FILED
June 8, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0037 – In re: Grandparent Visitation of L. M., et al. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WOOTON, J., concurring:
I concur with the majority’s determination that petitioner mother failed to
establish that the family court below abused its discretion in ordering a therapeutic
reunification schedule aimed at establishing visitation with respondent grandparents and
the children. There is no question that this case presents heart-wrenching facts which are
set against the backdrop of adults who are at odds, but all of whom who love and desire to
protect and maintain meaningful relationships with these children. As a result, the family
court was faced with the unenviable task of adhering to its statutory obligations under the
Grandparent Visitation Act, West Virginia Code §§ 48-10-101 to -1201 (2001), while
navigating the intensely emotional positions of the parties. In that regard, I write separately
to respond to the dissenting justices’ unfounded accusation that the family court—and the
majority—has cruelly relegated these children to mandatory grandparent visitation in
contravention of all applicable law and without regard to their best interests.
What must first be disabused, however, is the contention that the family court
has ordered, and the majority sanctioned, “forced visitation” with respondents. In its initial
thirty-nine-page order, the family court painstakingly walked through the evidence
presented, undertook the required statutory considerations and made findings, and then laid
out a scrupulously designed reunification process potentially culminating in a counselor-
supervised contact schedule and ultimately, a phased visitation schedule. The order
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required respondents to jointly undergo three counseling sessions with a licensed counselor
specifically addressing appropriate conversations with the children and their proper role as
grandparents relative to decision-making authority. Petitioner was likewise required to
participate in a counseling session with the eldest children; concomitantly, the children’s
counselor (in the presence of the guardian ad litem) was to begin to “prepare the children
for reunification with their paternal grandparents in a therapeutic setting” with specific
assurances to the children that the process was not tantamount to “custody.” After this
required counseling, the reunification plan called for supervised contact “in a therapeutic,
family counseling setting” on a weekly basis; each child was to “phase-in” to the sessions
based on age. The involvement of the youngest, A. M., was deferred entirely to the
discretion and judgment of the counselors and guardian ad litem.
Upon scheduling of a fifth family counseling session, the family court
intended to schedule a review hearing to “consider the propriety of progressing visitation
outside a therapeutic setting,” with the caveat that “[a]s recommended by the GAL, contact
should proceed as quickly or as slowly as the children and their counselors feel comfortable
with.” (Emphasis added). The court anticipated “multiple” review hearings over the
course of several months. Only after completion of this process, “[w]hen it is determined
by the Court that unsupervised visitation is appropriate,” a phased visitation schedule was
to be implemented. As caveat to all of the foregoing, the family court twice in its order
stated that “if, any time, the [petitioner] has a good faith belief that any of the children are
adversely and/or negatively affected by the visit to the point that it is detrimental to their
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well-being,” the process would immediately cease and a hearing held. Notably, at the time
this order was entered, all of the therapists were in favor of visitation.
However, after entry of the initial order, the family court heard additional
testimony from three therapists who then no longer recommended visitation 1 and, as a
result, dramatically scaled back the already tentative reunification plan. In lieu of
scheduled joint therapy sessions, the court substituted separate family counseling sessions
for respondents and the children, stating that it would “defer to the appointed reunification
therapist’s recommendation as to the proper frequency of these visits.” As to whether joint
therapy would ensue at all, the court stated it would “defer to the discretion and
recommendation of the reunification therapist as to if and when [] joint therapy sessions
with the minor children and the [respondents] are proper.” The court maintained its
intention to conduct periodic review hearings but unequivocally withdrew any order of
visitation and stated that any such future visitation “shall be carried out in accordance with
the recommendations of the reunification therapist.” Notably, the family court further
specifically excluded the two youngest children from this process and ordered that their
visitation with respondents would be addressed “at future hearings.”
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These vacillating opinions alone demonstrate the difficulty presented by this case.
The divided vote of this Court reflects similarly. Therefore, to characterize the outcome of
this case as being callously indifferent to the best interests of the children and patently
wrong demonstrates an unforgiving assessment of the complexity of this case.
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Despite this meticulous, thorough, and thoughtful reunification plan by the
family court, at least one dissent purports to be “astounded” by the majority’s
“inexcusable” affirmance of the plan. The dissenting justices accuse the courts below and
the majority of ignoring the opinions of 1) the children’s therapists; 2) the children
themselves; and 3) petitioner, an otherwise fit parent—all in direct contravention of
statutory law and United States Supreme Court precedent. However, nothing could be
further from the truth. In fact, it is the dissenting opinions which afford these three pieces
of evidence improper weight and in so doing sends a confounding message regarding our
statutory guidance and caselaw.
First, the dissenting justices accuse the majority of ignoring the opinions of
the children’s therapists that visitation was not in the children’s best interests. As a
threshold matter, the majority correctly observes that “expert opinions” are nowhere
contained within the statutory factors to be considered by the court as set forth in West
Virginia Code § 48-10-502. To therefore give the therapists’ opinions seemingly
dispositive weight, as do the dissents, is completely outside of the statutory construct.
