In re Grandparent Visitation of L.M., A.M., E.M., J.M., B.M. and S.M.

• Court: West Virginia Supreme Court
• Decided: June 8, 2021
• Docket: 20-0037
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED January 2021 Term June 8, 2021 _______________ released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS No. 20-0037 OF WEST VIRGINIA _______________

IN RE Grandparent Visitation of L.M., A.M., E.M., J.M., B.M., and S.M. ____________________________________________________________

Appeal from the Circuit Court of Nicholas County The Honorable Richard A. Facemire, Judge Civil Action No. 18-D-186

AFFIRMED ____________________________________________________________

Submitted: March 24, 2021 Filed: June 8, 2021

Todd A. Kirby, Esq. Jefferson L. Triplett, Esq. D. Allan Martin, Esq. George R. Triplett, Esq. Kirby & Ashley, L.C. Triplett & Triplett L.C. Beckley, West Virginia Elkins, West Virginia Counsel for Petitioner Counsel for Respondents

Julia R. Callaghan, Esq. Callaghan & Callaghan, PLLC Summersville, West Virginia Guardian ad Litem for the Children

JUSTICE ARMSTEAD delivered the Opinion of the Court.

JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.

CHIEF JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.

JUSTICE HUTCHISON dissents and reserves the right to file a dissenting opinion. SYLLABUS BY THE COURT

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.” Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803

(2004).

2. “An appellant must carry the burden of showing error in the judgment

of which he complains. This Court will not reverse the judgment of a trial court unless error

affirmatively appears from the record. Error will not be presumed, all presumptions being

in favor of the correctness of the judgment.” Syllabus Point 5, Morgan v. Price, 151 W.

Va. 158, 150 S.E.2d 897 (1966).

3. “‘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[labus] P[oint] 3, Lindsie D.L. v. Richard

W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003).” Syllabus Point 2, Meagan S. v. Terry S.,

242 W. Va. 452, 836 S.E.2d 419 (2019).

i 4. “The Grandparent Visitation Act, W. Va. Code § 48–10–101 et seq.,

is the exclusive means through which a grandparent may seek visitation with a grandchild.”

Syllabus Point 1, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013).

ii Armstead, Justice:

V.Y. 1 (“Petitioner”), the mother of the children at issue, appeals the Circuit

Court of Nicholas County’s 2 order affirming the family court’s order which crafted a

reunification plan with the goal of allowing grandparent visitation to C.M. and D.M.

(“Respondents”), the paternal grandparents of L.M., A.M., E.M., J.M., B.M., and S.M.

(collectively, “the children”).

Upon review of the record, hearing the arguments of counsel, and research

of the pertinent legal authorities, we conclude that Petitioner did not meet her burden to

demonstrate error and we therefore affirm the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and L.C.M. were married and the children were born of their

marriage. Sometime in late 2017 or early 2018, they separated and their final divorce

decree was entered on June 29, 2018. As a result of that divorce, Petitioner was granted

1 As this case is concerned with minor children, we will follow our long- standing practice of identifying the parties by their initials. See, e.g., State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 2 By Administrative Order of this Court entered on October 2, 2019, the request for voluntary recusal by the Honorable Stephen O. Callaghan, Judge of the Twenty- Eight Judicial Circuit, was granted and the Honorable Richard A. Facemire, Judge of the Fourteenth Judicial Circuit, was assigned to the Nicholas County Circuit Court to preside over this matter.

1 full custody of the children and L.C.M. was granted supervised visitation. By request of

Petitioner, visitation was supervised by L.C.M.’s parents, the Respondents.

During the visitation exchange on September 21, 2018, Petitioner’s father,

the children’s maternal grandfather, delivered the children to a parking lot in Craigsville,

West Virginia. L.C.M., along with his father, Respondent C.M., came at the appointed

time to exchange the children. During that exchange, and in the presence of all the children,

the maternal grandfather drew a handgun and shot L.C.M. L.C.M. died of his wounds at

the scene. Thereafter, the children witnessed their maternal grandfather turn the gun on

himself and commit suicide.

In the following weeks, there were two funerals. Petitioner did not allow the

children to attend either the service for the maternal grandfather or the service for L.C.M.

On October 5, 2018, one day prior to L.C.M.’s memorial service, Respondents filed their

petition for grandparent visitation in family court and sought an ex parte order requiring

the children to attend L.C.M.’s memorial service. The family court denied the ex parte

relief, appointed a guardian ad litem for the children, and scheduled a hearing on the

visitation petition for November 27, 2018. Due to a scheduling conflict, the matter was

rescheduled for January 14, 2019.

2 Prior to that hearing date, the guardian ad litem met with the children, the

children’s therapists, Respondents, and Petitioner. On January 9, 2019, 3 the guardian ad

litem filed a comprehensive report 4 recommending that Respondents be granted visitation

with the children. As the family court noted, “when the [guardian ad litem] filed her

comprehensive report, all of the [children’s] counselors were in agreement as to the

recommendation for the commencement of contact between [Respondents] and some of

the minor children in a therapeutic setting.”

