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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
KIMBERLY TURLEY (FORMERLY KEESEE),
Respondent Below, Appellant
DAISY KEESEE, ET. AL.,
Petitioners Below, Appellees
Appeal from the Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Judge
Civil Action No. 04-D-73
REVERSED AND REMANDED
Submitted: October 11, 2005
Filed: December 1, 2005
| Amy M. Herrenkohl, Esq.
Herrenkohl Law Office
Barboursville, West Virginia
Attorney for Appellant
| David J. Lockwood, Esq.
Lockwood & Vital
Huntington, West Virginia
Attorney for Appellees
The Opinion of the Court was delivered PER CURIAM.
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. Syl. Pt., Carr
v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
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)
 or W. Va. Code § 48-2B-1 , shall give paramount consideration
to the best interests of the grandchild or grandchildren involved. Syl.
Pt. 1, Petition of Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987);
Syl. Pt. 2, Visitation of Cathy L.(R.)M. v. Mark Brent R., 217 W. Va.
319, 617 S.E.2d 866 (2005).
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. Pt. 3, Lindsie D.L. v. Richard W.S.,
214 W. Va. 750, 591 S.E.2d 308 (2003).
case is before the Court on appeal from the November 15, 2004, Order of the Circuit
Court of Cabell County affirming the August 26, 2004, Order on Remand of the
Family Court of Cabell County granting grandparent visitation to Appellee Daisy
Keesee with Appellant's children. This Court has before it the petition for appeal,
the response, the briefs of the parties, and all matters of record. Following
the arguments of the parties and a review of the record herein, this Court finds
that the circuit court erred in affirming the family court's Order on Remand,
which lacked specific findings of fact. Accordingly, this Court reverses the
November 15, 2004, Order of the circuit court and remands the matter to the family
court for specific findings of fact upon which to base the court's decision.
Turley (formerly Keesee) and Kevin Kessee were divorced in Cabell County, West
Virginia, on January 28, 2003. (See
At that time, Ms. Turley was granted custody of the
couple's two minor children, Hollie, born January 29, 1993, and Ashley, born
September 5, 2000. Kevin Keesee was not granted visitation rights with the
apparently due to concerns about domestic violence.
on her own judgment, Ms. Turley also refused the paternal grandparents, Daisy
and John Keesee, (See footnote
visitation with Hollie and Ashley following the divorce and Ms.
Turley's subsequent remarriage. Ms. Turley was concerned that the Keesees would
permit Kevin Keesee to see the children in violation of a protective order entered
on August 9, 2002, thus endangering the children's lives. She was also concerned
that the Keesee's home was not an appropriate environment for the children because
John Keesee allegedly had a history of alcohol abuse. Kevin Keesee and his brother,
Buddy, who lived nearby the Keesees, both have criminal records.
21, 2004, the Keesees petitioned the family court to establish visitation rights
with the grandchildren. The Keesees alleged in their petition that, prior to
Ms. Turley and Kevin Keesee's divorce, Hollie and Ashley had maintained a close
relationship with their paternal grandparents, visiting with them almost every
weekend and speaking to them on the phone daily. Ms. Turley responded that she
had never been comfortable letting the children visit with the Keesees, but that
she did so under duress during her marriage. A hearing was held on March 29,
2004, following which the family
court apparently granted the Keesees visitation with their grandchildren. (See
Ms. Turley moved to set aside the ruling, asserting
that she had not received notice of the hearing and was not represented by
counsel at the time that the hearing was conducted. The family court set aside
its ruling and set a full evidentiary hearing on the matter of grandparent
1, 2004, the family court entered an Order granting the Keesees visitation with
the children for six hours on the first and third Sundays of each month. The
Keesees were directed in the Order not to inform Kevin Keesee of the visitation
schedule and not to allow Kevin Keesee to have any contact with the children. (See
At Ms. Turley's request, however, the family court stayed
the Order pending her appeal.
appeal was based on the family court's failure to make specific findings of fact
as to the children's best interests, whether the Keesees rebutted the legal presumption
that Ms. Turley's decision to deny visitation was based on rational and legitimate
concerns, and whether the children should maintain a relationship with their
paternal grandparents when such a relationship might place them at risk. The
circuit court agreed and found that the family court failed to address the
factors laid out in W. Va. Code §§ 48-10-501 and 48-10-502 and Mary
Jean H. v. Pamela Kay R.
, 198 W. Va. 690, 693, 482 S.E.2d 675, 678
(1996). The circuit court remanded the matter for further findings of fact.
the family court issued a second Order reflecting the court's feeling that
it was in the best interests of the children that they visit with their paternal
grandparents but, again, failed to make any specific findings of fact and conclusions
of law. Ms. Turley again appealed, but this time the circuit court (presided
over by a different circuit court judge) affirmed the family court's Order.
