                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
                                                                             February 7, 2020
In re A.D. and J.D.                                                          EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
No. 19-0554 (Randolph County 2018-JA-097 and 2018-JA-098)



                              MEMORANDUM DECISION


       Petitioners K.B. and P.B., by counsel Steven B. Nanners, appeal the Circuit Court of
Randolph County’s May 16, 2019, order denying their motion for visitation with the children.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem, Heather
M. Weese, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioners argue that the circuit court erred in denying their motion to continue the
hearing on the issue of visitation and denying their motion for visitation with the children.

        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 November of 2010, petitioner K.B., the children’s grandmother, was granted
guardianship over the children by the Randolph County Circuit Court in case number 10-FIG-3.
In August of 2018, the DHHR filed a child abuse and neglect petition against petitioner K.B. The
DHHR alleged that petitioner K.B. was physically and emotionally abusive toward the children.
Specifically, the children reported several instances in which petitioner K.B. smacked them in
the face. A.D. reported that the instances often occurred when the children did not perform a task
to petitioner K.B.’s liking. J.D. also reported an instance in which petitioner K.B. smacked him

       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).




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in the knee with a broom when he did not sweep the floors correctly. Petitioner K.B. waived her
preliminary hearing.2

        At an adjudicatory hearing held in February of 2019, petitioners relinquished their
guardianship rights to the children. Full legal and physical custody of the children was restored
to their father. Petitioners requested visitation with the children. The circuit court ordered the
children’s therapists to provide a “written report outlining any concerns regarding visitation” and
provide them to the parties by March of 2019.

        J.D.’s therapist provided a letter stating that she did not have “the information base or the
objectivity necessary to make a psycho-legal recommendation on visitation.” Nevertheless, based
upon her interactions with J.D., the therapist noted that the child expressed “fear related to his
experience with [petitioner K.B.] and has not communicated . . . a desire for continued
interactions.” Further, based upon his clinical levels of anger and post-traumatic stress, the
therapist opined that J.D. would ideally need to be removed from any traumatic reminders “in
order to have space and time to process events and emotions and learn how to manage any
triggers [he] will encounter in the future.” The therapist noted that J.D. had made progress in
therapy and noted that if improvements continue and J.D. developed a desire to visit with
petitioners, she would leave that decision to the circuit court’s discretion.

        A.D.’s therapist also provided a letter to the circuit court in which she opined that
“[A.D.’s] symptoms of anxiety and depression can be related to her experiences with abuse and
she has identified feelings of fear related to experiences with [petitioner K.B.] and has
consistently stated that she does not want to see her.” The therapist opined that A.D. had been
working on processing her traumatic experiences, working towards healing and recovery, and
learning to identify and maintain healthy relationships by learning to trust her perceptions. The
therapist concluded that “[f]orcing visitation with [petitioner K.B.] against [A.D.’s] will would
be counter productive to her progress thus far” and that visits with petitioner K.B. should only be
considered if A.D. desired to reinitiate contact.

        The circuit court held a hearing on petitioners’ motion for visitation in May of 2019. At
the outset, petitioners requested to continue the hearing and obtain the opinion of another
therapist based on J.D.’s therapist’s statement that she did not have the “objectivity necessary to
make a psycho-legal recommendation.” The circuit court deferred ruling on the objection until
after the therapist could testify and explain her statement. J.D.’s therapist testified that by stating
that she could not make a “psycho-legal recommendation” she meant that she was “not in a
position to decide whether or not something should happen” from a legal standpoint and did not
feel like she could make a legal conclusion. However, the therapist testified that she felt that she


       2
         While petitioner P.B., the children’s step-grandfather, was not appointed as a legal
guardian in 2010, he was recognized as having acted in a parental role toward the children and
was added to the proceedings at the preliminary hearing, appointed counsel, and permitted to
participate in the abuse and neglect proceedings. The DHHR also included allegations of
extensive substance abuse against the children’s mother.



