the best interests of the children. Important 

to the issue on appeal, paragraph 4 of the consent stated as follows:

that we each state that I fully understand that by this relinquishment and 

consent, among the rights I will be relinquishing are any right of inheritance, 

all parental rights forever, as the parties have agreed that the right to visit or 

communicate with the said child has been agreed to by the adopting parents, 

as this is an open adoption, and we will continue to be grandparental figures 

. . . .

Neither Brian M. nor Ashley M. signed the form.

On July 3, 2017, the Circuit Court of Monroe County issued an Adoption Order, in 

which Respondents Brian M. and Ashley M. adopted one of the children, A.M. The 

Adoption Order contained only one sentence referencing Petitioners’ consent forms: 

And the Court, after inspecting the said petition and file, finds that there was 

no need for an additional home study to be completed as the child would 

remain in the petitioners’ home regardless of this proceeding and which 

home is in this Court’s jurisdiction, and the relinquishment and consent to 

adoption executed by the parents of the male child, Robert [D.] and Shelby 

[D.], which was executed on April 10, 2017, and is filed with this Court.

On November 8, 2018, the Circuit Court of Monroe County issued a second Adoption 

Order, in which Brian M. and Ashley M. adopted the second child, I.M. The adoption 

orders are nearly identical, and the Adoption Order for I.M. contained the same singular 

reference to the consent forms.
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On June 29, 2022, Petitioners Robert D. and Shelby D. filed a Petition for 

Grandparent Visitation with the Family Court. Robert D. and Shelby D. alleged that they 

agreed to Respondents Brian M. and Ashley M.’s adoption of their children based on an 

understanding and promise from Brian M. and Ashley M. that Robert D. and Shelby D. 

would be able to continue to play a fundamental role in the children’s lives. Robert D. and 

Shelby D. alleged that, after the adoption, Brian M. and Ashley M. began to restrict their 

contact with the children and Robert D. and Shelby D. asked the Family Court to grant 

specific periods of visitation, which they alleged were in the best interests of the children.

Respondents Brian M. and Ashley M. filed an answer and affirmative defenses on 

August 10, 2022, and filed a motion to dismiss on February 13, 2023. Brian M. and Ashley 

M. argued that Robert D. and Shelby D.’s Petition for Grandparent Visitation could not be 

granted because the same is prohibited by West Virginia Code §48-10-902 (2001)4and the 

Supreme Court of Appeals of West Virginia’s (“SCAWV”) holding in In re Hunter H.,

231 W. Va. 118, 744 S.E.2d 228 (2013).5 Robert D. and Shelby D. filed a response to the 

motion to dismiss on February 27, 2023. Brian M. and Ashley M. filed a reply.

By order dated June 21, 2023, the Family Court granted Respondents Brian M. and 

Ashley M.’s motion to dismiss. The Family Court found that the relevant policy regarding 

grandparent visitation in West Virginia is governed by West Virginia Code § 48-10-902 

and that, because Brian M. and Ashley M. are the adoptive parents of the children and are 

non-relatives, Robert D. and Shelby D. cannot seek grandparent visitation. This appeal 

followed. 

Our standard of review is as follows:

4 West Virginia Code § 48-10-902 provides: “If a child who is subject to a 

grandparent visitation order under this article is later adopted, the order for grandparent 

visitation is automatically vacated when the order for adoption is entered, unless the 

adopting parent is a stepparent, grandparent or other relative of the child.”

5 Pursuant to Syllabus Point 3 of In re Hunter H.,

Pursuant to W. Va. Code § 48-10-902 [2001], the Grandparent 

Visitation Act automatically vacates a grandparent visitation order after a 

child is adopted by a non-relative. The Grandparent Visitation Act contains 

no provision allowing a grandparent to file a post-adoption visitation petition 

when the child is adopted by a non-relative.

Id. at 118, 744 S.E.2d at 229.
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“In reviewing . . . 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., [in part,] Carr v. Hancock, 

216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., 248 W.Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. Nov. 

