In re A.D. and J.D.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

February 7, 2020

In re A.D. and J.D. EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 19-0554 (Randolph County 2018-JA-097 and 2018-JA-098)

MEMORANDUM DECISION

Petitioners K.B. and P.B., by counsel Steven B. Nanners, appeal the Circuit Court of

Randolph County’s May 16, 2019, order denying their motion for visitation with the children.1

The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee

Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem, Heather

M. Weese, filed a response on behalf of the children in support of the circuit court’s order. On

appeal, petitioners argue that the circuit court erred in denying their motion to continue the

hearing on the issue of visitation and denying their motion for visitation with the children.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court finds no substantial question of law and no prejudicial error. For these

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

In November of 2010, petitioner K.B., the children’s grandmother, was granted

guardianship over the children by the Randolph County Circuit Court in case number 10-FIG-3.

In August of 2018, the DHHR filed a child abuse and neglect petition against petitioner K.B. The

DHHR alleged that petitioner K.B. was physically and emotionally abusive toward the children.

Specifically, the children reported several instances in which petitioner K.B. smacked them in

the face. A.D. reported that the instances often occurred when the children did not perform a task

to petitioner K.B.’s liking. J.D. also reported an instance in which petitioner K.B. smacked him

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.

Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419

(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles

L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

1

in the knee with a broom when he did not sweep the floors correctly. Petitioner K.B. waived her

preliminary hearing.2

At an adjudicatory hearing held in February of 2019, petitioners relinquished their

guardianship rights to the children. Full legal and physical custody of the children was restored

to their father. Petitioners requested visitation with the children. The circuit court ordered the

children’s therapists to provide a “written report outlining any concerns regarding visitation” and

provide them to the parties by March of 2019.

J.D.’s therapist provided a letter stating that she did not have “the information base or the

objectivity necessary to make a psycho-legal recommendation on visitation.” Nevertheless, based

upon her interactions with J.D., the therapist noted that the child expressed “fear related to his

experience with [petitioner K.B.] and has not communicated . . . a desire for continued

interactions.” Further, based upon his clinical levels of anger and post-traumatic stress, the

therapist opined that J.D. would ideally need to be removed from any traumatic reminders “in

order to have space and time to process events and emotions and learn how to manage any

triggers [he] will encounter in the future.” The therapist noted that J.D. had made progress in

therapy and noted that if improvements continue and J.D. developed a desire to visit with

petitioners, she would leave that decision to the circuit court’s discretion.

A.D.’s therapist also provided a letter to the circuit court in which she opined that

“[A.D.’s] symptoms of anxiety and depression can be related to her experiences with abuse and

she has identified feelings of fear related to experiences with [petitioner K.B.] and has

consistently stated that she does not want to see her.” The therapist opined that A.D. had been

working on processing her traumatic experiences, working towards healing and recovery, and

learning to identify and maintain healthy relationships by learning to trust her perceptions. The

therapist concluded that “[f]orcing visitation with [petitioner K.B.] against [A.D.’s] will would

be counter productive to her progress thus far” and that visits with petitioner K.B. should only be

considered if A.D. desired to reinitiate contact.

The circuit court held a hearing on petitioners’ motion for visitation in May of 2019. At

the outset, petitioners requested to continue the hearing and obtain the opinion of another

therapist based on J.D.’s therapist’s statement that she did not have the “objectivity necessary to

make a psycho-legal recommendation.” The circuit court deferred ruling on the objection until

after the therapist could testify and explain her statement. J.D.’s therapist testified that by stating

that she could not make a “psycho-legal recommendation” she meant that she was “not in a

position to decide whether or not something should happen” from a legal standpoint and did not

feel like she could make a legal conclusion. However, the therapist testified that she felt that she

2

While petitioner P.B., the children’s step-grandfather, was not appointed as a legal

guardian in 2010, he was recognized as having acted in a parental role toward the children and

was added to the proceedings at the preliminary hearing, appointed counsel, and permitted to

participate in the abuse and neglect proceedings. The DHHR also included allegations of

extensive substance abuse against the children’s mother.

2

could opine on what would be best for J.D. The therapist explained that she had been working

with J.D. on avoiding triggers, or reminders of experiences, and that his triggers were “related to

his experiences while living with [petitioners].” She further noted that, for the purposes of J.D.’s

therapy, “it would be best if he was not exposed to triggers.” The therapist also testified that J.D.

had expressed to her that he does not desire visitation with petitioners and that she believed his

wishes should be respected.