The hearing in this matter took place over a ten-hour period on May 15, 2019,

during which the family court heard from thirteen witnesses, including the parties and the

children’s therapists. The next day, the family court discovered that its recording system

failed to memorialize the hearing. Thereafter, the family court sent a letter to all parties

explaining the situation and informing the parties “that its ability to make findings of fact,

conclusions of law and render a decision in this matter [was] not impacted.” A telephonic

hearing was held on May 29, 2019, to discuss the lack of an appealable record and the

3 On the same day, Brandon S. Steele, Esquire, filed a notice of appearance and a motion to continue in the family court on behalf of Petitioner. Because Mr. Steele was a member of the West Virginia Legislature, pursuant to the provisions of West Virginia Code § 4-1-17 (2005), he could not be compelled to appear prior to the conclusion of the legislative session. Thereafter, the family court rescheduled this matter for a pretrial hearing on May 6, 2019, and a final hearing for May 15, 2019. Mr. Steele does not appear as counsel before this Court. 4 The guardian ad litem’s report and her June 14, 2019 update were incorporated by reference into the family court’s final order.

3 parties agreed to submit proposed findings of fact and conclusions of law. The family court

directed the guardian ad litem to submit in writing “updated findings/recommendations to

her prior report, consistent with her in-court testimony.”

On July 8, 2019, the family court entered a substantial, highly detailed, and

well-reasoned thirty-nine page order establishing a reunification therapy plan requiring a

reunification therapist to recommend to the family court whether to grant grandparent

visitation to Respondents. 5 In that order, the family court applied the thirteen factors

enumerated in West Virginia Code § 48-10-502 (2001) regarding grandparent visitation,

found that Petitioner “is a fit parent, as defined by applicable law,” and gave special weight

to Petitioner’s preference that no visitation be had between Respondents and the children.

On the latter issue, the family court acknowledged the applicable law requiring it to afford

special weight to Petitioner’s preference regarding visitation stating in its orders, “[t]he

[c]ourt is required to give [the twelfth] factor ‘special weight.’ The [c]ourt believes that it

has given this factor special weight in rendering a decision.” The family court proceeded

to find that “[e]ven giving the twelfth factor ‘special weight,’ the [c]ourt finds by a

preponderance of the evidence that the totality of the thirteen (13) factors weigh[s] in favor

5 This thirty-nine page order contains one hundred and forty-four numbered findings of fact, followed by nineteen numbered conclusions of law. Many of these findings and conclusions include multiple subparagraphs. This Court appreciates and acknowledges the family court’s efforts in thoroughly analyzing the facts and law in this and its subsequent order. 4 of a grant of reasonable grandparent visitation.” 6 Importantly, the family court also found

that grandparent visitation was in the best interest of the children and that it would not

substantially interfere with the parent-child relationship.

As a part of its findings in its July 8, 2019 order, the family court established

a visitation schedule that detailed the responsibilities of the parties. In that schedule, the

family court required joint therapy sessions between Respondents and the children, and

required Petitioner to participate in therapy sessions with the children. 7 The family court

further adopted a graduated schedule starting with supervised visits with the children which

would progress into unsupervised overnight visits and visitation during the children’s

Christmas vacation from school, culminating in a full week of visitation during summer

recess from school. Importantly, the family court twice included specific 8 provisions

allowing for immediate review of its order:

If, any time after the first therapeutic family session, [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 well-being, counsel for [Petitioner]

6 “[T]he Legislature has gone to great lengths to enumerate the factors listed in W. Va. Code § 48–10–502. These factors should be clearly addressed in any family court order granting grandparent visitation rights.” Turley v. Keesee, 218 W. Va. 231, 234, 624 S.E.2d 578, 581 (2005). 7 The first two joint sessions were to be with L.M. only. B.M. and S.M. were to be added for the third session, while J.M. and E.M. were included in the fourth. Provisions were made to add A.M. to the sessions when counselors “determine[ed] the pace at which A.M. will be included.” 8 The two provisions differ in only minor respects. The substance of the two admonitions is exactly the same. We quote the first here. 5 may file a [m]otion detailing the same and the [c]ourt will schedule a prompt telephonic hearing. If a [m]otion is filed, all further therapeutic family sessions will be delayed pending a hearing.

The July 8, 2019 order also included a clear statement addressing the failure

of the family court’s recording system by granting all parties the right to seek

reconsideration of its order. Specifically, the family court stated:

Due to the lack of an appealable record, the [c]ourt will grant a hearing to any party upon the filing of a proper motion for reconsideration, for the purpose of making a record and presenting any testimony or evidence presented at the hearing on May 15, 2019.

(emphasis added).