STANDARD OF REVIEW
Court has previously held that [i]n 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. Syl. Pt., Carr v. Hancock, 216 W. Va.
474, 607 S.E.2d 803 (2004). See also, Syl. Pt. 2, Lucas v. Lucas,
215 W. Va. 1, 592 S.E.2d 646 (2003).
appeal, Ms. Turley's arguments essentially distill to whether it is in the
best interests of Hollie and Ashley to visit with their paternal grandparents.
W. Va. Code § 48-10-501 (2001) (Repl. Vol. 2004) provides that [t]he
circuit 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 with the parent-child relationship. The Legislature went on
to say in W. Va. Code § 48-10-502 (1998) (Repl. Vol. 2004):
making a determination on a motion or petition [for grandparent visitation] the
court shall consider the following factors:
The age of the child;
The relationship between the child and the grandparent;
The relationship between each of the child's parents or the person with whom
the child is residing and the grandparent;
The time which has elapsed since the child last had contact with the grandparent;
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;
If the parents are divorced or separated, the custody and visitation arrangement
which exists between the parents with regard to the child;
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
The good faith of the grandparent in filing the motion or petition;
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;
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
The preference of the parents with regard to the requested visitation; and
Any other factor relevant to the best interests of the child.
held that [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)  or W. Va. Code, §48-2B-1 ,
shall give paramount consideration to the best interests of the grandchild or
grandchildren involved. Syl. Pt. 1, Petition of Nearhoof
, 178 W. Va.
359, 359 S.E.2d 587 (1987); Syl. Pt. 2, Visitation of Cathy L.(R.)M. v. Mark
, 217 W. Va. 319, 617 S.E.2d 866 (2005). (See
We have also held that [t]he 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. Pt. 3, Lindsie D.L. v. Richard W.S.
, 214 W. Va.
750, 591 S.E.2d 308 (2003). These are two very important principles which permeate
our law in both custodial and visitation rights cases as well as in abuse and
neglect proceedings. They must be given every consideration in a case such as
the one presently before the Court. To that end, the 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.
then, to the August 26, 2004, Order on Remand. In it's Order remanding the matter
to the family court, the circuit court had directed the family court to make
a determination as to whether it was in the best interests of the children for
the Keesees to have visitation, taking into consideration the factors set out
in W. Va. Code §§ 48-10-501 and 48-10-502 and Mary Jean H.
v. Pamela Kay. R., 198 W. Va. 690, 693, 482 S.E.2d 675, 678 (1996).
The family court's Order on Remand, which was only two pages long, contained
only conclusory statements regarding the best interests of the children and the
remaining factors set forth in W. Va. Code § 48-10-502. Again, Ms.
Turley appealed the Order; however, the circuit court (presided over by a different
circuit judge) affirmed the family court's Order on November 15, 2004.
that the family court's Order on Remand does not satisfy the requirements of
W. Va. Code § 48-10-502. Merely restating the thirteen factors and
tacking on to them the court's feeling that each factor has been
satisfied is not enough. The family court must thoroughly evaluate how each factor
applies to the specific facts and allegations contained in the case before it.
The same evaluation must be made as to the best interests of the children. Accordingly,
we hold that the family court clearly erred in not making
appropriate, specific findings of fact with regard to those factors set forth
in W. Va. Code §§ 48-10-501 and 48-10-502. The circuit court
therefore erred in affirming the family Court's August 26, 2004, Order on Remand.
Finding that the family court's Order on Remand is insufficient, we need not
address the merits of the case.
the reasons set forth above, the Order of the Circuit Court of Cabell County
is reversed, and this case is remanded to the Family Court of Cabell County
for a new hearing and for specific findings of fact and conclusions of law
upon which the Family Court bases its decision. The August 26, 2004, Order
on Remand of the family court is stayed pending the entry of a new order.
Reversed and Remanded
Footnote: 1 The
couple's divorce was granted on the grounds of irreconcilable differences.
A protective order entered on August 9, 2002, remained in full force and effect
following the divorce.
Footnote: 2 John
Keesee passed away on November 6, 2004.
Footnote: 3 The
family court apparently ruled from the bench because no order regarding the
March 29, 2004, hearing can be found in the record.
Footnote: 4 The
family court entered a second Order on August 10, 2004, that slightly modified
the July 1, 2004, Order. Whereas the July Order dictates where the exchange
of the children should take place and that the Keesees shall not allow Kevin
Keesee to have any contact with the children, the August Order does not. And
whereas the July Order directs that the children should continue counseling
for five months, the August Order directs that counseling continue for six
Footnote: 5 W. Va.
Code §§ 48-2-15(b)(1) and 48-2B-1 were the precursors to the current
grandparent visitation act.