                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Nathan E. M., Respondent Below,                                                     FILED
Petitioner
                                                                               November 23, 2015
                                                                               RORY L. PERRY II, CLERK
vs.) No. 15-0231 (Harrison County 12-D-368-4)                                SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

George H. A., and Sara G. A., Petitioners Below,
Respondents


                              MEMORANDUM DECISION
        Petitioner Nathan M.,1 by counsel Thomas W. Kupec, appeals the Circuit Court of
Harrison County’s February 12, 2015, order refusing his appeal from the December 10, 2014,
order of the Family Court of Harrison County. Respondents George A. and Sara A.
(“respondents”), by counsel James B. Shockley, filed a response in support of the underlying
orders and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the
“lower Court did not have subject matter jurisdiction to hear the case.”

        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 July of 2012, respondents filed a petition for grandparent visitation of F.D.M. in family
court pursuant to West Virginia Code § 48-10-402. In their petition, respondents pled that they
were granted custody of Shannon M., F.D.M.’s biological mother, when she was approximately
seven years old, and raised her as their daughter, and continued their relationship until Shannon
M’s death on April 21, 2012. Shannon M. gave birth to F.D.M. on March 25, 2010. Sometime in
2011, Shannon M. and petitioner instituted divorce proceedings in the Family Court of Harrison
County. Respondents contend that as a result of the divorce proceedings, Shannon M. was
granted certain visitation with F.D.M. and that they participated in the visits with Shannon M.
and F.D.M. Further, respondents averred that on April 21, 2012, Shannon M. met petitioner at
Wal-Mart to exchange F.D.M. for an overnight visit, but that F.D.M.’s paternal grandfather


       1
        Because this case involves sensitive facts, we protect the identities of those involved by
using the parties’ first names and last initials, and identify the children by using their initials
only. See State ex rel. W.Va. Dept. of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356
S.E.2d 181, 182 n. 1 (1987).


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showed up during the exchange and shot and killed Shannon M.2 In August of 2012, petitioner
filed an answer to respondents’ petition.

         On March 25, 2013, the family court held its final hearing on respondents’ petition for
grandparent visitation. Counsel for both parties proffered to the family court that they reached an
agreement concerning respondents’ petition. Thereafter, respondents counsel set forth the general
terms of the agreement on the record, which petitioner confirmed as accurate. Additionally, the
circuit court heard testimony from the guardian ad litem, Judy Sawyer. Ms. Sawyer testified that
respondents should be granted visitation, that such visitation was in F.D.M.’s best interest, and
approved the terms of the proposed agreement. Pursuant to the parties’ agreement, the family
court entered an “Order Granting Grandparent Visitation” on April 9, 2013, granting respondents
visitation on the third Saturday of each month and certain holidays.

        In June of 2013, respondents filed a petition for contempt alleging that petitioner denied
respondents visitation in violation of the family court’s April 9, 2013, order. The family court
entered an order issuing a rule to show cause why petitioner should not be held in contempt for
violating the family court’s April 9, 2013, order. Thereafter, the family court held a hearing on
respondents’ motion and entered an order finding petitioner in contempt of the April 9, 2013,
order, and further ordered that respondents were entitled to make up the lost time from the
missed visits.3

       In July of 2014, petitioner filed a motion to dismiss in family court arguing that
respondents do not have standing to seek grandparent visitation of F.D.M. simply because they
claimed to be Shannon M.’s “foster parents.” Stated another way, petitioner argues that “foster
parents” do not meet the statutory definition of “grandparent” pursuant to West Virginia Code §
48-10-203. The family court held a hearing on petitioner’s motion on August 4, 2014. After
considering the parties’ arguments and reviewing the applicable statutory code sections, the
family court denied petitioner’s motion. In denying petitioner’s motion the family court found
that:

       The parties acknowledged that [respondents] were the foster parents of Shannon
       [] for a substantial period of time. The Court believed and held that even though
       “legal” custody may not be granted to a foster parent, that the fact that [Shannon]
       lived in the authorized custody of [respondents] for a substantial number of years
       to adulthood as a foster child was sufficient to justify the definition of the term
       “grandparent” as a person of previously being granted custody of a parent of a
       minor child, for whom visitation is sought, under West Virginia law.