After the family court ruled, Petitioner filed objections and moved for

reconsideration. The family court heard testimony on the motion for reconsideration on

August 26, 2019. However, instead of making a record of the evidence missing from the

May 15, 2019 hearing transcript, Petitioner offered the testimony of the children’s

therapists, Mary Lilly (counselor for A.M. and E.M.), Brittany Henderson (counselor for

J.M.), and Stephani Trent (counselor for L.M.) to explain why they no longer

recommended grandparent visitation. In its September 19, 2019 order from this seven-

hour hearing, the family court observed that in contrast to the initial report from the

guardian ad litem, “after hearing further testimony from all of the counselors . . all three .

. . clearly recommend against visitation at this time.” In that order, the family court granted,

in part, the motion for reconsideration. This seven-page order made certain changes to the

6 findings contained in the July 8, 2019 order. Particularly, the September 19, 2019 order

made significant changes to the previously established visitation schedule. Instead of

establishing grandparent visitation with a regimented schedule, this order required the

Respondents and the children to undergo reunification counseling and that future visitation

with L.M., J.M., B.M. and S.M. “shall be carried out in accordance with the

recommendations of the reunification therapist.” The family court further stated, “the

Court will defer to the discretion and recommendation of the reunification therapist as to

if and when and [sic] joint therapy sessions with the minor children and [Respondents] are

proper. The [family court] will schedule review hearings to monitor the minor children’s

progress.” The family court also excluded A.M. and E.M. from the reunification therapy,

allowing for future hearings on the question of visitation between those children and

Respondents. Therefore, in modifying its July 8, 2019 order, the family court changed

course and no longer ordered immediate grandparent visitation but established a

therapeutic process, which could possibly lead to grandparent visitation if recommended

by the reunification therapist. These two orders, taken together, constituted a roadmap by

which eventual grandparent visitation could be achieved. They also allowed Petitioner the

opportunity to request a halt of the reunification process by filing a good faith motion.

Petitioner appealed the decision of the family court to the circuit court, which

affirmed, stating:

The [f]amily [c]ourt conducted a meticulous analysis of the thirteen (13) statutory factors to consider before granting grandparent visitation, as set forth in [West Virginia] Code §

7 48-10-502. The [f]amily [c]ourt did give special weight and consideration to [Petitioner’s] preference that grandparent visitation not occur. However, in considering that factor, the [f]amily [c]ourt is not obligated to ignore all of the other factors present, and should consider the totality of the circumstances. The [f]amily [c]ourt found that there were eight (8) factors in favor of the visitation. Furthermore, the [f]amily [c]ourt took great pains to establish a counseling schedule for the children to facilitate the reunification visits with [Respondents]. The [f]amily [c]ourt made special provisions to accommodate the different needs of each individual child, and the [f]amily [c]ourt set out a process for the [f]amily [c]ourt and the [g]uardian ad [l]item to continue to monitor the progress of the children and the visits. The [c]ourt finds that the [f]amily [c]ourt did not err and did not abuse its discretion in its application of the law to the unique facts and circumstances of this case.

It is from the entry of the circuit court’s December 19, 2019 order affirming

the family court that Petitioner appeals.

II. STANDARD OF REVIEW

Review of family court decisions are governed by the following:

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.

Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Along with this

standard comes the fundamental principle that Petitioner must point this Court to an error

in the record to entitle her to relief. Rule 7(d) of the West Virginia Rules of Appellate

Procedure requires that “petitioner shall prepare and file an appendix containing ... [t]he

8 judgment or order appealed from, and all other orders applicable to the assignments of error

on appeal,” “[m]aterial excerpts from official transcripts of testimony or from papers in

connection with a motion,” and “[o]ther parts of the record to which the parties wish to

direct the Court’s attention.” W. V. R. App. P. 7(d) (emphasis added).

This requirement is expounded upon in Rule 10(c)(7) of the West Virginia

Rules of Appellate Procedure which requires that “[t]he argument must contain appropriate

and specific citations to the record on appeal, including citations that pinpoint when and

how the issues in the assignments of error were presented to the lower tribunal.” Under this

Rule, “[t]he Court may disregard errors that are not adequately supported by specific

references to the record on appeal.” As we have previously held,

An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.

Syllabus Point 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). Further, we

“will not consider an error which is not properly preserved in the record nor apparent on

the face of the record.” Syllabus Point 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1

(1997).

In this case, Petitioner’s citations to the record overwhelmingly consist of

citations to orders and pleadings filed below. As noted above, there was no record of the

May 15, 2019 family court hearing. However, the family court gave the parties the

9 opportunity to request another hearing “for the purpose of making a record and presenting

any testimony or evidence presented at the hearing on May 15, 2019.” No party took the

family court up on that extraordinary offer. Petitioner did ask for and receive a hearing on

August 26, 2019, on her motion for reconsideration. However, the only testimony offered

by Petitioner at that hearing and available for this Court to review consists of testimony

from the children’s therapists. Even after adducing this testimony, Petitioner does not cite

to or quote any portion of their testimony in her brief. Instead, she places substantial

reliance upon the family court’s orders despite having some record evidence to which she

could point.

