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Aldona B. v. Nicholas S.

Supreme Court of West Virginia

April 20, 2018

Aldona B., Respondent Below, Petitioner
v.
Nicholas S., Petitioner Below, Respondent

          (Preston County 15-D-122)

          MEMORANDUM DECISION

         In these consolidated cases, Petitioner Aldona B., [1] pro se, appeals two orders of the Circuit Court of Preston County. In the first order, entered February 10, 2017, the circuit court denied petitioner's motion to stay a January 31, 2017, final order entered by the Family Court of Preston County allocating parenting time between the parties with regard to their minor child. In the second order, entered May 11, 2017, the circuit court affirmed the family court's January 31, 2017, final order. Respondent Nicholas S., pro se, filed a response in support of the circuit court's orders. Petitioner filed a reply.

         The 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 that the appeal from the circuit court's February 10, 2017, order is moot and there is no substantial question of law and no prejudicial error with regard to the circuit court's affirmation of the family court's final order. For these reasons, a memorandum decision dismissing as moot the appeal in Supreme Court No. 17-0130 and affirming the circuit court's May 11, 2017, order in Supreme Court No. 17-0525 is appropriate under Rule 21 of the Rules of Appellate Procedure.

         The parties never married, but have a three-year-old child together. On May 14, 2015, the West Virginia Bureau of Child Support Enforcement ("BCSE") filed an action to establish the child's paternity at respondent's request. After the initial hearing, the BCSE no longer participated in the case; however, the parties continued the litigation. Genetic testing confirmed that respondent is the father of petitioner's child.

         Petitioner and the child have a very strong bond. Though respondent was present at the child's birth in December of 2014, [2] he has maintained only a limited relationship with the child since that time. According to the family court, "both parties have contributed to the limited relationship between [respondent] and the child, but as between the parties[, petitioner]'s actions in that regard have been far more significant." The family court found that petitioner "violated multiple orders providing [respondent] with unsupervised visits with the child." The family court concluded that "[t]he scope and extent of [petitioner]'s resistance to the efforts of this [c]ourt to establish a parenting plan for the parties' child and to allow [respondent] unsupervised time with the child is unprecedented in this [c]ourt's experience."

         Prior to the January 18, 2017, final family court hearing, respondent had a combination of supervised and unsupervised visits with the child with significant gaps of time in between some visits. Respondent's last visit occurred on October 9, 2016, and was supervised by Home Base, Inc. ("Home Base") at their office in Preston County. Supervised visitation was utilized not because of any need to protect the child from respondent, but only to reassure petitioner as respondent gained more experience with the child and to provide respondent with additional help to ensure that visitation began on a solid footing. As explained by the family court, a parent having less than full competence is often the case when the parent has had only "limited opportunities to parent in any significant way" and "[t]here was nothing presented to the [c]ourt that might cause it to conclude [respondent] lacks the capacity to appropriately parent a child given the opportunity." The family court concluded that "[t]here is no reason that the [c]ourt might conclude that [respondent] has ever not loved the child or not wanted to be a part of the child's life."

         The family court rejected petitioner's claim that respondent represented a danger to the child. The family court found that, despite petitioner's "efforts to [surreptitiously] record [respondent]'s interactions with the child, " she failed to present any "evidence that [respondent] has ever actually harmed or attempted to harm the child" and that respondent has "no criminal history involving violence."[3] Moreover, there was also no evidence that respondent had been the subject of a petition for a protective order or otherwise faced allegations of domestic violence. Though petitioner alleged that respondent was abusive towards her, "the only convincing evidence presented of that involved the episodes when he would lose his temper and yell or swear at [petitioner] for interfering with his pursuit of a relationship with the child." The family court found that, even during those disturbing incidents, respondent "never once physically attacked [petitioner] in any fashion." Finally, "[t]here is no reason to believe [that respondent] has ever acted in an inappropriate sexual manner toward the parties' child or any child for that matter." The family court noted that, though respondent admitted to viewing pornography on the internet, "there was no evidence presented that [respondent had] an interest in child pornography."[4]

         However, the family court noted that respondent was not "particularly helpful" in fostering a meaningful relationship between himself and the child because he acted "immature and irresponsible" on occasion. Most damaging to forming a bond with his child, respondent "appeared more focused on arguing with [petitioner] and other members of her family than fully exercising opportunities to spend time with the child." The family court concluded that respondent's efforts were "uneven and somewhat inconsistent, " but that he "persisted overall when other parents probably would have just given up in the face of the other parent's opposition."