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could opine on what would be best for J.D. The therapist explained that she had been working
with J.D. on avoiding triggers, or reminders of experiences, and that his triggers were “related to
his experiences while living with [petitioners].” She further noted that, for the purposes of J.D.’s
therapy, “it would be best if he was not exposed to triggers.” The therapist also testified that J.D.
had expressed to her that he does not desire visitation with petitioners and that she believed his
wishes should be respected.

        A.D.’s therapist also testified, explaining that A.D. was suffering from symptoms of
anxiety and depression related to situations that occurred while she lived with petitioners. The
therapist recalled a specific instance wherein A.D. described being tied to a chair for a long
period of time by petitioner K.B. The therapist testified that A.D. “has maintained adamantly
from the beginning” that she does not want to see petitioner K.B. The therapist further opined
that she did not feel that it would be in A.D.’s best interest to have contact with petitioner K.B.
Following this testimony, petitioners renewed their motion to continue, arguing that J.D.’s
therapist’s testimony was inconsistent with her letter and that another opinion was necessary.
Petitioners added that a continuance was necessary based upon the therapists’ testimony that an
intake assessment for the children had been completed. Petitioners argued that the DHHR’s
failure to provide these documents to support the medical diagnoses mentioned by the therapists
violated discovery requirements. However, the circuit court denied the motion, finding that the
intake assessment was irrelevant in determining whether visitation was in the best interests of the
children and that J.D.’s therapist had adequately explained her statement.

         A DHHR worker then testified that she spoke to the children individually and both
children—then ages thirteen and nine—expressed to her that they did not want to visit with
petitioners. Petitioners did not present any testimony or evidence in support of their motion for
visitation. Counsel for the father requested that the circuit court deny petitioners’ motion. After
hearing testimony, the circuit court found that based upon the evidence presented, it was not in
the best interests of the children to have visitation with petitioners. Nevertheless, the circuit court
provided that the therapists would be given latitude to incorporate petitioners into the children’s
therapy if the children expressed any type of desire to reinitiate contact in the future. It is from
the May 16, 2019, order denying visitation that petitioners appeal.3

       The Court has previously established the following standard of review:

              “Although 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


       3
         The mother’s parental rights were terminated around February of 2019. The permanency
plan for the children is to remain in the care of their father.



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       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.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
       470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

        Petitioners first argue that the circuit court erred in denying their motion to continue the
hearing on the issue of visitation. According to petitioners, the therapists did not have sufficient
information to address a recommendation of visitation and did not properly consider the
“psychological parent” status of petitioners. Petitioners further contend that it was erroneous for
the circuit court to deny their motion to continue when the therapists discussed the children’s
medical diagnoses but failed to provide the supporting documentation to petitioners. Petitioners
contend that they were essentially “ambushed” and were not prepared to discuss the children’s
mental health. Lastly, petitioners contend that J.D.’s therapist’s testimony contradicted the
recommendation of her letter and, therefore, was unreliable. We disagree.

         This Court has previously held that “[w]hether a party should be granted a continuance
for fairness reasons is a matter left to the discretion of the circuit court, and a reviewing court
plays a limited and restricted role in overseeing the circuit court’s exercise of that discretion.”
Tiffany Marie S., 196 W. Va. at 235, 470 S.E.2d at 189 (citing State v. Judy, 179 W. Va. 734,
372 S.E.2d 796 (1988)). We find no abuse of discretion in the circuit court’s denial of the motion
to continue. Contrary to petitioners’ arguments, the record establishes that the therapists had
sufficient information to make a recommendation on visitation. The circuit court noted that the
therapists had been working with the children for at least six months and had established rapport
with them. The therapists testified that they made their recommendations based nearly entirely
upon their interactions with the children and did not consider much outside information, but were
able to opine on the best interests of the children. To the extent petitioners argue that the
therapists should have been given some sort of documentation regarding their status as
psychological parents, we note that petitioners do not reference any specific documentation that
should have been provided. Indeed, petitioners fail to cite to any portion of the record
establishing that they were deemed psychological parents by the circuit court. Further, any
argument that J.D.’s therapist was not qualified to make a recommendation based on her
statement that she could not make a “psycho-legal recommendation” is without merit as the
therapist was able to explain that she simply meant she did not feel that she could reach a legal
conclusion. The therapist did believe, however, that she possessed the necessary information to
make a recommendation in regard to what was in J.D.’s best interest. As such, we find no merit
in petitioner’s argument that additional time was needed in order to provide documentation to the
therapists or to obtain another opinion in addition to that of J.D.’s therapist.




