Sierra J. & Adriano D. v. David J. & Marilyn J.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
March 25, 2024
SIERRA J. & ADRIANO D.,
C. CASEY FORBES, CLERK
Respondents Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-444 (Fam. Ct. Berkeley Cnty. No. FC-02-2022-D-590)

DAVID J. & MARILYN J.,
Petitioners Below, Respondents

MEMORANDUM DECISION

Petitioners Sierra J. (“Mother”) and Adriano D. (“Father”)1 appeal the Family Court
of Berkeley County’s September 19, 2023, order granting grandparent visitation to
Respondents and maternal grandparents David J. & Marilyn J. (“Grandparents”).2 The
family court held that it was in the child’s best interest to have grandparent visitation.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Mother and Father were never married but share one child, A.D. Events leading to
this appeal began with a custody order entered by the family court on December 30, 2020,
granting Mother parenting time each Sunday from 11:00 a.m. through Wednesday at 11:00
a.m. with Father having all remaining time. Mother and the child resided with Grandparents
until June of 2022, when Sierra J. and Grandparents had a verbal dispute. Grandparents
allege that they asked Mother to leave their home due to her alcohol use and reckless
behavior. However, Mother alleges that Grandparents were upset because Mother planned
to move to North Carolina. Mother further alleged that Grandparents colluded with Father
by providing him with information regarding her mental health in return for Father’s
promise to allow them to see the child.

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Sierra J. and Adriano D. are self-represented. David J. and Marilyn J. did not
participate in the appeal.
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After learning of Mother’s behavior from Grandparents, Father filed a petition for
custody and child support on July 7, 2022. Father allowed Grandparents to see the child
one time, but shortly thereafter stopped all contact between them. A hearing was held on
Father’s petition on September 6, 2022. The family court entered its order on September
7, 2022, granting primary custody to Father and one weekend per month visitation to
Mother.

On September 1, 2022, after Father stopped allowing Grandparents to see the child,
they filed a petition for grandparent visitation. On July 25, 2023, a hearing was held on the
petition for grandparent visitation and a guardian ad litem (“GAL”) was appointed. At that
hearing, Grandparents testified that Mother and child lived with them for a significant
period of time; they acted as caretakers for the child, took the child on vacation, and
provided clothing for the child; Mother cut off contact between them and the child after
she was asked to leave the home due to her alcohol use; and Mother had attempted suicide
by way of a vehicle crash. Grandparents further testified that after Mother left their
residence with the child, they thought it was important to inform Father about her mental
health issues to keep the child safe.

Additionally, at the hearing on July 25, 2023, Mother alleged that Father stopped
allowing Grandparents to visit because they showed up unannounced, called and texted
excessively, and called the police to conduct wellness checks on the child. Relevant to this
appeal, Mother sought to have her witnesses testify telephonically. However, because there
was no proof that Mother’s witness list was provided to Grandparents, and because Mother
failed to make arrangements with the family court for her witnesses to appear by video, the
family court did not allow Mother’s witnesses to testify.

On September 19, 2023, the family court entered its order granting visitation to
Grandparents on the first weekend of every month from Saturday at 10:00 a.m. until
Sunday at 6:00 p.m. The family court found that Grandparents acted in good faith by filing
their petition for visitation, Mother and Father appear to be using the child to hurt
Grandparents, and it was in the child’s best interest to have visitation with Grandparents.
It is from the September 19, 2023, order that Mother and Father now jointly appeal.

For these matters, we use the following standard of review.

“In reviewing . . . 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.” Syl. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

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Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);
accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review
of family court order).

On appeal, Mother and Father (collectively, “Parents”) raise four assignments of
error, which we will address in turn. First, Parents assert that the family court violated their
Constitutional right to direct the upbringing of their child. We are not persuaded by this
argument. When weighing a petition for grandparent visitation, a family court must
consider the thirteen factors outlined in The Grandparent Visitation Act, which is codified
in West Virginia Code § 48-10-502 (2001).3 Upon consideration of these factors, the
“family court shall grant reasonable visitation to a grandparent upon a finding that
visitation would be in the best interests of the child and would not substantially interfere

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The thirteen factors include:

(1) The age of the child;
(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 grandparents;
(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.

