VISITATION OF CATHY LM v. Mark Brent R.

617 S.E.2d 866, 217 W. Va. 319
CourtWest Virginia Supreme Court
DecidedJuly 8, 2005
Docket31864
StatusPublished
Cited by22 cases

This text of 617 S.E.2d 866 (VISITATION OF CATHY LM v. Mark Brent R.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
VISITATION OF CATHY LM v. Mark Brent R., 617 S.E.2d 866, 217 W. Va. 319 (W. Va. 2005).

Opinions

PER CURIAM:

This is an appeal by Mark and Carla R.1 (hereinafter “Appellants”) from an order of the Circuit Court of Harrison County granting grandparent visitation rights to Cathy R.M. (hereinafter “Appellee”) and her husband, Robert M. The lower court held that grandparent visitation would not substantially interfere with the parent-child relationship and would serve the best interests of the child, Cassidy R. The Appellants, as the adoptive parents of Cassidy R., appeal the lower court's decision, contending that grandparent visitation was erroneously granted and that the best interests of Cassi-dy R. are not served by visitation with Cassi-dy’s biological grandmother, Appellee Cathy R.M. Upon thorough review of the record, briefs, arguments of counsel, and applicable precedent, this Court reverses the decision of the lower court and remands this matter for entry of an order denying grandparent visitation rights to the Appellee and her husband.

I. Factual and Procedural History

Cassidy R. was bom on February 13,1999, to biological parents Jasper R. and Shanna R. Cassidy’s biological father, Jasper R., is the Appellee’s son. The record reflects that the Appellee frequently visited with Cassidy during the first two and one-half years of Cassidy’s life, and Cassidy resided with the Appellee during many weekends and holidays during that period of time. In September 2001, Jasper R. and Shanna R., as biological parents, consented to the adoption of Cassidy by the Appellants. Appellant Mark R. is the biological uncle of Jasper R. and the biological great-uncle of Cassidy.2 The decree of adoption was entered by the Circuit Court of Harrison County on May 23, 2002. While the adoption was pending, the Appellants apparently determined that it was not in Cassidy’s best interests to continue a relationship with the Appellee. Thus, the Appellants did not permit the Appellee to have any contact with Cassidy after April 2002.

• In April 2003, the Appellee filed a petition with the Family Court of Harrison County seeking grandparent visitation based upon her biological relationship to Cassidy, the fact that she had been a significant care giver to Cassidy prior to the adoption proceedings, and the assertion that it would be in Cassi-dy’s best interests to restore a relationship with the Appellee. Guardian ad litem Ashley A. Lawson was appointed on October 21, 2003, and she submitted her report on December 4, 2003. In that report, Ms. Lawson recommended that the Appellants, as adoptive parents, should “have the sole determination of who [the adopted child] may spend time with-” Ms. Lawson recommended that grandparent visitation rights be denied.

On January 20, 2004, the Family Court Judge entered an order granting grandparent visitation rights to the Appellee. The Appellants appealed this ruling to the lower court, and that appeal was denied without hearing on February 17, 2004.3 They now appeal to this Court, contending that the family court erred in finding that visitation [322]*322was in the best interests of Cassidy; that the family court unjustly interfered with the rights of the adoptive parents in ordering-visitation over them objection; that the family court failed to apply the presumption that visitation privileges need not be granted; that the family court abused its discretion by failing to follow the guardian ad litem’s recommendations; and that the Appellee failed to justify grandparent visitation.

II. Standard of Review

This Court’s review of the issues presented is de novo. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

At common law, “grandparents possessed no legal light to custody or visitation of a grandchild over the parent’s objection. Syl. pt. 1, Brotherton v. Boothe, 161 W.Va. 691, 250 S.E.2d 36 (1978); Jeffries v. Jeffries, 162 W.Va. 905, 907, 253 S.E.2d 689, 691 (1979).” Petition of Nearhoof, 178 W.Va. 359, 361-62, 359 S.E.2d 587, 589-90 (1987) (footnote omitted). In 1980, the West Virginia Legislature enacted West Virginia Code § 48-2B-1 (1980) (Repl. Vol. 1992), the precursor to the statute which provides guidance in the present case. The 1980 grandparent visitation statute provided for grandparent visitation with the child of a deceased child of such grandparent. The Nearhoof Court recognized that this statute “change[d] the common law rule in West Virginia as to the right of grandparents’ visitation.” 178 W.Va. at 362, 359 S.E.2d at 590.

This Court explained as follows in syllabus point one of Nearhoof: “A trial court, in considering a petition of a grandparent for visitation rights with a grandchild or grandchildren pursuant to W.Va.Code, 48-2-15(b)(1) [1986] or W.Va.Code, 48-2B-1 [1980], shall give paramount consideration to the best interests of the grandchild or grandchildren involved.” This requirement has been sustained through all subsequent alterations to the grandparent visitation statute and is predicated upon the guiding principle that “[a] court, in defining a parent’s right to visitation, is charged with giving paramount consideration to the welfare of the child involved.” Syl. Pt. 1, Ledsome v. Ledsome, 171 W.Va. 602, 301 S.E.2d.475 (1983).

In Nearhoof, this Court encountered the issue of whether the grandparent visitation act, as written at that time, conflicted with the adoption statutes. The Nearhoof Court found that the principles expressed in the adoption and visitation statutes were not at variance with one another and, in so holding, observed that “had the legislature intended the adoption statute to limit the statute providing for grandparents’ visitation, the statutes could have reflected that intention.” 178 W.Va. at 364, 359 S.E.2d at 592 (citation omitted).

In addressing the parameters of the statutory authority granted by the grandparent visitation statute in Elmer Jimmy S. v. Kenneth B., 199 W.Va. 263, 483 S.E.2d 846 (1997), this Court found that despite the Legislature’s failure to include any reference to a situation in which a grandparent seeks visitation rights subsequent to the termination of parental rights, the statute afforded circuit courts jurisdiction to consider such grandparent visitation requests. This Court stated:

While W. Va.Code § 48-2B-1 et seq. is designated as the exclusive provision for grandparent visitation, it is silent with regard to grandparent visitation when the parental rights of the grandparent’s child (the parent of the grandchild) have been terminated. In addition, we are not aware of any statute expressly prohibiting grandparent visitation under such circumstances. Thus, following the Court’s reasoning in Nearhoof

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VISITATION OF CATHY LM v. Mark Brent R.
617 S.E.2d 866 (West Virginia Supreme Court, 2005)
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Bluebook (online)
617 S.E.2d 866, 217 W. Va. 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visitation-of-cathy-lm-v-mark-brent-r-wva-2005.