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        We likewise find no merit in petitioners’ argument that a continuance should have been
granted when they were not provided the children’s intake assessments documenting their
diagnoses.4 While the therapists did mention the intake assessments and the resulting diagnoses,
their recommendations regarding visitation were nearly entirely based upon their interactions
with the children and the children’s wishes. The circuit court found that the children’s diagnoses
were not determinative of the issue of the children’s best interests. We agree. There is nothing to
suggest the intake evaluations were relevant or material to the issue of whether visitation with
petitioners was in the children’s best interests. Rather, the therapists, who had spent six months
counseling the children, were in a better place to provide information on the issue than an
assessment completed at the intake. Further, as noted above, it is clear that the therapists
considered more than the intake assessment in making their recommendation. Accordingly, we
find no error in the circuit court’s denial of petitioners’ motion to continue.

         Petitioners next argue that the circuit court erred in not granting their motion for
visitation. They again reference the therapists’ failure to consider their status as psychological
parents and the DHHR’s failure to provide them with the intake assessments to support their
argument that the circuit court improperly decided on the issue of visitation. We disagree.

       This Court has held that

                “[w]hen 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.” Syl. Pt. 5, In re Christina L., 194 W.
       Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002).5



       4
        Petitioners cite to criminal cases in support of their argument that they should have been
provided the intake assessments in discovery. They cite to no authority demonstrating how these
cases apply to abuse and neglect proceedings.
       5
        Again, petitioners cite to no portion of the record demonstrating that the circuit court
found them to be the psychological parents of the children. We have previously held that

       [a] psychological parent is a person who, on a continuing day-to-day basis,
       through interaction, companionship, interplay, and mutuality, fulfills a child’s
       psychological and physical needs for a parent and provides for the child’s
       emotional and financial support. The psychological parent may be a biological,

                                                                                   (continued . . .)
                                                5
        Here, the children’s therapists testified that the children did not wish to visit with
petitioners and that visitation with petitioners would be a detriment to the children’s progress in
therapy. Again, petitioners reference no documentation regarding their status as psychological
parents that should have been considered by the therapists. As noted above, the therapists were
aware of the history of this family as provided by the children. Additionally, as discussed above,
the content of the intake assessment was irrelevant to the issue of whether visitation was in the
children’s best interests, especially when viewed in light of the testimony of the therapists
following six months of therapy with the children. Further, the DHHR worker also testified that
the children did not desire visitation with petitioners.6 Thus, the evidence supports the circuit
court’s finding that visitation with petitioners was contrary to the children’s best interests.
Moreover, the circuit court provided that the therapists could address future visitation with
petitioners if the children expressed a desire to reinitiate contact. As such, an avenue has been
provided for petitioners to visit with the children in the future if the children request it and if it is
determined that such visitation is in the children’s best interests. Accordingly, we find no error in
the circuit court’s denial of petitioners’ request for visitation.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 16, 2019, dispositional order is hereby affirmed.
                                                                                    Affirmed.

ISSUED: February 7, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

        adoptive, or foster parent, or any other person. The resulting relationship between
        the psychological parent and the child must be of substantial, not temporary,
        duration and must have begun with the consent and encouragement of the child’s
        legal parent or guardian. To the extent that this holding is inconsistent with our
        prior decision of In re Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), that
        case is expressly modified.

Syl. Pt. 3, In re Clifford K., 217 W. Va. 625, 619 S.E.2d 138 (2005). Although the record is
unclear as to whether petitioners were designated as psychological parents, it is undisputed that
they had sole custody of the children for a number of years while petitioner K.B. exercised legal
guardianship over the children. Due to this continued care and their claims of having a bond with
the children, we will address their rights to visitation under the standard set forth above.
        6
        On appeal, the guardian notes that the children continue to maintain that they were
physically abused at the hands of petitioner K.B. and do not desire visitation with petitioners.



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