Thus, Petitioner neither created a reviewable record for appellate review

when the family court gave her the opportunity to do so nor did she point to any evidence

adduced at the August 26, 2019 hearing in her filings with this Court. In fact, none of the

testimony offered on August 26, 2019, provided any helpful insight into the relevant

statutory factors. As noted throughout this opinion, that dearth of testimony makes it

impossible for this court to find error and is fatal to Petitioner’s appeal. Nevertheless, given

the gravity of the factual matters and to afford consideration of petitioner’s arguments

which are not affected by the absence of a reviewable record, we will proceed to address

petitioner’s assignments of error as asserted.

10 III. ANALYSIS

This matter contains some of the most heart-wrenching facts imaginable. Six

innocent children witnessed their father and grandfather die in a most terrifying manner.

At that moment, not only did the children lose their father but Respondents lost a son. With

this devastating background, the family court was tasked with the difficult duty of weighing

the interests of the children who have endured tremendous emotional hardship, their

Petitioner mother who has strived to help them move forward from this trauma, and the

Respondent grandparents who lost their son and all contact with the children.

As the family court found Petitioner to be a fit parent, we acknowledge that

the United States Supreme Court has recognized that the rearing of children is of

constitutional importance and that the preference of a fit parent regarding grandparent

visitation must be given significant weight. See Troxel v. Granville, 530 U.S. 57 (2000).

“‘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[labus] [Point] 3, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591

S.E.2d 308 (2003).” Syllabus Point 2, Meagan S. v. Terry S., 242 W. Va. 452, 836 S.E.2d

419 (2019).

In discussing the rationale of Troxel, this Court has observed that the Supreme Court “instructs that a judicial determination regarding whether grandparent visitation rights are appropriate may not be premised solely on the best interests of the child analysis.” [Visitation of] Cathy L.[(R.)]M. v. Mark

11 Brent R., 217 W. Va. 319, 327–28, 617 S.E.2d 866, 874–75 (2005). Rather, the evaluating court “must also consider and give significant weight to the parents’ preference, thus precluding a court from intervening in a fit parent’s decision making on a best interests basis.” Id.

In re Visitation of A.P., 231 W. Va. 38, 42, 743 S.E.2d 346, 350 (2013).

At common law, “grandparents possessed no legal right to custody or

visitation of a grandchild over the parent’s objection.” Petition of Nearhoof, 178 W. Va.

359, 361, 359 S.E.2d 587, 589 (1987) (cleaned up). Thus, our Legislature has created a

framework for grandparents to seek visitation. “The Grandparent Visitation Act, W. Va.

Code § 48–10–101 et seq., is the exclusive means through which a grandparent may seek

visitation with a grandchild.” Syllabus Point 1, In re Hunter H., 231 W. Va. 118, 744

S.E.2d 228 (2013). Under this Act, a “grant [of] reasonable visitation to a grandparent”

shall be made when two elements are satisfied: 1) “upon a finding that visitation would be

in the best interests of the child and [2)] would not substantially interfere with the parent-

child relationship.” W. Va. Code § 48-10-501 (2006). “[I]f a preponderance of the

evidence shows that visitation is in the best interest of the child,” grandparent visitation

“shall be granted.” W. Va. Code § 48-10-702(a) (2001).

To weigh a petition for grandparent visitation, our Legislature adopted

thirteen factors for courts to consider. See W. Va. Code § 48-10-502. These thirteen factors

are:

(1) The age of the child;

12 (2) The relationship between the child and the grandparent; (3) The relationship between each of the child’s parents or the person with whom the child is residing and the grandparent; (4) The time which has elapsed since the child last had contact with the grandparent; (5) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing; (6) If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child; (7) The time available to the child and his or her parents, giving consideration to such matters as each parent’s employment schedule, the child’s schedule for home, school and community activities, and the child’s and parents’ holiday and vacation schedule; (8) The good faith of the grandparent in filing the motion or petition; (9) Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent; (10) Whether the child has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child’s parent or parents; (11) Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent’s residence; (12) The preference of the parents with regard to the requested visitation; and (13) Any other factor relevant to the best interests of the child.

Id.

This Court has held that those provisions contemplate the special weight that

is constitutionally afforded a fit parent’s wishes in its twelfth factor. See State ex rel.

Brandon L. v. Moats, 209 W. Va. 752, 763, 551 S.E.2d 674, 685 (2001). We are mindful

that:

13 In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

In re Visitation of A.P., 231 W. Va. at 42, 74. S.E.2d at 350 (citation omitted). Although

we have never attached mathematical certainty to a fit parent’s parental preference, we

have noted that “in light of the Troxel decision it is clear that the court must accord at least

some special weight to the parent’s own determination provided that the parent has not

been shown to be unfit.” Id. (internal quotation omitted).

