IN RE: ALYSSA W. & SIERRA H.
Appeal from the Circuit Court of Mineral County
Honorable Phil Jordan, Judge
Civil Action Nos. 00-JA-37 & 38
Submitted: June 7, 2005
Filed: July 6, 2005
Robert H. had been charged with one count of first degree sexual assault, one
count of first degree sexual abuse, and two counts of sexual abuse by a custodian
resulting from his abuse of Alyssa. W. On March 26, 2003, he entered a plea of
guilty to six counts of third degree sexual abuse and was sentenced to 90 days
incarceration on each of the six counts to be served consecutively. He was incarcerated
from August 4, 2003, to June 15, 2004. His last visitation with Sierra H. was
just prior to his date of incarceration.
Following Robert H.'s release from incarceration, he moved for reinstatement of his visitation with Sierra H. which was opposed by Mildred H. After two hearings on the matter, the circuit court, by order of September 1, 2004, granted Robert H.'s motion for resumption of visitation with the visits to take place on the first and third Sundays of each month from 3:00 p.m. until 6:00 p.m., beginning on September 12, 2004. In its order, the circuit court held that Mildred H. had the burden of proof to show why visits between Sierra H. and Robert H. should not resume as previously ordered. In support of its decision to resume visitation, the circuit court found in part:
(a) Visits between [Sierra H.] and Robert [H.] are in the best interests of [Sierra H.] This was shown from evidence that [Sierra H.] had always been excited about seeing her father, Robert [H.], for past visitation, so much so that [Sierra H.] would sometimes cry when she had to leave him or when she thought visitation was going to be cancelled or postponed. Evidence was also presented that during those visits [Sierra H.] and Robert [H.] played and interacted appropriately, got along well, and seemed to enjoy themselves. [Sierra H.] never showed any signs of being afraid of Robert[H.]
There was only a weak showing that visits between [Sierra H.] and Robert [H.]
would be harmful to [Alyssa W.], considering that no one had spoken to [Alyssa
W.] in the last year about her feelings concerning [Sierra H.] visiting with
Robert [H.] Secondly, [Alyssa W.'s] past emotional and behavioral issues were
not caused simply due to the continued interaction between [Sierra H.] and Robert
[H.] Additionally, there was evidence that any fear that [Alyssa W.] had about
[Sierra H.] visiting Robert [H.] could be alleviated by full disclosure of the
visitation, trust-building between [Alyssa W.] and the supervisor of visitation,
and further counseling.
Mildred H. appealed the circuit court's order. On September 9, 2004, this Court stayed visitation between Robert H. and Sierra H. pending resolution of this appeal.
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 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.
Thus, Troxel instructs that a judicial determination regarding whether grandparent visitation rights are appropriate may not be premised solely on the best interests of the child analysis. It must also consider and give significant weight to the parents' preference, thus precluding a court from intervening in a fit parent's decision making on a best interests basis.
In Re Grandparent Visitation of Cathy L. v. Brent R., No. 31864, slip
op. at 18-19 (May 11, 2005). When we apply the legal principle in Troxel to
the instant facts, we find that not only did the circuit court fail to give
special weight to the determination of Mildred H., the fit parent herein, regarding
Sierra H.'s best interests, but it also improperly placed the burden on her
to disprove that Robert H.'s visitation with Sierra H. is not in Sierra H.'s
In support of her determination that continued post-termination visitation of Robert H. with Sierra H. is not in Sierra H.'s best interests, Mildred H. avers that continued visitation would negatively impact Sierra H.'s relationship with her half-sister Alyssa W., the victim of Robert H.'s sexual abuse. In addition, Mildred H. asserts that continued visitation will unreasonably interfere with Sierra H. and Alyssa W.'s permanent placement with her. Finally, Mildred H. argues that a strong emotional bond has not been established between Sierra H. and Robert H. due to Sierra's age and the fact that she has not seen Robert H. for more than a year.
We agree with Mildred H. Concerning post-termination visitation, this Court held in Syllabus Point 5 of In Re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995) that,
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.
This Court's holding in Christina L. is a simple recognition that even where termination of parental rights is justified, a continued relationship between parent and child by means of post-termination visitation may be valuable to the child's emotional well-being. State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 260, 470 S.E.2d 205, 214 (1996) (citation omitted). To that end, it should be emphasized that post-termination visitation could be ordered not as a right of the parent, but rather as a right of the child. In Re Christina L., 194 W.Va. at 455 n. 9, 460 S.E.2d at 701 n. 9 (citations omitted). Specifically, [i]t is the right of the child to continued association with those with whom he shares an emotional bond which governs the decision. In Re Billy Joe M., 206 W.Va. 1, 5 n. 10, 521 S.E.2d 173, 177 n. 10 (1999). Finally, this Court has stated that post-termination visitation should be allowed if it is in the children's best interest and would not unreasonably interfere with their permanent placement. State ex rel. Amy M., 196 W.Va. at 260, 470 S.E.2d at 214.
Regarding the issue of whether Sierra H. has established a strong emotional bond with Robert H., we are left with the definite and firm conviction that the circuit court committed error. The circuit court merely found, as set forth above, that,
H.] had always been excited about seeing her father,
Robert [H.], for past visitation, so much so that [Sierra H.] would sometimes
cry when she had to leave him or when she thought visitation was going to be
cancelled or postponed. Evidence was also presented that during those visits
[Sierra H.] and Robert [H.] played and interacted appropriately, got along
well, and seemed to enjoy themselves. [Sierra H.] never showed any signs of
being afraid of Robert [H.]
We believe that the evidence relied upon by the circuit court is inadequate to establish that Sierra H. developed a close emotional bond with Robert. H. (See footnote 4) Frankly, the fact that Sierra was only fourteen months old when the instant proceedings commenced below and the fact that her subsequent contact with Robert H. was limited to regular visits are alone sufficient to cast serious doubt on the notion that Sierra H. developed the enduring and emotionally intimate relationship with Robert H. inherent in the phrase close emotional bond.
indicate that a close emotional bond generally takes several years to develop.
Thus, the possibility of post-termination visitation is usually considered in
cases involving children significantly older than Sierra H. For example, in In
Re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), this Court found that the
circuit court was required to determine whether post-termination visitation should
be granted where the child was five years of age. In In the Matter of Elizabeth
A.D. v. Hammack, 201 W.Va. 158, 494 S.E.2d 925 (1997), this Court determined
that the circuit court's denial of post-termination visitation was clearly erroneous
in light of evidence of a close emotional bond between a 13-year-old child and
her mother. Finally, in In Re Billy Joe M., supra, we found that
remand was proper for an additional evaluation regarding the potential for post-termination
visitation where one child was 12 and the other was 10 years of age at the time
the neglect and abuse petition was filed.
Also, as set forth above, before ordering post-termination visitation, a circuit court should consider whether such visitation would unreasonably interfere with the child's permanent placement. It is apparent to this Court that continued visitation would unreasonably interfere with the household in which both Sierra H. and Alyssa W. reside with their mother. According to Alyssa W.'s guardian ad litem, she has indicated that she does not believe that Robert H. should have any further contact with her half-sister, Sierra H. (See footnote 5) This is certainly understandable. Frankly, it is difficult for this Court to imagine that Sierra H.'s continued visitation with Robert H., the man who sexually abused Alyssa W., would not cause considerable and unreasonable stress and be disruptive to the sibling relationship shared by Sierra H. and Alyssa W. Obviously, such stress and disruption would negatively impact the entire household to the detriment of both Sierra H. and Alyssa W.