No. 20-0037- In re Grandparent Visitation of L.M., A.M., E.M., J.M., B.M., and S.M.
FILED
June 8, 2021
released at 3:00 p.m.
HUTCHISON, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
What disturbs me the most about this case—and the reason I dissent to the
majority’s decision—is that both the children’s wishes and the recommendations of their
therapists have been completely disregarded. At the final hearing in this matter, held on
August 26, 2019, Mary Lilly, therapist for A.M. and E.M.; Brittany Henderson, therapist
for J.M.; and Stephanie Trent, therapist for L.M. testified that the children did not desire to
have visitation with their grandparents. According to the family court’s final order, Ms.
Lilly testified that there was no relationship between A.M and E.M and the grandparents
and that court-ordered visitations would have a strong negative impact on A.M.’s
relationship with his mother and a moderately negative impact on E.M.’s relationship with
her mother. Ms. Lilly reported that progress had been made with the children during their
counseling sessions, but court-ordered visitation would likely cause regression. Similarly,
Ms. Henderson testified that court-ordered visitation would be harmful to J.M.’s mental
and emotional health. She explained that J.M. has nightmares and separation anxiety that
would likely increase with court-ordered visitation. Finally, Ms. Trent testified that L.M.
disclosed during his last session with her that he was not receptive to visits with his
grandparents at that time. Ms. Trent further testified that forced visitation could potentially
cause L.M. to suffer depression.
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All three therapists opined that forced visitation with the grandparents was
not in the children’s best interests. They also expressed concern that the grandparents
might try to inform the children of what they believed “really happened to their Father.”
The therapists’ concern was based on a letter written by the grandfather to the children
early in the proceedings in this case. That letter read as follows:
Hi kids I won’t waste my time asking you to call, I know mom
won’t let you. [A.M.] and [J.M.] I don’t know why you made
up stories about your Father and Grandma and I. 1 I am sure
you are being coached. [L.M.] I know you tell the truth and I
think E.M. does. I know you loved your Father. He was
executed in cold blood, I saw it. And I believe you know the
truth. I may never get to see you kids. But remember I love
you just like I love your Father, Uncle John and Aunt Kate.
Love Grandpa
(Footnote and emphasis added). As the family court acknowledged in its order, the
grandparents believe that the children’s mother “in some way encouraged the death of their
son.” However, no evidence was ever presented to the court to support that belief.
1
Three of the children, A.M., E.M., and J.M., reported to their therapists that the
paternal grandparents were “mean” and “whipped them.” Also, prior to the shootings,
A.M. alleged that his father hit him. None of the allegations were substantiated. The oldest
child, L.M., told a counselor that his siblings were making up the allegations and that
anything that occurred was a form of discipline, not physical or emotional abuse.
2
The grandfather’s letter was intercepted by the therapists and was never read
to the children. 2 As the therapists explained in their treatment notes, reading statements to
the children that their father was “executed in cold blood” and that they were being
“coached” would be detrimental to their well-being and mental status. Other treatment
notes of the therapists in the record indicate that one of the children expressed a desire to
“blow up” the county where the shootings occurred and to “knife his grandparents.” 3
Consequently, at the final hearing, the therapists expressed ethical and safety concerns
should the court allow the grandparent visitation to occur. The therapists were so adamant
that visitation was not in the children’s best interests that they advised the court that they
might elect to withdraw from the case should the grandparents’ petition be granted.
Given this evidence, I simply do not understand how any court could
conclude that it is in these children’s best interests to have visitation with their
grandparents. Yet, not only did the family court reach that conclusion, it further found that
the visitation would not substantially interfere with the parent-child relationship.
2
After these proceedings began, the grandparents began writing letters to the
children, which they gave to the guardian ad litem who then sent them to the children’s
therapists. With the mother’s consent, the first letter from both grandparents was shared
with the children. However, the grandfather’s letter, which arrived next, was not read to
the children, nor were any of the letters and cards that followed.
3
At the time of the father’s death, all the parties resided in the same county.
Immediately thereafter, the mother and the children moved to another county to avoid the
media and because of the mother’s fear for her own safety.
3
Remarkably, the family court made this finding while at the same time noting that “[t]his
Judge has never experienced the level of tension as between the parties in this case.”
None of this evidence was considered in the majority opinion. Inexplicably,
the majority summarily concluded that “the family court gave serious and thoughtful
consideration to the therapists’ opinions.” Slip op. at 28. However, the family court’s
order belies that conclusion. In its September 19, 2019 order, the family court made the
following finding:
After considering the testimony of the children’s
counselors, it is evident to the Court that the counselors are
advocates for their respective clients. Counselors may be
subject to certain ethical constraints that could prevent him/her
from making recommendations that are inconsistent with a
client’s wishes and/or desires. Consequently,
recommendations by a counselor may not always align with
what is in a particular child’s best interest.
I am completely astounded by the decision to disregard this kind of expert testimony, which
is routinely relied upon by courts. As a matter of course, the testimony of counselors and
therapists is critical in cases involving minor children. They interview the children; they
provide treatment; and they are in an excellent position to make a recommendation
regarding what is in their patients’ best interests. To suggest that these highly trained
professionals are incapable of making recommendations consistent with the children’s best
interests is absurd. Of course, therapists advocate for their patients, but they do so based
on their psychological assessments—not as a defense attorney would if his client were to
demand a particular course of action. Furthermore, therapists are required to make and
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regularly do make assessments and render opinions in court that do not always agree with
the desires of their patients or others. For the majority to not recognize the refusal of the
family court to consider the therapists’ opinions as clear error is inexcusable.
The same is true with respect to the complete disregard of the children’s
preferences. The family court found that the children were too young to state a preference.