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with the parent-child relationship.” W. Va. Code § 48-10-501 (2006). However, as part of
this analysis, the family court is required to give extra weight to a fit parent’s preference
regarding grandparent visitation. In re Visitation of A.P., 231 W. Va. 38, 42, 743 S.E.2d
346, 350 (2013) (holding “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.”) (quoting Troxel v. Granville, 530 U.S. 57, 70, 120 S.Ct. 2054, 2062,
(2000)). The Supreme Court of Appeals of West Virginia has held that “those provisions
[of West Virginia Code § 48-10-502] contemplate the special weight that is constitutionally
afforded a fit parent’s wishes in its twelfth factor.” In re Visitation of L.M., 245 W. Va.
328, 337, 859 S.E.2d 271, 280 (2021).

Upon review of the family court’s order, we find that the family court gave
appropriate consideration to the factors listed in The Grandparent Visitation Act, including
the twelfth factor. In weighing those factors, the family court found that the child lived
with Grandparents and was cared for by them for a significant period of time, the
Grandparents acted both timely and in good faith in filing their petition, and although the
Parents object to grandparent visitation, the family court found that they are “using the
child as a mechanism to cause pain and suffering” and “clearly not taking into account
what would be best for the child.” Furthermore, the GAL recommended that the child have
continued contact with Grandparents. Based upon its consideration of the thirteen factors
and the GAL’s recommendation, the family court held that it was in the child’s best interest
to maintain contact with Grandparents. Therefore, we find no error in the family court’s
decision with regard to this assignment of error.

As their second assignment of error, Parents assert that the family court erred when
it focused on Mother’s mental health issues but failed to recognize her progress and proof
that she had stopped using drugs and no longer posed a risk of harm to herself or others.
We disagree. This Court cannot set aside a family court’s findings “unless clearly
erroneous,” and a finding is clearly erroneous only when “the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Under
the clearly erroneous rule, appellate courts of this State do not reweigh the evidence and
will not reverse a family court’s findings simply because it may have viewed the evidence
differently. Mulugeta v. Misailidis, 239 W. Va. 404, 408, 801 S.E.2d 282, 286 (2017).
Here, Parents are simply asking that we reweigh the evidence and rule in their favor. We
decline to do so. Upon review of the hearing DVD and the September 19, 2023, order, we
find that the family court heard and fairly analyzed all evidence before it. Parents have
failed to demonstrate that the findings of the family court were clearly erroneous or that
the family court abused its discretion by concluding that grandparent visitation is in the
child’s best interest.

As their third assignment of error, Parents contend that the family court erred when
it did not allow Mother’s witnesses to testify. We disagree. West Virginia Code § 51-2A-

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7(a)(1) (2013) provides family courts with authority to “[m]anage the business before
them.” Moreover, Rule 18 of the West Virginia Rules of Practice and Procedure for Family
Court provides that the family court may permit any witness to testify telephonically or by
videoconference. Here, the record reflects that there was no proof that Mother sent her
witness list to Grandparents. Additionally, Mother did not arrange for her long-distance
witnesses to appear by video. The family court was willing to hear in-person witnesses but
would not allow telephonic witnesses due to the inability to make a credibility
determination telephonically. It was within the family court’s discretion to prohibit
Mother’s witnesses from testifying telephonically. Therefore, we find no error in the family
court’s decision regarding this assignment of error.

As their fourth and final assignment of error, Parents assert that both the family
court and the GAL were provided with information regarding Marilyn J. being the subject
of a Child Protective Services (“CPS”) investigation in New York and failed to investigate
further. Parents have the duty on appeal to support their arguments with “appropriate and
specific citations to the record . . .” W. Va. R. App. P. 10(c)(7). Such specific citations
include “citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal.” Id. Otherwise, “[t]he Intermediate Court . . . may disregard
errors that are not adequately supported by specific references to the record on appeal.” Id.
Here, there is nothing in the record that demonstrates that Parents raised this issue before
the family court. This likely explains why Parents’ brief does not contain any citation to
the record that pinpoints when and how this issue was presented to the family court.
Accordingly, this Court disregards this assignment of error as not adequately preserved for
appeal.

Accordingly, we affirm the family court’s September 19, 2023, order.

Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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