A.D.’s therapist also testified, explaining that A.D. was suffering from symptoms of

anxiety and depression related to situations that occurred while she lived with petitioners. The

therapist recalled a specific instance wherein A.D. described being tied to a chair for a long

period of time by petitioner K.B. The therapist testified that A.D. “has maintained adamantly

from the beginning” that she does not want to see petitioner K.B. The therapist further opined

that she did not feel that it would be in A.D.’s best interest to have contact with petitioner K.B.

Following this testimony, petitioners renewed their motion to continue, arguing that J.D.’s

therapist’s testimony was inconsistent with her letter and that another opinion was necessary.

Petitioners added that a continuance was necessary based upon the therapists’ testimony that an

intake assessment for the children had been completed. Petitioners argued that the DHHR’s

failure to provide these documents to support the medical diagnoses mentioned by the therapists

violated discovery requirements. However, the circuit court denied the motion, finding that the

intake assessment was irrelevant in determining whether visitation was in the best interests of the

children and that J.D.’s therapist had adequately explained her statement.

A DHHR worker then testified that she spoke to the children individually and both

children—then ages thirteen and nine—expressed to her that they did not want to visit with

petitioners. Petitioners did not present any testimony or evidence in support of their motion for

visitation. Counsel for the father requested that the circuit court deny petitioners’ motion. After

hearing testimony, the circuit court found that based upon the evidence presented, it was not in

the best interests of the children to have visitation with petitioners. Nevertheless, the circuit court

provided that the therapists would be given latitude to incorporate petitioners into the children’s

therapy if the children expressed any type of desire to reinitiate contact in the future. It is from

the May 16, 2019, order denying visitation that petitioners appeal.3

The Court has previously established the following standard of review:

“Although conclusions of law reached by a circuit court are subject to de

novo review, when an action, such as an abuse and neglect case, is tried upon the

facts without a jury, the circuit court shall make a determination based upon the

evidence and shall make findings of fact and conclusions of law as to whether

such child is abused or neglected. These findings shall not be set aside by a

reviewing court unless clearly erroneous. A finding is clearly erroneous when,

although there is evidence to support the finding, the reviewing court on the entire

3

The mother’s parental rights were terminated around February of 2019. The permanency

plan for the children is to remain in the care of their father.

3

evidence is left with the definite and firm conviction that a mistake has been

committed. However, a reviewing court may not overturn a finding simply

because it would have decided the case differently, and it must affirm a finding if

the circuit court’s account of the evidence is plausible in light of the record

viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,

470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

Petitioners first argue that the circuit court erred in denying their motion to continue the

hearing on the issue of visitation. According to petitioners, the therapists did not have sufficient

information to address a recommendation of visitation and did not properly consider the

“psychological parent” status of petitioners. Petitioners further contend that it was erroneous for

the circuit court to deny their motion to continue when the therapists discussed the children’s

medical diagnoses but failed to provide the supporting documentation to petitioners. Petitioners

contend that they were essentially “ambushed” and were not prepared to discuss the children’s

mental health. Lastly, petitioners contend that J.D.’s therapist’s testimony contradicted the

recommendation of her letter and, therefore, was unreliable. We disagree.

This Court has previously held that “[w]hether a party should be granted a continuance

for fairness reasons is a matter left to the discretion of the circuit court, and a reviewing court

plays a limited and restricted role in overseeing the circuit court’s exercise of that discretion.”

Tiffany Marie S., 196 W. Va. at 235, 470 S.E.2d at 189 (citing State v. Judy, 179 W. Va. 734,

372 S.E.2d 796 (1988)). We find no abuse of discretion in the circuit court’s denial of the motion

to continue. Contrary to petitioners’ arguments, the record establishes that the therapists had

sufficient information to make a recommendation on visitation. The circuit court noted that the

therapists had been working with the children for at least six months and had established rapport

with them. The therapists testified that they made their recommendations based nearly entirely

upon their interactions with the children and did not consider much outside information, but were

able to opine on the best interests of the children. To the extent petitioners argue that the

therapists should have been given some sort of documentation regarding their status as

psychological parents, we note that petitioners do not reference any specific documentation that

should have been provided. Indeed, petitioners fail to cite to any portion of the record

establishing that they were deemed psychological parents by the circuit court. Further, any

argument that J.D.’s therapist was not qualified to make a recommendation based on her

statement that she could not make a “psycho-legal recommendation” is without merit as the

therapist was able to explain that she simply meant she did not feel that she could reach a legal

conclusion. The therapist did believe, however, that she possessed the necessary information to

make a recommendation in regard to what was in J.D.’s best interest. As such, we find no merit

in petitioner’s argument that additional time was needed in order to provide documentation to the

therapists or to obtain another opinion in addition to that of J.D.’s therapist.