In this case, Petitioner first maintains that the family court and circuit court

infringed on her constitutional right to rear her children by not properly applying “special

weight” to her preference. We have previously ruled our Grandparent Visitation Act is

constitutional. See, Syllabus Point 3, Brandon L. (“The West Virginia Grandparent

Visitation Act, West Virginia Code §§ 48–2B–1 to –12 (1998) (Repl.Vol.1999) [recodified

in West Virginia Code §§ 48-10-101 to 48-10-1201 in 2001], by its terms, does not violate

the substantive due process right of liberty extended to a parent in connection with his/her

right to exercise care, custody, and control over his/her child[ren] without undue

interference from the state.”). However, that holding does not necessarily preclude us from

finding the application of the statute unconstitutional as applied to the facts of a particular

case. See Troxel, 530 U.S. at 75 (Washington statute unconstitutional as applied). Thus,

14 even though this Court has found the statute facially constitutional, it must still be applied

in a constitutional manner to comply with Troxel’s mandate.

To find such application constitutionally sound, three aspects of Troxel must

be met. First, a parent’s “fundamental liberty interest” in the rearing of their children must

be recognized because fit parents are presumed to act in the best interests of their children.

Id., 530 U.S. at 65. Second, given a parent’s liberty interest in childrearing, the state will

“normally” have no reason to question parental decisions. Id., 530 U.S. at 68. Troxel

emphasized that its ruling did not rest on a fit parent’s “normal” right to be free of state

intervention in parenting decisions, but instead rested on a “combination of ... factors.” Id.

530 U.S. at 68, 71. Third, the United States Supreme Court established that a fit parent’s

preference regarding grandparent visitation must be afforded the “special weight” we

discussed above. Id. 530 U.S. at 70. The trial court in Troxel failed to give “at least some

special weight” to the mother’s “determination of her daughters’ best interests.” Id. 530

U.S. at 69. This “special-weight” prerequisite is codified as factor twelve of our

Grandparent Visitation Act. As explained more fully below, the family court did place

significant weight upon Petitioner’s preference and determined that this factor weighs

against grandparent visitation.

Petitioner’s second argument is that the lower tribunals improperly applied

the thirteen factors contained in West Virginia Code § 48-10-502. Specifically, Petitioner

takes issue with the family court’s findings as to factors one, two, four, seven, nine, ten,

15 eleven, twelve, and thirteen. Respondents and the guardian ad litem respond that the lower

court gave special weight to Petitioner’s preference and that the thirteen factors were

properly balanced. We reiterate, however, that this case has an inadequate record and the

parties chose to forego the opportunity afforded them by the family court to supplement

the record in light of the absence of a recording of the May 15, 2019 hearing. With rare

exception, nearly all of Petitioner’s citations to the “record” are citations to the family

court’s orders themselves. For this reason, we are disinclined to disturb the findings of the

factfinder, particularly with regard to its credibility findings. We will now examine each

of the thirteen factors, in turn.

A. The Uncontested Factors

The parties agree with the family court’s rulings on factors three, five, six,

and eight. As there is no disagreement as to these factors, we will only briefly discuss them

here.

1) Factor Three – The Relationship Between Petitioner and Respondents

Prior to the shooting there was a good relationship between Petitioner and

Respondents. Nonetheless, because of the clear animus between Petitioner and

Respondents duly noted in the family court’s order, the family court determined this factor

weighed against visitation.

16 2) Factor Five – Effect On Relationship Between Petitioner and The Children

The family court weighed this factor against visitation mainly based upon the

concern that the animus among the parties would infect the relationship between Petitioner

and the children.

3) Factor Six – Custody and Visitation Between Divorced Parents

The family court found this factor to be neutral based upon the fact that

L.C.M. is deceased.

4) Factor Eight – Respondents’ Good Faith In Filing Visitation Petition

There was no dispute regarding the fact that the grandparent visitation

petition was filed in good faith.

B. The Contested Factors

As for the remaining factors, Petitioner challenges the family court’s rulings,

pointing this Court to the family court’s orders in support of her arguments. We cannot

say that the family court erred if Petitioner does not point us to evidence that refutes the

findings made by the family court. Petitioner’s failure to create a more comprehensive

record when offered the chance to do so, coupled with the lack of citation to evidence,

leads us to conclude that the family court did not err. Bearing that in mind, we now

17 examine the remaining factors, noting where Petitioner did not provide evidentiary support

for meaningful review.

1) Factor One – The Children’s Age

On September 21, 2018, 9 the children were the following ages: L.M., ten

years old, A.M., nine years old, E.M., eight years old, J.M., seven years old, B.M., three

years old, and S.M., one year old.