Further, none of these therapists were court-ordered experts; rather, they were privately
retained healthcare providers who commendably and properly advocated for what their
professional judgment suggested was the most cautious course for their clients. However,
to suggest that the court must necessarily comply with the consensus of privately retained
mental health professionals would be a complete abdication of a court’s role in these
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matters and render the statutory factors irrelevant. 2 Were such opinions entitled to
extraordinary weight, the Legislature would have, at a minimum, included expert opinions
as a specifically delineated factor under West Virginia Code § 48-10-502. Were their
opinions dispositive, as the dissents suggest, the Act would undoubtedly direct a family
court to make a referral and await the therapist’s verdict on whether visitation should occur.
More importantly, however, the dissenting justices’ position that the
therapists’ testimony was disregarded is utterly meritless. It is precisely because of the
therapists’ wavering testimony that the family court amended its initial reunification
process with settled visitation increments, in lieu of a deferential reunification process, as
laid out in detail supra. The order on appeal places the decision of “if and when” the
children and respondents engage in joint therapy entirely to the reunification therapist.
(Emphasis added). Most significantly, it defers the ultimate issue of visitation almost
entirely to the judgment of the reunification professional, ordering that visitation “shall be
carried out in accordance with the recommendations of the reunification therapist.”
(Emphasis added). In so doing, after considering the weight of the statutory factors which
clearly favored visitation, the family court did exactly as the dissents insist: deferred the
2
By no means do I suggest, however, that these professionals were “hired guns.”
Rather, as the family court determined based upon testimony elicited from the therapists,
they were obligated to advocate for their clients, unconstrained by required statutory
considerations which go well beyond the subjective wishes of minor children and reflect
the Legislature’s attempted balance of competing rights and interests.
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logistical handling of whether and how visitation is to ensue squarely within the seasoned
judgment and supervision of an expert, the court-appointed reunification counselor.
Next, the dissenting justices grossly oversimplify the weight to be given to
the wishes of the children and a fit parent, one dissent suggesting their unified preference
must prevail and stating that “ultimately the fit parent must be permitted to make good faith
decisions regarding her children.” If this were the law, there would be no need for
grandparent visitation litigation at all. When grandparent visitation litigation ensues, there
is already a conflict between a parent and the grandparents, by definition. The children,
depending on their ages, likely have a position on visitation aligning with one party or the
other. Under the dissenting justices’ approach, whichever party the children favor is the
victor. Here, because petitioner and the children were against visitation, one of the dissents
concludes their preferences were necessarily ignored—a conclusion that ignores the fact
that the statutory factors the family court was required to consider overwhelmingly weighed
in favor of visitation. According to the dissenting justices, should the party with whom the
children side hire an expert who advocates for their position, the matter is definitively
closed. None of this comports with the statutory requirements or the law on parental
preference.
Primarily, however, the dissenting opinions simply misunderstand the role
the statutory factors contained in West Virginia Code § 48-10-502 serve in determining the
best interests of the child. Both dissenting opinions cavalierly and summarily declare the
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majority to be apathetic to the children’s best interests on the one hand, yet on the other
hand, entirely disregard the statutory factors which are expressly designed to inform the
determination of their best interests. The statutory factors are not merely a punch list
serving as window dressing for a court order which ultimately rules in favor of whatever a
parent and children want. Rather, the factors endeavor to provide objective information—
based on prior relationships, course of conduct, and the behaviors and abilities of the
parties—which creates a sliding scale designed to measure the benefit of grandparent
visitation to a child’s best interests. Should these factors demonstrate by a “preponderance
of the evidence” that visitation is in the best interest of the child, the court is obligated by
law to grant it. See W. Va. Code § 48-10-702 (2001).
A litigated grandparent visitation case comes prefabricated with conflict.
The statutory factors so casually disregarded by the dissents aim to remove the blurring
effect of the parties’ complex relationships and interests; they seek to guide consideration
of a child’s best interests relative to a continued relationship with his or her grandparents.
Nothing in our statutory scheme permits a court to disregard these factors altogether and
make a determination based upon the greater weight of the parties’ biased preferences, all
under the auspices of the predominating “best interests.” Rather, the factors are to be
utilized to create a fuller understanding of the parties’ historical relationships and present
abilities, free from the bias of the litigants, with the ultimate goal of an impartial arbiter
determining what is likely in a child’s short-term, long-term, and large-scale “best
interests.”
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In the same breath that the dissenting justices accuse the majority of giving
the statutory factors too much weight, they afford them exactly none. In accusing the
majority of giving a fit parent’s preference no weight, the dissents lend it dispositive
weight. In vilifying the family court and the grandparents for presumptuously deciding
they “knew better” what was in the children’s interests, the dissents do precisely the same.
It is exactly this type of case for which our standard of review was designed, allowing the
lower courts with first-hand observations and interactions with the affected parties to make
carefully discerned determinations and create remedies which best serve complex familial
relationships, all in compliance with applicable law. The dissents do nothing more than
denigrate the undeniable care with which the family court handled this most delicate matter
and seek to substitute their own “better” judgment in a case they view strictly on a cold
record, from arms-length.
Accordingly, I concur in the majority’s affirmance of the family and circuit
courts’ orders.
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