4

We likewise find no merit in petitioners’ argument that a continuance should have been

granted when they were not provided the children’s intake assessments documenting their

diagnoses.4 While the therapists did mention the intake assessments and the resulting diagnoses,

their recommendations regarding visitation were nearly entirely based upon their interactions

with the children and the children’s wishes. The circuit court found that the children’s diagnoses

were not determinative of the issue of the children’s best interests. We agree. There is nothing to

suggest the intake evaluations were relevant or material to the issue of whether visitation with

petitioners was in the children’s best interests. Rather, the therapists, who had spent six months

counseling the children, were in a better place to provide information on the issue than an

assessment completed at the intake. Further, as noted above, it is clear that the therapists

considered more than the intake assessment in making their recommendation. Accordingly, we

find no error in the circuit court’s denial of petitioners’ motion to continue.

Petitioners next argue that the circuit court erred in not granting their motion for

visitation. They again reference the therapists’ failure to consider their status as psychological

parents and the DHHR’s failure to provide them with the intake assessments to support their

argument that the circuit court improperly decided on the issue of visitation. We disagree.

This Court has held that

“[w]hen parental rights are terminated due to neglect or abuse, the circuit

court may nevertheless in appropriate cases consider whether continued visitation

or other contact with the abusing parent is in the best interest of the child. Among

other things, the circuit court should consider whether a close emotional bond has

been established between parent and child and the child’s wishes, if he or she is of

appropriate maturity to make such request. The evidence must indicate that such

visitation or continued contact would not be detrimental to the child’s well being

and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.

Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002).5

4

Petitioners cite to criminal cases in support of their argument that they should have been

provided the intake assessments in discovery. They cite to no authority demonstrating how these

cases apply to abuse and neglect proceedings.

5

Again, petitioners cite to no portion of the record demonstrating that the circuit court

found them to be the psychological parents of the children. We have previously held that

[a] psychological parent is a person who, on a continuing day-to-day basis,

through interaction, companionship, interplay, and mutuality, fulfills a child’s

psychological and physical needs for a parent and provides for the child’s

emotional and financial support. The psychological parent may be a biological,

(continued . . .)

5

Here, the children’s therapists testified that the children did not wish to visit with

petitioners and that visitation with petitioners would be a detriment to the children’s progress in

therapy. Again, petitioners reference no documentation regarding their status as psychological

parents that should have been considered by the therapists. As noted above, the therapists were

aware of the history of this family as provided by the children. Additionally, as discussed above,

the content of the intake assessment was irrelevant to the issue of whether visitation was in the

children’s best interests, especially when viewed in light of the testimony of the therapists

following six months of therapy with the children. Further, the DHHR worker also testified that

the children did not desire visitation with petitioners.6 Thus, the evidence supports the circuit

court’s finding that visitation with petitioners was contrary to the children’s best interests.

Moreover, the circuit court provided that the therapists could address future visitation with

petitioners if the children expressed a desire to reinitiate contact. As such, an avenue has been

provided for petitioners to visit with the children in the future if the children request it and if it is

determined that such visitation is in the children’s best interests. Accordingly, we find no error in

the circuit court’s denial of petitioners’ request for visitation.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

May 16, 2019, dispositional order is hereby affirmed.

Affirmed.

ISSUED: February 7, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

adoptive, or foster parent, or any other person. The resulting relationship between

the psychological parent and the child must be of substantial, not temporary,

duration and must have begun with the consent and encouragement of the child’s

legal parent or guardian. To the extent that this holding is inconsistent with our

prior decision of In re Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), that

case is expressly modified.

Syl. Pt. 3, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005). Although the record is

unclear as to whether petitioners were designated as psychological parents, it is undisputed that

they had sole custody of the children for a number of years while petitioner K.B. exercised legal

guardianship over the children. Due to this continued care and their claims of having a bond with

the children, we will address their rights to visitation under the standard set forth above.

6

On appeal, the guardian notes that the children continue to maintain that they were

physically abused at the hands of petitioner K.B. and do not desire visitation with petitioners.

6