The family court found that this factor weighed “more heavily in favor of the

four” oldest children having visitation with Respondents but “it is important that the

younger siblings [B.M. and S.M.] be included in any visitation involving their siblings.”

Petitioner argues that because the children are of an age that they should be allowed to

express their own preferences, the family court erred by not giving any consideration to

their preferences, and that the age of the two youngest children militates against visitation.

Thus, Petitioner contends, this factor should be weighed against visitation. In support of

this argument, Petitioner cites only to two exhibits 10 in the record that are not orders or

9 This date is significant in that it is the date that the shootings took place and is the last date that Respondents saw the children. The instant petition was filed a mere fourteen days later. 10 These two exhibits are: 1) A Treatment Summary for L.M. dated May 8, 2019, and attached as Exhibit 1 to the guardian ad litem’s disclosure of documents and 2) A Treatment Summary for J.M. dated November 28, 2018, and attached as Exhibit 10, to the guardian ad litem’s report. Both documents were attached to pleadings below. 18 pleadings. Neither of these exhibits demonstrate the family court erred. Thus, we cannot

conclude that the family court was wrong in weighing this factor in favor of visitation.

2) Factor Two – The Relationship Between The Children and Respondents

The family court found this factor to weigh in favor of visitation. Similar to

the first factor, the older children had a more substantial relationship with Respondents

than the younger children. L.M. lived with Respondents on two occasions and most of the

children lived with them at least once. 11 Respondents served as babysitters for all the

children numerous times over the better part of a decade.

Petitioner argues that although Respondents babysat the children, such

babysitting was sporadic. Petitioner further argues that “the lack of communication”

between Respondents and the children since this litigation ensued weighs against visitation.

Thus, Petitioner urges, it was error to weigh this factor in favor of visitation.

In support of this argument, Petitioner again points to no evidence to support

her position. Every citation to the record relating to this point is to orders or pleadings. It

11 The July 8, 2019 family court order indicates that L.M. lived with Respondents for approximately two years after he was born in 2007. Specifically, when the other children resided with Respondents is unclear due to a lack of an appealable record from the May 15, 2019 hearing. However, the family court specifically found that L.M. “lived in [Respondents’] home on two (2) occasions” and that “most of the children lived with them on at least one occasion.” Petitioner could have clarified this issue during the August 26, 2019 hearing, but did not. 19 would have been a simple task to call a witness at the August 26, 2019 hearing to create a

record regarding the relationship between the children and Respondents. Yet, Petitioner

chose to focus solely upon the testimony of the children’s therapists at that hearing and

does not point us to anything specifically within that testimony to support Petitioner’s

position. The findings and conclusions of the family court were not effectively challenged

by Petitioner.

Thus, we cannot say that the family court was incorrect in weighing this

factor in favor of visitation. The family court found that Respondents’ relationship with

the children was shown to include periods of co-habitation and serving as primary

babysitters and Petitioner did not point to record evidence to refute those findings.

3) Factor Four – Time From Contact Between The Children and Respondents

There has been no contact between the children and Respondents since

September 21, 2018. Respondents filed their visitation petition only fourteen days later.

Included with the visitation petition was an ex parte request for the children to attend

L.C.M.’s memorial service, which was denied by the family court. Essentially, the family

court found that delays caused by the process should not be attributable to any action or

inaction by Respondents and weighed this factor in favor of visitation. Petitioner argues

that there has been a significant period since Respondents last saw the children and that

this factor weights against visitation.

20 In the matter of Michael C. v. Teressa D., No. 13-1077, 2014 WL 4930191

(W. Va. Oct. 2, 2014) (memorandum decision), the adoptive parents of the grandchildren

caused the matter to remain in litigation for much longer than necessary. See id. at *5.

Additionally, the circuit court failed to timely enter orders. See id. Ultimately, this Court

found that delays that were caused by a party or the court were not attributable to the

grandparents when considering this factor. See id. Although there is no evidence here that

any party was intentionally delaying the family court proceeding or that the family court

was slow to rule, we agree with the principle set forth in Michael C. that ongoing litigation

which “contributed to the lack of . . . grandparent visitation,” Id., should not be attributed

to Respondents. Thus, the family court correctly allocated this factor in favor of visitation.

4) Factor Seven – Time Available to The Children and Petitioner

The family court found the time available to the children and Petitioner to be

neutral but found such availability should be considered in fashioning visitation. Petitioner

argues that this factor should have weighed against visitation as there are many activities,

both school and extracurricular, that were not properly considered by the family court.

Petitioner also urges that the amount of notice needed for work schedules and the distance

and time associated with potential visitation should have tilted this factor against visitation.

Again, Petitioner points to nothing in the record to support this argument.

Neither letters between counsel nor the orders and pleadings filed below constitute

evidence to refute the family court’s findings. Petitioner could have offered testimony on

21 this subject at the August 26, 2019 hearing but did not. Thus, we cannot conclude that the

family court erred in finding this factor as neutral.

