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Meagan S. v. Terry S.

Supreme Court of Appeals of West Virginia

November 19, 2019

MEAGAN S., Petitioner
v.
TERRY S. AND KIMBERLY S., Respondents

          Submitted: October 30, 2019

          Appeal from the Circuit Court of Cabell County The Honorable Alfred E. Ferguson, Judge Civil Action No. 18-D-42

          Jennifer Ransbottom, Esq. Ransbottom Law Office Huntington, West Virginia Counsel for the Petitioner

          Sarah E. Dixon, Esq. Saad Dixon Law Offices PLLC Huntington, West Virginia Counsel for the Respondents

         SYLLABUS

         1. "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 abuse of discretion standard. We review questions of law de novo." Syl. Pt., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         2. "The Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth Amendment of the Constitution of the United States protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Syl. Pt. 3, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).

         3. "There is a presumption that fit parents act in the best interests of their children." Syl. Pt. 4, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).

          ARMSTEAD, JUSTICE.

         This matter involves a grandparent visitation petition filed by Respondent paternal grandparents, Kimberly S. and Terry S. ("Grandparents").[1] The family court granted Grandparents' petition for visitation over the objection of Petitioner mother, Meagan S. ("Mother"). The circuit court affirmed the family court's order.

         On appeal, Mother argues that 1) the grandparent visitation factors set forth in W.Va. Code § 48-10-502 (2001) weigh against visitation, and 2) the family court erred by failing to give special weight to her wishes concerning the care of her child. Upon review, we cannot properly assess these arguments because the family court failed to set forth sufficient findings of fact or conclusions of law explaining its ruling. Also, no evidentiary hearing was held in this matter. The only evidence presented during the proceedings below, and the only evidence in the record before us in this appeal, is a report from the guardian ad litem ("GAL"). We cannot conduct a meaningful review of the issues and factual disputes raised herein based solely on the GAL's report.

         Therefore, we reverse the circuit court's August 7, 2018, order affirming the family court's order. This case is remanded to family court for further proceedings consistent with our ruling herein.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         R.S. was born in 2013. Mother[2] and R.S.'s father, C.S. ("Father"), were married when the child was born. They divorced in 2017. One month after the divorce, Father died. In January 2018, Grandparents filed a petition for visitation in the family court. The family court appointed a GAL who conducted interviews with R.S., Mother, Grandparents, and R.S.'s paternal aunt. Thereafter, the GAL submitted her report to the family court.

         The GAL's report included the following information regarding her interviews with R.S. and Mother: 1) R.S. recalled visiting her Grandparents but said it had been a long time since she had been to their house; 2) Mother stated that the last contact R.S. had with Grandparents was in the summer of 2017;[3] 3) Mother reported that there had been tension between Father and his parents/Grandparents herein, and that Grandparents had limited contact with R.S. prior to Father's death; and 4) Mother had concerns about Grandparents' house.[4] The GAL's report included the following information regarding her interview with Grandparents: 1) they had only been alone with R.S. on one occasion; 2) they asserted that Mother was "controlling and would constantly glance into the room where [R.S.] was even while all of the parties were in the same house"; 3) they disputed the concerns Mother raised about their house; and 4) R.S. had never stayed overnight at their house.

         The GAL's report concluded that Mother and Grandparents did not agree on a number of basic facts about their relationship. The report provides "[m]any of the issues between the parties seem to be based on different recollections of events and impressions that may or may not have been intended." The report describes a number of "misunderstandings" that had occurred between the parties.

         Per the GAL's report, Grandparents requested "something along the lines of a shared parenting agreement with them having [R.S.] every other weekend and throughout the week sometimes." Mother "indicated that it is her preference that [Grandparents] have no visitation or contact with R.S." The GAL recommended that Grandparents receive limited visitation.[5] The GAL noted that

in the event that the Court does not award visitation to [Grandparents], it is highly likely that [R.S.] will be deprived of all contact with her father's side of the family where he is deceased and there is no indication that [Mother] has any intention of facilitating any contact between [R.S.] and her [Grandparents] or any of R.S.'s paternal family.

         The family court entered an order granting Grandparents' petition for visitation. The order makes a number of findings "[b]ased upon the testimony of the parties and the report of the [GAL]." (Emphasis added). However, the family court did not hold an evidentiary hearing in this matter. It appears that neither party requested that an evidentiary hearing be held. Further, the parties did not offer any factual stipulations. Thus, it is unclear what "testimony of the parties" the family court considered.

         The family court's order set forth the following rationale explaining why it granted the petition for visitation:

The Court finds that the recommendation of the [GAL] to award some visitation to [Grandparents] is in the best interest of the minor child and adequately takes into consideration the factors set forth in WV Code § 48-10-502. The Court finds that the child, now four years old, has a relationship with her paternal grandparents and no way to maintain any contact or relationship with the grandparents and other family members of her deceased father, outside of the parameters of an award of visitation in this Court based upon the strained relationship that now exists between [Grandparents] and [Mother]. The Court finds that the award of several visitations between [Grandparents] and the child throughout the year appropriately balances the child's interest in having a continued relationship with her grandparents and [Mother's] interest in making decisions regarding the care and control of her daughter.

         Mother appealed the family court's order to circuit court and requested oral argument. This request was denied based on the circuit court's conclusion that "[t]he record in this matter is sufficient to rule on the petition." We again note that the record in this matter only consists of the GAL's report.

         The circuit court affirmed the family court's order. The circuit court's order includes the following analysis: "There is no evidence that the Family Court did not consider these two competing interests [best interest of the child and Mother's opinion]," and "[t]here is no evidence that the Family Court did not ...


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