However, the Grandparent Visitation Act 4 expressly provides for the consideration of the
children’s wishes and concerns. West Virginia Code § 48-10-601 (2001) plainly authorizes
“the court, in its discretion, [to] interview in chambers any or all involved children
regarding their wishes and concerns.” While the family court obviously did not exercise
its discretion to conduct such an interview, the children’s wishes were made known to the
court through their therapists’ testimonies and should not have been ignored.
In this instance, the children’s preferences were critically important because
of the circumstances that led to the filing of the petition for grandparent visitation. These
children witnessed an unspeakable tragedy. Not only were they forced to come to terms
with their father’s death and the manner in which he died that they witnessed, they suddenly
found themselves the subject of a tug of war between their grandparents and their mother.
Believing they knew what was best, the grandparents began this tug of war within days of
the horror witnessed by the children by trying to force them to attend their father’s funeral
4
W. Va. Code § § 48-10-101-to 48-10-1201.
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against their mother’s wishes. Indeed, at this early stage of the proceedings, the
grandparents were trying to force contact and demanding that these obviously traumatized
children be displayed in public without considering how they would react and without
giving their fit mother time to assess their needs and determine what would be best for
them. To disregard the children’s preferences under these circumstances further amplifies
the tragedy they have suffered.
In addition to considering the best interests of the children, our precedent
demands that a fit parent’s 5 preference with respect to grandparent visitation be afforded
special weight and consideration. As this Court has explained:
The mandates of Troxel [v. Granville, 530 U.S. 57
(2000),] require that the wishes of the petitioner, as a fit parent
presumed capable of rational choices concerning the
relationships to be enjoyed by her child, be accorded special
weight. As the Supreme Court stated in Troxel, there is a
“presumption that fit parents act in the best interests of their
children.” 530 U.S. at 69[.]
In re Visitation of A.P., 231 W. Va. 38, 43-44, 743 S.E.2d 346, 351-52 (2013). It is
generally recognized that “‘special weight’ indicates considerable deference.” Id. at 42
n.7, 743 S.E.2d at 350 n.7. While the family court purportedly gave special weight to the
mother’s preference, the final order is devoid of any substantive explanation as to why the
mother’s interest in making decisions regarding her children is outweighed by a continuing
relationship with the grandparents. It is obvious that no deference was given to the
5
The family court made a finding that the children’s mother is a fit parent.
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mother’s wishes. Rather, the mother’s belief that visitation with the grandparents was not
in the children’s best interests was simply dismissed based on the family court’s perception
that she was “attempting to poison the children’s relationship with the grandparents.”
There was, however, absolutely no evidence that the mother was improperly influencing
the children. Instead, the evidence was that the mother’s belief that visitation was not
appropriate at that time was based on the therapists’ opinions that any interaction between
the children and the grandparents would not be in their best interests. 6
Based on all the above, I believe that the petitioner mother more than satisfied
her burden of showing that the decision of the family court affording the respondent
grandparents visitation with her children is erroneous. Like the family court, the majority
has merely looked at the factors set forth in West Virginia Code § 48-10-502 (2001) and
concluded that those factors weigh in favor of visitation. While the statutory factors must
be considered, 7 the analysis does not end there. West Virginia Code § 48-10-501 (2006)
mandates that the necessary findings for a grant of visitation to a grandparent are “that
visitation would be in the best interests of the child and would not substantially interfere
with the parent-child relationship.” Despite overwhelming evidence provided by the
6
Notably, the mother is a medical doctor and is trained to treat post-traumatic stress
disorder.
7
See Meagan S. v. Terry S., 242 W. Va. 452, 456, 836 S.E.2d 419, 423 (2016)
(finding failure to make specific findings of fact regarding grandparent visitations factors
was clear error).
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children’s therapists that precluded these necessary findings, the family court determined
that it knew better and ordered grandparent visitation to commence with the assistance of
a reunification counselor. Without any analysis of the best interests of the children, the
majority has now upheld that decision because the mother “did not point to the actual
testimony gleaned from the therapists at the August 26, 2019 hearing but instead directed
us to the findings in the family court’s orders.” Slip op. at 28. To elevate form over
substance when the psychological welfare of children is at stake is not in the best interests
of anyone.
The majority’s decision in this case is contrary to the evidence in the record
and contrary to the law. While I understand the desire to allow grandparents to maintain
contact with their grandchildren and be a part of their lives, the health and the welfare of
the children must come first. “The best interests of the child[ren] must be given greatest
priority, and the rights of the child[ren] are superior to those of the grandparent[s] seeking
visitation.” Mary Jean H. v. Pamela Kay R., 198 W. Va. 690, 693, 482 S.E.2d 675, 678
(1996).
During oral argument in this case, the parties indicated that the first attempt
of the reunification counselor to facilitate visitation had failed. It is my hope that the
majority’s decision will not cause these children to be subjected to yet another failed effort
at forced reunification. Based on the record before this Court, the children are not presently
prepared to engage in yet more counseling with their grandparents. They need time on
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their own to heal and to decide when they are ready to see their grandparents again.
Unfortunately, because of the majority’s decision, the family court, the circuit court, this
Court, and worst of all the children have not seen the last of the proceedings in this matter.
Even though there has already been a failure of the proposed reunification, I foresee
continued demands for additional attempts. The courts and the parties will, in my opinion,
be locked in conflict for the foreseeable future because the majority has failed to recognize
that, in this case, ultimately the fit parent must be permitted to make good faith decisions
regarding her children. Troxel requires this outcome, and the future well-being of these
children demands it.
Accordingly, I respectfully dissent from the majority’s decision in this case.
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