         The Home Base worker who supervised two visits between the child and respondent and the two guardians ad litem ("GALs") appointed to represent the child's interests recommended that the development of a meaningful relationship with respondent was in the child's best interests. Notably, "[n]one of those objective witnesses believed [that] the child would be at risk of harm in [respondent's care."[5] Accordingly, the family court concluded that "it would be in the child's best interests for the child to have a meaningful and loving relationship with [respondent]."

         Though the family court did not condone petitioner's efforts "to impede a meaningful relationship between [respondent] and the child, " the court did not find those actions "a significant consideration" given the child's young age and strong bond with petitioner. Therefore, the family court concluded that it was not in the child's best interests to "disrupt the current relationship between [petitioner] and the child." The family court designated petitioner as having primary custodial responsibility for the child with "sole major decision-making authority" given the parties' dysfunctional relationship. With regard to the allocation of parenting time, the family court ruled as follows:

• Initially, respondent has weekly visitation with the child for two hours under the supervision of Home Base at their Preston County office. Completion of these four visits constitutes a prerequisite to respondent progressing to the next stage of visitation
• Respondent next has eight weekly visits with the child every Monday from 10:00 a.m. to 6:00 p.m. at the home of his mother. Respondent's mother is required to sign a note at the conclusion of each visit confirming that she was present. Completion of these eight visits under his mother's supervision constitutes a prerequisite to respondent progressing to the next stage of visitation
• After the completion of those eight visits, respondent's unsupervised visitation with the child occurs every Monday from 10:00 a.m. to 6:00 p.m. at any location respondent deems appropriate.
• Beginning August 1, 2017, respondent has overnight visitation with the child every week or, if respondent chooses, "something less than an every week visit" from Monday at 12:00 p.m. to Tuesday at 12:00 p.m. Respondent has to exercise his option for less frequent visitation in writing.
• Beginning January 1, 2018, respondent has overnight visitation with the child from Sunday at 12:00 p.m. to Tuesday at 12:00 p.m. When the child begins school, respondent's visitation will change to Friday at 6:00 p.m. to Sunday at 6:00 p.m. But, if the child is homeschooled, respondent's visitation remains on the Sunday to Tuesday schedule unless respondent chooses the Friday to Sunday schedule and provides petitioner notice of that choice in writing.[6]

         The parties agree that the family court's parenting plan has not been implemented because of petitioner's refusal to abide by the parenting plan.[7] Petitioner filed a motion to stay the family court's final order which the court denied by order entered February 7, 2017. Petitioner then filed a motion to stay the family court's final order in the circuit court which denied the motion on February 10, 2017. In Supreme Court No. 17-0130, petitioner appealed the circuit court's order denying a stay of the final order on February 14, 2017. Also, in No. 17-0130, petitioner filed a motion to stay the final order in this Court which denied the motion by order entered March 10, 2017.

         In the meantime, petitioner appealed the family court's final order to the circuit court. After holding oral argument on the appeal, the circuit court concurred with the family court's findings and affirmed its final order as the family court did not "abuse its discretion in the application of the law to the facts." In Supreme Court No. 17-0525, petitioner appealed the circuit court's May 11, 2017, order affirming the final order on June 12, 2017. By order entered February 15, 2018, this Court, on its own motion, consolidated Supreme Court Nos. 17-0130 and 17-0525 for consideration and decision.[8]

We review this family law matter under the following standard:
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, 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 ...

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