Thomas G. Dyer
Shannon R. Thomas
Mary Guy Dyer Weston, West Virginia
Dyer Law Offices Attorney for the Appellant
Clarksburg, West Virginia
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court
1. Upon an appeal from a domestic violence protective order, this Court
reviews the circuit court's final order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a clearly erroneous standard;
conclusions of law are reviewed de novo.
2. To allow proper judicial review, a family court judge who issues a domestic violence protective order is required to make factual findings which describe the acts of domestic violence that have been established by the evidence presented and to identify which statutory definition of domestic violence such facts demonstrate.
3. To constitute domestic violence under the statutory definition of [h]olding, confining, detaining or abducting another person against that person's will within the meaning of West Virginia Code § 48-27-202(5) (2001), a parent's alleged act of domestic violence toward his or her child should, as a general rule, take place over a temporally significant period and not be the momentary act of a parent in the midst of attempting to control a child within the proper boundaries of parental control.
4. The statutory language shall be heard that is set forth in West Virginia Code § 48-27-510(c) (Supp. 2003) connotes in mandatory terms the obligation of the circuit court to afford a petitioner seeking relief from a domestic violence protective order the opportunity to appear and present argument in person in connection with a timely filed appeal unless affirmatively waived by the appealing party.
Dawn D.O. (See footnote 1) appeals from the April 15, 2002, decision of the Circuit Court of Harrison County affirming the domestic violence protective order that the Harrison County Family Court Judge issued against her upon the petition of Appellee John P.W. Appellant challenges the issuance of that protective order, arguing that the statutory grounds for its issuance were not met and that the circuit court failed to afford her a hearing in connection with her appeal of the order. Upon a full review of the record in this matter, we find that error was committed by the family court judge's wrongful issuance of the protective order and further find that Appellant was denied her statutory right to a hearing in connection with her appeal. Accordingly, we reverse.
From a very early point, there were problems with the shared custody arrangement. (See footnote 3) The record reflects that the parties and their children were engaged in periodic counseling in an attempt to resolve various issues that surfaced over the years and that several modification orders were entered with respect to the original joint parenting agreement. On August 24, 2001, Appellee filed a motion seeking a modification of custody based upon the desires of Adam, who would turn fourteen in a matter of months. Through this motion, Appellee sought to have Adam reside exclusively with him and to visit with the Respondent [Appellant] only upon the mutual agreement of the infant child and the Respondent [Appellee]. By order entered on February 1, 2002, the family court made Appellee the primary physical custodian of Adam and provided for bi-monthly weekend visitation between Adam and Appellant. (See footnote 4)
On March 17, 2002, an altercation between Adam and Appellant occurred as Adam was leaving his mother's residence following a weekend visitation. Adam had attempted to take certain expensive items of sports memorabilia from Appellant's home without her consent. (See footnote 5) When Appellant confronted Adam about taking the items, which she had purchased for him and intended to remain in his room at her house, he left the items and exited angrily from the house, slamming the door upon leaving. In response to Appellant's attempt to speak with him about sneaking things out of the house, Adam was allegedly verbally abusive to his mother, saying no in response to her request that he talk to her, and following that comment with [w]hat are you going to do about it? At this point, Appellant apparently ran after Adam, and grabbed his shirt. He managed to slip out of his shirt and Appellant then grabbed her son by the back of his pants trying to pull him back. While the facts are disputed as far as the severity of the physical harm inflicted upon Adam, he was allegedly scratched and/or bruised in the process of the struggle that ensued with his mother. (See footnote 6)
During the entirety of the incident, Appellee observed the struggle while
sitting in his van, which was parked in Appellant's driveway.
(See footnote 7)
While in the van, Appellee,
who is the chief of police of a local community, made a 911 call to which a police cruiser
responded. The responding officer, Michael J. Limley, took statements from Appellant,
Appellee, and Adam.
(See footnote 8)
He took pictures of Adam as well.
(See footnote 9)
Appellant and Adam went to the
Harrison County Magistrate Court on the date of the incident and obtained a temporary
domestic violence order. Pursuant to this emergency order, Adam and Derek were removed
from Appellant's care and Appellee was awarded temporary custody of the children with no
visitation or contact provided to Appellant.
On March 25, 2002, a hearing on the domestic violence petition was held
before Family Court Judge M. Drew Crislip. Testimony was taken from Officer Limley, Dr.
George Moses, a treating counselor, and Sharon Johnson, a co-worker and friend of
(See footnote 10)
With regard to the facts of the incident, the family court judge simply read into
the record the domestic violence petition filed by Appellee and the response that Appellant
filed to the petition. Although a child protective services worker, Mary Nicholson, appeared
to testify, she left without giving testimony due to the illness of her child. Before leaving,
however, she gave the family court judge her opinion that the restraint used during the
incident by Appellant was excessive, though she declined to give a recommendation due to
the incompleteness of her investigation.
