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D.R. v. W.B.

Supreme Court of West Virginia

June 16, 2017

D.R. and M.R., Respondents Below, Petitioners
W.B., Petitioner Below, Respondent

         (Logan County 15-SAP-2-W and 15-SAP-3-W)


         Petitioners and paternal grandparents D.R. and M.R., [1] by counsel Christopher T. Pritt, appeal the February 23, 2016, order of the Circuit Court of Logan County that affirmed the issuance of a personal safety order that was sought by Respondent W.B., their former daughter-in-law, on behalf of herself and her minor son. Respondent W.B., appearing pro se, filed a summary response.

         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 with respect to the affirmance of the personal safety order to protect respondent and her child from petitioners. However, as more fully explained herein, the Court is of the opinion that the circuit court erred in affirming the issuance of the personal safety order in this matter inasmuch as the circuit court awarded relief to a non-party in the proceedings. Accordingly, this case satisfies the Alimited circumstances” requirement of Rule 21(d) and it is appropriate for the Court to issue a memorandum decision rather than an opinion.

         This case involves the issuance of a personal safety order, issued pursuant to West Virginia Code §§ 53-8-1 through -17, that was filed by respondent on behalf of her six year old son, to protect her and the child from contact by petitioners. Petitioners are the child's paternal grandparents. Respondent and D.R., Jr. (petitioners' son and the child's father), are divorced and both have remarried. The Family Court of Logan County previously awarded petitioners visitation with the child following the divorce, over the objections of both respondent and petitioners' son. However, upon the motion of respondent and petitioners' son, the family court terminated petitioners' visitation rights by order entered on May 14, 2014. Petitioners appealed the termination of their visitation rights to the circuit court, which refused their appeal by order entered on August 1, 2014.

         Respondent filed a petition for a personal safety order against petitioners in the Magistrate Court of Logan County on April 23, 2015. As the grounds for her petition, respondent stated as follows:

[Petitioner and grandfather D.R.] has come to my son's school trying to have lunch all while enticing him to come to his home.[2] I fear for his safety and well being. [The child] fears for his life and he is scared they are going to take him. He's afraid to go to school. He thinks he will never see me again. The school called and I had to get him. He was broken out really bad from his nerves and from being scared.

         The magistrate court issued the personal safety order against petitioners who responded with an appeal with the circuit court, which held a de novo evidentiary hearing on February 5, 2016. The parties appeared pro se. At the hearing, respondent testified, in relevant part, as follows:

[Respondent]: My son was at school and I had a phone call that I needed to come down to the school. I had gotten down there and he was broke out with a rash [3] and he was in principal's office. And [petitioners] had come down there trying to have lunch with him, well they had already lost their grandparent rights and wasn't supposed -
THE COURT: Where did they lose rights?
[Respondent]: Over in Family Court. And the Judge told them verbally, "Don't go to his school; it's fine if you go to his sporting events, but just don't bother him in school." Well they come down there anyways and so I had to go down there and I had to pick him up from school and he didn't want to go back to school anymore because he was afraid they were going to come down there. So that's why we went in and had the protective order put in because he said when they were there, they kept saying [to the child], "Yeah, I bet you want to come to Mimi and Poppie's house, " trying to entice him to want to go to their house. And he just doesn't want to because he's afraid that he wouldn't get to come back. That's what he has told me.

(Footnote added).

         In response, petitioner and grandmother M.R. testified that she recorded the entire visit at the school from the time they parked until they left the school. After cautioning petitioners about making surreptitious recordings, the circuit court attempted to listen to the twelve minute audio recording. Much of the recording was inaudible due to the number of students in the lunchroom. The recording, however, revealed petitioners checking into the school; locating the child in the lunchroom; offering the child chicken nuggets; telling the child that they will come to his ball games; questioning the child as to whether he is mad at them; and telling the child they love him.

         Petitioner's son, D.R., Jr., who appeared at the hearing in support of respondent, questioned petitioners as to why they would defy the family court's order prohibiting them from visiting the child at school. Petitioners denied that the family court imposed such a restriction on them. The circuit court received a copy of the May 14, 2014, "Order Terminating Grandparent Visitation" into the record. In that order, the family court notes that the guardian ad litem for the child recommended that Petitioner M.R. not receive any visitation with the child "until such time that she has obtained anger management counseling." The family court found that "the actions of [Petitioner M.R.] in confronting [D.R., Jr.'s, ] significant other while she was holding the infant child in her arms, confirms that the parents' objection to grandparent visitation was reasonable and warranted."[4] Furthermore, according to the guardian ad litem's report from the visitation proceeding, which is included in the appendix record in the current matter, respondent advised the guardian ad litem that petitioners "had repeatedly made derogatory comments to [respondent's child] about [respondent and D.R., Jr.], " and that Petitioner M.R. "had interfered with her relationship with her child and had verbally harassed her."

         By order entered on February 23, 2016, the circuit court affirmed the issuance of the personal safety order. The circuit court found that petitioners visited the child at school causing him to be upset, and that the best interest of the child required the ...

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