5) Factor Nine – Abuse by Respondents

There were no substantiated reports of Respondents performing, procuring,

assisting, or condoning any abuse or neglect on the children found by the family court.

There were allegations that Respondents and L.C.M. were “mean” to the children.

However, during L.M.’s first meeting with the guardian ad litem he made unsolicited

statements to the guardian ad litem that the other children were going to fabricate abuse

allegations. The other children did thereafter allege that they had been abused by

Respondents.

Petitioner argues that there were allegations of abuse by Respondents and

that Respondents “unfairly attempt[ed] to villainize” Petitioner which were both

overlooked by the family court. Thus, Petitioner contends this factor weighs against

visitation.

What Petitioner is essentially arguing is that the family court improperly

weighed the credibility of the witnesses before it. Again, to refute this finding, Petitioner

had the opportunity to offer testimony to establish any such abuse at the August 26, 2019

hearing. Instead, Petitioner merely cites to the family court’s order. Such argument is

insufficient to establish error since the family court was the trier of fact and had to weigh

22 the credibility of the allegations made by the children with the statement of L.M. See State

v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An

appellate court may not decide the credibility of witnesses or weigh evidence as that is the

exclusive function and task of the trier of fact.”). Thus, we cannot conclude that the family

court erred as to this factor.

6) Factor Ten – The Children Residing With Respondents

It was found by the family court that L.M. lived with Respondents on two

occasions and most of the remaining children lived with Respondents on at least one

occasion. Petitioner essentially argues that the times were itinerant and that the younger

two children did not spend as much time residing with Respondents as the older children.

Petitioner contends that the finding by the family court that this factor weighs in favor of

visitation was erroneous and that it actually weighs against visitation.

Once again, Petitioner only directs us to orders and pleadings to support this

argument. As in our discussion above, Petitioner could easily have offered evidence at the

August 26, 2019 hearing to establish precisely when the children did or did not reside with

Respondents. Petitioner’s argument requires specificity, but none is offered. Based upon

that, we cannot say that the family court erred in weighing this factor in favor of visitation.

23 7) Factor Eleven – Respondents as Significant Caretaker

The family court found Respondents provided care for the children whenever

needed, with two small windows of time as exceptions, and the children lived with

Respondents as noted in the factor ten analysis. Thus, the family court found this factor to

weigh in favor of visitation. Petitioner argues that occasional babysitting does not rise to

the level of a significant caretaker but offers no evidence to refute the family court’s

findings.

Because Petitioner again only cites to the findings of the family court and

points to no specific testimony to refute the family court, we believe the family court

correctly allocated this factor in favor of visitation. The family court found that

Respondents regularly babysat the children for the better part of a decade, that the children

lived with Respondents for varying periods of time, and that after Petitioner and L.C.M.

divorced, Respondents were supported by Petitioner as the party to supervise the children’s

visitation with L.C.M. Petitioner cites nothing to refute these findings.

8) Factor Twelve – Petitioner’s Preference

As discussed above, this factor must be given special weight and we believe

that the family court afforded such weight. First, we note that Petitioner 12 stated early on

12 We commend Petitioner on her efforts to protect the children considering the tragedy that they witnessed. In the face of extreme adversity, her efforts demonstrated (continued . . .)

24 in the proceedings that she was not against visitation. She clearly communicated to the

guardian ad litem that she believed the children should have visitation with Respondents

when they are ready and she allowed a letter from Respondents to be read to the children

during a therapy session. She also purchased cell phones for the older children and

programmed Respondents’ phone numbers into them to allow the children to contact

Respondents whenever they wanted. In fact, while L.C.M. was still living, Petitioner had

no problems with allowing Respondents to babysit the children and she insisted

Respondents supervise L.C.M.’s visitation with the children.

Later in the proceeding, Petitioner changed her position and clearly espoused

that she wanted Respondents to have no visitation with the children. Based upon this

change in position, the family court placed significant weight upon Petitioner’s change of

mind and found that this factor weighed against visitation. The parties agree that this factor

weighs against visitation. However, Petitioner vehemently argues that the family court did

not accord this factor the “special weight” it requires.

It is clear to us that the family court did attach the special weight required by

Troxel to Petitioner’s preference but, nonetheless, ultimately found in favor of

Respondents. As we have said:

unmatched love and compassion for the children. Following the shooting, she immediately enrolled them in therapy sessions and has strongly advocated for them throughout the process. Our affirmance of the lower tribunals should not in any way negatively reflect upon Petitioner. 25 A fundamental principle, properly gleaned from the scholarly writings and legal opinions reviewed by this Court, is that the pronouncements of Troxel do not predispose every case to an ultimate determination favoring the natural parent in a complete and conclusive manner. An assessment of the specific circumstances of each case is still required, and while the reviewing court must accord special weight to the preferences of the parent, the best interests of the child are not to be ignored and must be included as a critical component of the dialogue regarding visitation or custody.