(See footnote 11)
During the course of the hearing, the family court judge found that domestic
violence had occurred based on the sole factual finding that Appellant exceeded the bounds
of propriety in attempting to discipline the parties' son, Adam. In issuing the domestic
violence protective order, the family court judge granted Appellee custody of both Adam
and Derek; provided for visitation between Adam and his mother only as Adam wishes;
and set up supervised visitation between Derek and Appellant, that was to occur every other
Appellant timely filed her appeal of the ruling issued by the family court judge
on April 8, 2002. Without providing any hearing to Appellant on her appeal, the circuit
court issued its ruling on April 15, 2002, in which it affirmed the family court's issuance of
the domestic violence protective order. In its ruling, the circuit court found no error, holding
that Appellee had shown domestic violence by a preponderance of the evidence and that the
family court judge did not disregard the best interests of the parties' other infant son, Derek
W[.], in granting custody of him to Appellee. Through this appeal, Appellant seeks a
reversal of the domestic violence protective order.
Appellant maintains that none of the acts defined as constituting domestic
violence applies in this case and, further, that the family court judge did not make a specific
finding that any one of these qualifying acts was demonstrated by the evidence. The only
finding contained in the protective order was that Respondent [Appellant] exceeded the
bounds of propriety in attempting to discipline the parties' son, Adam, in the presence of
Petitioner [Appellee] and the parties' other son, Derek.
In response to Appellant's arguments that domestic violence was not shown,
Appellee contends that the proffered evidence could be viewed as having demonstrated the
occurrence of physical harm; that Adam was placed in reasonable apprehension of physical
harm, and that Appellant had held, confined, or detained Adam against his will. See W.Va.
Code § 48-27-202 (1), (2), (5). Because there is no finding by the family court judge as to
which definition of domestic violence he was relying upon to issue the protective order, we
are without any basis from which to review his ruling other than to look at the statutory
definitions to determine whether the evidence presented demonstrates an act which qualifies
as domestic violence under the statute. See W.Va. Code § 48-27-202. To avoid this
problem in the future and to allow proper judicial review, we hold that a family court judge
who issues a domestic violence protective order is required to make factual findings which
describe the acts of domestic violence that have been established by the evidence presented
and to identify which statutory definition of domestic violence such facts demonstrate.
For purposes of this appeal, we will examine the three definitions of domestic violence upon which Appellee relies to argue that the family court could have been relying upon in making its ruling. See W.Va. Code § 48-27-202 (1), (2), (5). While Appellee views the record as conclusively demonstrating physical harm, based on photographs evidencing several scratch marks, we do not reach the same conclusion. We have carefully scrutinized the submitted photographs that Officer Limley took of Adam and we can barely discern the referenced scratch marks; we are completely unable to detect any red marks in the neck area. While we do not go so far as to hold that physical harm which does not require medical attention (See footnote 13) cannot qualify as domestic violence under the statute, in this case we do not find sufficient evidence of physical harm to meet the definition of domestic violence. Moreover, there is no finding by the family court judge that physical harm was inflicted upon Adam.
In similar conclusory fashion, Appellee makes the presumption that Adam was
placed in reasonable apprehension of physical harm. W.Va. Code § 48-27-202(2). Based
on Adam's plea for help from his father who was sitting in a vehicle in the driveway,
Appellee argues that the requisite fear of harm was demonstrated. Appellant notes that
Adam never told Officer Limley that he was afraid.
(See footnote 14)
And, even the family court judge
recognized that the fact that his [Adam's] father was there and he knew that his father
would be supportive and in disagreement with his mother is a factor that is worthy of
consideration. Dr. Moses testified that there had been no past incidents of physical harm
involving Appellant with either of her children.
(See footnote 15)
Without any testimony or statement from
Adam that he was in fear of being harmed by his mother during this incident, we find the
record devoid of evidence sufficient to meet the reasonable apprehension of fear definition
of domestic violence under the statute at issue. See id.
The final basis upon which Appellee relies to assert domestic violence is the
most disconcerting. To suggest that Appellant's attempt to hold or detain her child while
she was attempting to speak with him about the deceptive and disrespectful conduct she
caught him in the midst of carrying out is tantamount to suggesting that every parent who
attempts to temporarily restrain their child while in the course of discussing inappropriate
behavior is committing domestic violence.
(See footnote 16)
We do not think the Legislature intended that
the statutory definition of holding, confining, [or] detaining be applied to everyday
instances of parental discipline.
(See footnote 17)
Upon reflection, the terms used to convey this definition
of domestic violence suggests that a temporal component is involved in qualifying factual
instances. In this Court's opinion, to constitute domestic violence under the statutory
definition of holding, confining, detaining or abducting another person against that
person's will within the meaning of West Virginia Code § 48-27-202(5), a parent's alleged
act of domestic violence toward his or her child should, as a general rule, take place over a
temporally significant period and not be the momentary act of a parent in the midst of
attempting to control a child within the proper boundaries of parental control. See Ginsberg
v. New York, 390 U.S. 629, 639 (1968) (recognizing that parents' claim to authority in their
own household to direct the rearing of their children is basic in the structure of our society).