18, 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate 

court review of family court order).

On appeal, Petitioners Robert D. and Shelby D. argue that the Family Court erred 

in failing to recognize that the consent forms were enforceable agreements incorporated 

into the Adoption Orders which allowed for continued visitation between them and the 

children following the adoption. Robert D. and Shelby D. contend that the consent forms, 

particularly paragraph 4, are binding and carve out very clear grandparent 

visitation/communication rights that were intended to survive the adoption order. Robert 

D. and Shelby D. point out that counsel for Brian M. and Ashley M. authored the consent 

forms and claim that they were induced to sign the forms based upon promises of continued 

visitation with the children. According to Robert D. and Shelby D., the Family Court erred 

in dismissing the case based solely on the provisions of the Grandparent Visitation Act 

and, rather, should have considered whether an enforceable agreement existed. Robert D. 

and Shelby D. call into question the validity of the adoption order, arguing fraudulent 

inducement. Lastly, Robert D. and Shelby D. claim that the Family Court erred in failing 

to include specific findings of fact and conclusions of law in its final order as required by 

West Virginia Code § 48-10-801 (2001).6

Upon our review, we find no error in the Family Court’s decision to grant 

Respondents Brian M. and Ashley M.’s motion to dismiss. The Family Court properly 

found that Petitioners Robert D. and Shelby D. were not permitted to petition for visitation 

under the Grandparent Visitation Act. The Grandparent Visitation Act is the exclusive 

means through which a grandparent may seek visitation with a grandchild. Hunter H., 231 

W. Va. at 118, 744 S.E.2d at 229, syl. pt. 1. However, the Grandparent Visitation Act 

contains no provision allowing a grandparent to file a post-adoption visitation petition

when the child is adopted by a non-relative. Id. at syl. pt. 3. Accordingly, because Brian 

M. and Ashley M. are non-relatives who adopted the children, the only way for Robert D. 

and Shelby D. to prevail in this appeal is for them to demonstrate that they had an 

agreement with Brian M. and Ashley M. for continued post-adoption visitation. West 

Virginia Code § 48-22-704(e) (2001) contemplates that an adoption order may contain an 

6 Pursuant to West Virginia Code § 48-10-801 (2001), “An order granting or 

refusing the grandparent’s motion or petition for visitation must state in writing the court’s 

findings of fact and conclusions of law.”
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agreement for visitation or communication with the adopted child and that the court may 

hear a petition to enforce the agreement. Chapter 48 of the West Virginia Code does not 

define “agreement” in this context.

However, the Supreme Court of Appeals of West Virginia (“SCAWV”) addressed 

the issue of enforcing visitation agreements post-adoption in Murrell B. v. Clarence R., 

242 W. Va. 358, 371, 836 S.E.2d 9, 22 (2019) and specifically defined the term 

“agreement” for the purposes of West Virginia Code § 48-22-704(e). In Murrell B., the 

child at issue had been living with Clarence R. and Nancy R. for a period of time under a 

guardianship order before the paternal grandparents, Murrell B. and Linda B., sought to 

adopt the child. 242 W. Va. at 361, 836 S.E.2d at 12. Clarence R. and Nancy R. did not 

object to the adoption, and merely indicated at the final adoption hearing that they desired 

visitation. Id. at 362, 836 S.E.2d at 13. The circuit court entered an order granting Murrell 

B. and Linda B.’s petition for adoption. The final order did not specify that visitation 

between the child and Clarence R. and Nancy R. would continue post-adoption. No one 

challenged the adoption order, and it became final. Id. Subsequently, the parties quarreled, 

and Murrell B. and Linda B. significantly reduced Clarence R. and Nancy R.’s contact with 

the child. Id. at 363, 836 S.E.2d at 14. Clarence R. and Nancy R. filed a petition for 

modification of visitation with the circuit court, and the circuit court granted the petition 

on two bases: (1) that Clarence R. and Nancy R. were the psychological parents and, (2) 

visitation was in the child’s best interest. Id. at 364, 836 S.E.2d at 15. On appeal, the 

SCAWV reversed the circuit court’s order. 