In re K.H., 235 W. Va. 254, 265, 773 S.E.2d 20, 31 (2015) (internal footnote omitted).

Thus, we believe the family court did properly place significant weight upon

this factor. In its order, it stated that “[t]he [c]ourt believes it has given this factor special

weight in rendering a decision” and “[e]ven giving the twelfth factor ‘special weight,’ the

[c]ourt finds by a preponderance of the evidence that the totality of the thirteen (13) factors

weigh in favor of a grant of reasonable grandparent visitation.”

Further, in its September 19, 2019 order, the family court modified the

original visitation schedule established in its July 8, 2019 order. As a result of Petitioner’s

concerns, instead of a graduated visitation schedule as originally crafted, the family court

adopted reunification therapy as the keystone to allowing future visitation. Additionally,

the family court afforded the reunification therapist great deference in making

determinations regarding the progress of reunification. These changes clearly demonstrate

that the family court accorded special weight to Petitioner’s preference as required under

26 Troxel by not ordering unfettered grandparent visitation but requiring a reunification

therapist to determine if such visitation could be effectively accomplished.

9) Factor Thirteen – Other Relevant Factors In Best Interest of The Children

The family court found this factor to weigh in favor of visitation. This

finding stems from the family court’s concern that Petitioner would never encourage the

children to have visitation with Respondents. Further, given the acrimonious relationship

between Petitioner and Respondents, the family court doubted the children would ever feel

safe in expressing a desire for visitation. Thus, the family court found that in the best

interest of the children, this factor weighed in favor of visitation.

Petitioner essentially contends that these findings tread into Troxel territory

and that, because Petitioner does not want visitation, she is under no obligation to

encourage the children to engage in it. However, this factor is for the family court to weigh

information through the prism of what is in the best interest of the children and Petitioner

points to nothing but the family court’s orders for her position. Given that, we cannot say

that the family court erred, and we concur that this factor weighs in favor of visitation.

C. Testimony of The Children’s Therapists – August 26, 2019

Finally, we address Petitioner’s argument regarding the testimony of the

children’s therapists that the children do not want to visit with Respondents and that it was

their opinion that grandparent visitation was not in the children’s best interest. We agree

27 with Petitioner that this testimony was relevant. However, as noted above, Petitioner 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. Further, Petitioner has

not pointed us to where in the Legislative framework the testimony of the therapists should

be weighed.

It is clear that the family court gave serious and thoughtful consideration to

the therapists’ opinions. In fact, the family court used the therapists’ testimony as a basis

to modify the visitation plan from a regimented schedule to one in which the determination

of when, if ever, visitation would occur hinged upon the recommendation of the

reunification therapist. In its September 19, 2019 order, the family court required

Respondents and the children to undergo reunification counseling. The requested

grandparent visitation would only commence “in accordance with the recommendations of

the reunification therapist.” The family court deferred to the expertise of the reunification

therapist as to when joint therapy would commence and notified the parties of its intent to

conduct review hearings to monitor progress. Finally, the order excluded A.M. and E.M.

from the sessions, deferring any decision regarding visitation between them and

Respondents for another time. We believe the family court gave careful consideration to

the concerns of the children’s therapists and responded to those concerns to ensure the

children would not be subjected to grandparent visitation until recommended by the

reunification therapist.

28 Thus, the family court found, and we agree, that factors one, two, four, eight,

nine, ten, eleven, and thirteen weigh in favor of a grant of grandparent visitation. The sixth

and seventh factors were neutral. Factors three, five, and twelve weigh against a grant of

grandparent visitation. Therefore, the family court found eight factors were in favor of

visitation, two were neutral, and three were against, including the twelfth, which it gave

special weight. We have previously “emphasize[d] that the objection of a parent would

not serve to defeat a grandparent’s attempt to seek visitation in every instance.” Visitation

of Cathy L.(R.)M. v. Mark Brent R., 217 W. Va. 319, 328, 617 S.E.2d 866, 875 (2005)

(footnote omitted). This case represents one of those instances where weighing the thirteen

factors tipped the balance in favor of a reunification plan that could ultimately lead to

visitation. We believe Petitioner’s failure to cite to record evidence in support of her

position leads us to only one logical conclusion – that she failed to meet her burden of

showing the judgment below was erroneous. The family court’s order affords Petitioner’s

preference against visitation special weight in accordance with the holding in Troxel.

Moreover, the family court’s September 19, 2019 order does not immediately grant

grandparent visitation but instead requires reunification therapy, gives great deference to

the reunification therapist to determine the course of reunification, allows for an immediate

hearing if there is any negative impact on the children, and provides for review hearings to

monitor the children’s progress. Therefore, we cannot conclude that the family court erred.

29 IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s December 19, 2019

order affirming the family court’s establishment of reunification therapy as a means to

provide for future grandparent visitation.

Affirmed.