       Further, grandparent visitation was awarded pursuant to that agreement reached
       by all parties as reflected in that order entered April 9, 2013.
       2
           The paternal grandfather was convicted of first-degree murder in 2012.
       3
         In May of 2014, petitioner pled guilty to one count of concealment or removal of minor
child from custodian or from person entitled to visitation. The circuit court sentenced petitioner
to a term of incarceration of one to five years. The circuit court suspended petitioner’s sentence
and placed him on supervised probation for five years.
                                                  2


         Subsequently, petitioner filed a petition for appeal in the circuit court arguing that
respondents lack standing to bring a claim for grandparent visitation because they were never
granted “legal custody” of Shannon M. Further, petitioner alleged that it is clear from a plain
reading of West Virginia Code § 48-10-203, that respondents do not meet the definition of
“grandparents” for the purpose of seeking grandparent visitation. Importantly, petitioner
conceded that respondents “were the foster parents of Shannon.” In January of 2014, respondents
filed a response arguing that: 1) petitioner admitted that respondents were F.D.M.’s grandparents
in his verified answer to their petition for grandparent visitation and that he entered into an
agreed order granting them grandparent visitation; 2) petitioner was barred by principles of
estoppel from asserting an inconsistent position in the course of a suit involving the same set of
facts; 3) petitioner waived his ability to litigate the definition of “grandparent; and 4) under a
plain reading of the statute, they clearly had “custody” of Shannon M. as her foster parents.
Ultimately, the circuit court refused petitioner’s petition for appeal. It is from this order that
petitioner appeals.

       We review the matter under the following standard:

               In 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., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

       On appeal, petitioner states that the “lower Court did not have subject matter jurisdiction
to hear the case.” However, petitioner’s argument is more appropriately couched in terms of
standing.4 Simply put, petitioner argues that respondents are not “grandparents” as defined in
West Virginia Code § 48-10-203, and lack standing to seek grandparent visitation because they
were not granted “custody” of Shannon M.5

       We have often explained that

               [a]n appellant must carry the burden of showing error in the judgment of
       which he complains. This Court will not reverse the judgment of a trial court
       unless error affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.
       4
        The Court notes that the family court had subject matter jurisdiction to hear the
underlying petition for grandparent visitation. West Virginia Code § 51-2A-2(a)(4) provides that
the family court shall exercise jurisdiction over “[a]ll actions for grandparent visitation[.]”
       5
        Pursuant to West Virginia Code § 48-10-203, “‘[g]randparent’ means a biological
grandparent, a person married or previously married to a biological grandparent, or a person who
had previously been granted custody of the parent of a minor child with whom visitation is
sought.”
                                                3


Syl. Pt. 5, Skidmore v. Skidmore, 225 W.Va. 235, 691 S.E.2d 830 (2010) (citation omitted). We
will not presume error in that the family court and circuit court failed to consider that
respondents had custody of Shannon M. as her foster parents. The record on appeal is devoid of
any evidence that respondents did not have custody of Shannon M. since she was approximately
seven years old. To the contrary, petitioner admits that respondents were Shannon M.’s foster
parents. Furthermore, the family court found that respondents had custody of Shannon M. “for a
substantial number of years to adulthood.” Importantly, this Court has long held that “[a]lthough
parents have substantial rights that must be protected, the primary goal . . . as in all family law
matters, must be the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.
Va. 79, 479 S.E.2d 589 (1996). We have also held that, “[i]n a contest involving the custody of
an infant the welfare of the child is the polar star by which the discretion of the court will be
guided.” Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948). Here,
the guardian ad litem for F.D.M. submitted a detailed report to the family court recommending
that it was in F.D.M.’s best interests to have grandparent visitation with respondents.
Accordingly, the family court found that it was in F.D.M.’s best interests to grant respondents
grandparent visitation. Therefore, under the specific facts of this case, we cannot find that the
circuit court erred in refusing petitioner’s petition for appeal from the family court.

        For the foregoing reasons, we find no error in the circuit court’s February 12, 2015,
order, and we hereby affirm the same.


                                                                                          Affirmed.

ISSUED: November 23, 2015


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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