In discussing whether the parties had an agreement for visitation that could survive 

the adoption, the SCAWV held that, 

an “agreement” for purposes of West Virginia Code § 48-22-704(e) (2015) 

is a manifestation of mutual assent between an adoptive parent(s) and a third 

party as to visitation or communication with an adopted child that is either 

stated in full in the final adoption order or explicitly referenced in that order 

and made an exhibit to it. All parties to the agreement must endorse the final 

adoption order and any agreement incorporated by reference. This holding 

comports with the common usage of the term “agreement” as well as its 

usage in § 48-22-704(e). It also safeguards the adoptive parent's right to the 

custody and control of his adopted child—a right that is equal to that of a 

biological parent and child.

Id. at 371, 836 S.E.2d at 22. Because the final adoption order did not state that the parties 

mutually agreed to continued visitation after the adoption became final, the SCAWV found 

that Clarence R. and Nancy R. were not entitled to continued visitation with the child and 

any visitation order was not enforceable. Id. at 372, 836 S.E.2d at 23.
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Here, contrary to Petitioners Robert D. and Shelby D.’s arguments, the consent 

forms do not constitute enforceable agreements as contemplated by Murrell B. 

“Agreement” in this context, as defined by Murrell B., requires that a manifestation of 

mutual assent between the adoptive parents and a third party with regard to visitation is 

either stated in full in the final adoption order or is explicitly referenced in that order and 

made an exhibit to the final order, and the final order and any agreement incorporated by 

reference must be signed by both parties. Here, the consent forms were not signed by Brian 

M. or Ashley M., nor were they incorporated into the final adoption order, stated in full in 

the final adoption order, or attached as an exhibit to the final adoption order. Simply put, 

there is no way the consent forms completed by Robert D. and Shelby D. can be viewed as 

an enforceable agreement for visitation under Murrell B. 

To the extent that Petitioners Robert D. and Shelby D. argue that they were 

fraudulently induced into signing the consent forms, West Virginia Code § 48-22-704(b) 

provides that “[a]n order or decree of adoption may not be vacated, on any ground, if a 

petition to vacate the judgment is filed more than six months after the date the order is 

final.” (Emphasis added). Moreover, 

Parental consent or relinquishment, whether given by an adult or minor, may 

be revoked only if:

. . . .

(2) The person who executed the consent or relinquishment proves by clear 

and convincing evidence, in an action filed either within six months of the 

date of the execution of the consent or relinquishment or prior to the date an 

adoption order is final, whichever date is later, that the consent or 

relinquishment was obtained by fraud or duress[.]

W. Va. Code § 48-22-305 (2001) (emphasis added). As such, if Robert D. and Shelby D. 

are now attempting to raise a fraud or duress argument, it is simply too late to do so.

Lastly, Petitioners Robert D. and Shelby D.’s argument that the Family Court failed 

to make sufficient findings of fact and conclusions of law is without merit. Pursuant to 

West Virginia Code § 48-10-801, “An order granting or refusing the grandparent’s motion 

or petition for visitation must state in writing the court’s findings of fact and conclusions 

of law.” Aside from simply stating that the Family Court erred in failing to make findings 

of fact or conclusions of law, Robert D. and Shelby D. do not explicitly explain their issue 

with the Family Court’s order. The order granting Respondents Brian M. and Ashley M.’s 

motion to dismiss contains findings of fact and conclusions of law that sufficiently support 

the Family Court’s conclusion. 

Accordingly, we find no error and affirm the Family Court’s June 21, 2023, order.
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Affirmed.

ISSUED: February 8, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr 

Judge Charles O. Lorensen 

Judge Daniel W. Greear