While there are clear exceptions to the broad authority afforded parents in
rearing their children, such as those situations where a child's physical or mental health is
jeopardized, the evidence presented in this case does not rise to that level. Parham v. J.R.,
442 U.S. 584, 603 (1979). The Legislature was clear in its expression of the objectives
underlying the enactment of the Domestic Violence statutes.
(See footnote 18)
See W.Va. Code § 48-27-
101. Significantly, there is no language set forth in those statutory provisions that seeks to
abrogate the right of a parent to exercise control over his or her child in the context of child
rearing. It is beyond dispute that the concerns which underlie the enactment of the Domestic
Violence statutes are deserving of serious attention and consequently demand the highest
protections the law can afford. What is equally true, however, is that the law cannot
countenance an attempt to cloak as domestic violence acts that clearly were not contemplated
by the Legislature to fall within the parameters of these statutes.
We simply cannot accept Appellee's contention that the acts committed by
Appellant on the date in question escalated into abuse. In addition to the questionable
evidence of physical harm, there is no finding by the family court judge in the protective
order of any act which qualifies as domestic violence. We cannot by any stretch of the
imagination view the Family Court's finding that Appellant exceeded the bounds of
propriety in attempting to discipline her child as sufficient to constitute an act of domestic
violence under the provisions of West Virginia Code § 48-27-202.
(See footnote 19)
Finding no statutory
basis for the issuance of the domestic violence protective order, we conclude that the circuit
court abused its discretion in upholding the issuance of that order by the family court upon
the facts of this case.
While this Court is to a great extent powerless to alter the attitudes of
recalcitrant adults on the all important issue of encouraging children to maintain a
relationship with their non-custodial parent, we would be remiss if we failed to acknowledge
the potential harm that will result from a parental relationship that is effectively allowed or
encouraged to be extinguished. Children need the support, love, and encouragement of both
parents when those parents are available, as any child psychologist will readily attest. The
parent who has physical custody of children in a divorce setting has the best opportunity and
indeed has an obligation as a parent who is supposed to be acting in the best interests of his
child to encourage contact and foster visitation with the non-custodial parent, barring
reasonable cause to believe that such visitation will put the child in jeopardy of harm. To
act otherwise, is clearly to deny that child a critical part of his development and to deny the
non-custodial parent her liberty interest in guiding the child to adulthood.
The United States Supreme Court recognized in Parham that
[t]he law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.
442 U.S. at 602 (citing 1 W. Blackstone, Commentaries * 447, 2 J. Kent, Commentaries on American Law * 190). While parents are accorded great deference in child rearing matters, their right to raise their children without intervention of the state is clearly linked to this recognition that in most instances a parent will act in the best interests of their children. See Syl. Pt. 4, Lindsie D.L. v. Richard W.S., __ W.Va.__, __S.E.2d __ , No. 31562 (Dec. __ 2003) (holding that [t]here is a presumption that fit parents act in the best interests of their children). When one parent discourages a child from maintaining a relationship with the other parent where there are no legitimate concerns regarding the child's physical or mental welfare, that parent is undeniably failing to act in the child's best interests and disregarding the high duty of preparing their child for life's additional obligations. Parham, 442 U.S. at 602 (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)).
Through our ruling in this case we are not asked to, nor do we seek to,
disturb the modified parenting plan that the parties entered into on April 10, 2003. Pursuant
to that plan, which included the participation of a guardian ad litem, Appellee is the primary
residential parent of the parties' children and Appellant is permitted parenting time with
either child as the child desires and requests and/or as recommended by the children's
counselor, Nancy Rush. Counseling was to occur with Ms. Rush during the initial six
month period of this plan, and at the end of such time period, Ms. Rush was to file a report
with the family court regarding the participation of the parties in counseling and her
recommendations as far as visitation. While we are certainly pleased to see that the
parenting plan instructs, [b]oth parties . . . [to] encourage parenting time and contact
between the children and mother, the realities suggest that the mandated encouragement
may not be forthcoming. See supra note 20. Admittedly, issues of visitation are not before
us today. We simply wish to encourage the fostering of a positive relationship between
these boys and their mother.
W.Va. Code § 48-27-510 (b), (c).
The record confirms that Appellant was denied an opportunity to appear before
the circuit court to present argument in connection with her appeal from the domestic
violence protective order. The statutory language shall be heard that is set forth in West
Virginia Code § 48-27-510(c) (Supp. 2003) connotes in mandatory terms the obligation of
the circuit court to afford a petitioner seeking relief from a domestic violence protective
order the opportunity to appear and present argument in person in connection with a timely
filed appeal unless affirmatively waived by the appealing party. In this case, the circuit court
denied Appellant her statutory right to have her day in court. Although the circuit court
committed error in failing to afford Appellant a hearing, there is no reason to remand this
matter for the purposes of holding such a hearing based on our decision that the protective
order was improperly issued.
Based on the foregoing, the decision of the Circuit Court of Harrison County
is hereby reversed.