A., Keith Allen v. A., Jennifer J.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 24157
_____________
KEITH ALLEN A.,
Appellee
v.
JENNIFER J. A.(A.),
Appellant
_________________________________________________________________
Appeal from the Circuit Court of Lincoln County
Honorable E. Lee Schlaegel, Jr., Judge
Civil Action No. 85-C-361
AFFIRMED AND REMANDED WITH DIRECTIONS
_________________________________________________________________
Submitted: September 10, 1997
Filed: December 17, 1997
Andrew S. Nason,
Esq. Robert
S. Baker, Esq.
Pepper &
Nason Beckley,
West Virginia
Charleston, West
Virginia Attorney
for the Appellant
Attorney for the
Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In
reviewing the judgment of the lower court this Court does not
accord special weight to the lower court's conclusions of law,
and will reverse the judgment below when it is based on an
incorrect conclusion of law." Syl. Pt. 1, Burks v. McNeel,
164 W. Va. 654, 264 S.E.2d 651 (1980).
2. "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." Syl. Pt.
4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
3. "In
visitation as well as custody matters, we have traditionally held
paramount the best interests of the child." Syl. Pt. 5,
Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
4. "Because of the extraordinary nature of supervised visitation, such visitation should be ordered when necessary to protect the best interests of the children. In determining the best interests of the children when there are allegations of sexual or child abuse, the circuit court should weigh the risk of harm of supervised visitation or the deprivation of any visitation to the parent who allegedly committed the abuse if the
allegations are false against the risk of harm of unsupervised
visitation to the child if the allegations are true." Syl.
Pt. 3, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
5. "If
the protection of the children provided by supervised visitation
is no longer necessary, either because the allegations that
necessitated the supervision are determined to be without
"credible evidence " (Mary D. v. Watt, 190 W.Va. 341,
348, 438 S.E.2d 521, 528 (1992)) or because the noncustodial
parent had demonstrated a clear ability to control the
propensities which necessitated the supervision, the circuit
court should gradually diminish the degree of supervision
required with the ultimate goal of providing unsupervised
visitation. The best interests of the children should determine
the pace of any visitation modification to assure that the
children's emotional and physical well being is not harmed."
Syl. Pt. 4, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193
(1996).
6. "Where supervised visitation is ordered pursuant to W. Va. Code, 48-2-15(b)(1) [1991], the best interests of a child include determining that the child is safe from the fear of emotional and psychological trauma which he or she may experience. The person(s) appointed to supervise the visitation should have had some prior contact with the child so that the child is sufficiently familiar with and trusting of that person in order for the child to have secure feelings and so that the visitation is not harmful to his or her emotional well being. Such a determination should be incorporated as a finding of the family law
master or circuit court." Syl. Pt. 3, Mary D. v. Watt,
190 W.Va. 341, 438 S.E.2d 521 (1992).
7. "Prior to ordering supervised visitation pursuant to W.Va. Code, 48-2-15(b)(1) [1991], if there is an allegation involving whether one of the parents sexually abused the child involved, a family law master or circuit court must make a finding with respect to whether that parent sexually abused the child. A finding that sexual abuse has occurred must be supported by credible evidence. The family law master or circuit court may condition such supervised visitation upon the offending parent seeking treatment. Prior to ordering supervised visitation, the family law master or circuit court should weigh the risk of harm of such visitation or the deprivation of any visitation to the parent who allegedly committed the sexual abuse against the risk of harm of such visitation to the child. Furthermore, the family law master or circuit court should ascertain that the allegation of sexual abuse under these circumstances is meritorious and if made in the context of the family law proceeding, that such allegation is reported to the appropriate law enforcement agency or prosecutor for the county in which the alleged sexual abuse took place. Finally, if the sexual abuse allegations were previously tried in a criminal case, then the transcript of the criminal case may be utilized to determine whether credible evidence exists to support the allegations. If the transcript is utilized to determine that credible evidence does or does not exist, the transcript must be made a part of the record in the civil proceeding so that this Court, where appropriate, may adequately review the civil record to conclude whether the
lower court abused its discretion." Syl. Pt. 2, Mary D.
v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992).
8. "When
serious allegations of child abuse or neglect are made in a
custody case, the family law master and circuit judge should
direct the Department of Health and Human Resources to intervene
and conduct home studies and the court should make full inquiry
into these allegations. Furthermore, where serious allegations of
abuse and neglect arise, the protections afforded children under
abuse and neglect law should apply." Syl. Pt. 2, Boarman v.
Boarman, 190 W.Va. 533, 438 S.E.2d 876 (1993).
Per Curiam:See footnote 1
1
Ms. Jennifer
J. A. (hereinafter "Appellant") appeals the denial, in
the Circuit Court of Lincoln County, of her motion to restrict
visitation where sexual abuse has been alleged. We affirm the
decision of the lower court and remand with directions.
I.
The Appellant and Appellee Mr. Keith A. A. (hereinafter "Appellee") were divorced in 1985. The divorce order granted custody of the parties' child, Brandon, born on June 17, 1985, to the Appellant, with reasonable visitation to the Appellee. The visitation apparently proceeded without incident from 1985 through 1990. On March 11, 1990, however, subsequent to a visit with the Appellee father, Brandon, then age four, and his half- brother Timothy ShaneSee footnote 2 2 reported sexual abuse by the Appellee's father, Lloyd A.
On March 12,
1990, the Appellant took the younger child, Timothy, to a
physician for an examination. The physician then reported the
incident to the office of Child Protective Services in Hamlin,
West Virginia. On March 13, 1990, the Appellant took the older
child, Brandon, to the physician for an examination. According to
the Appellant, while Brandon was waiting in the doctor's office
for his examination, his grandfather, Lloyd A., allegedly entered
the room, grabbed Brandon, and threatened him.
On March 13,
1990, the Appellant contacted Child Protective Services and the
Lincoln County Primary Care Center regarding the allegations of
abuse. While Brandon initially indicated that his grandfather had
touched his "pee-pee," in a March 14, 1990, interview
with Child Protective Services social worker Ruth Wade, Brandon
indicated that another individual, Papa Harlan Adkins, an elderly
friend of the Appellant, had placed Vaseline on his bottom. Ms.
Wade apparently reported the allegations to the West Virginia
State Police, but no further investigation was made.
Based upon the
allegations of sexual abuse, the Appellant insisted that the
Appellee prevent visitation between the children and Lloyd A.
Upon the failure of the Appellee to provide such assurance, the
Appellant refused to allow the Appellee to visit the children.
Consequently, the Appellee, on August 13, 1990, petitioned the
lower court for
visitation and requested a change of custody due to the
Appellant's interference with the previous custody arrangements.
On August 20, 1990, prior to the hearing on that petition,
Brandon was interviewed by Eila Phailbus of the Prestera Mental
Health Center in Huntington. Brandon indicated that Papaw (Lloyd
A.) had touched his "pee-pee" and that "Papaw said
Mommy would die if I tell her about Papaw touching my
peepee."See footnote 3 3
Ms. Phailbus recommended individual and family counseling for
Brandon to evaluate the allegations of sexual abuse.
In October 1990, the Appellant permitted the Appellee to visit Brandon and Timothy. After such visitation, the children once again reported continued sexual abuse. A hearing on the Appellee's motion for a change in custody was held on November 1, 1900, before the family law master. At that hearing, the Appellant testified that she had removed a pubic hair from Timothy's anal region. That hair was allegedly placed in a jar in a locked cabinet in the family law master's office. Based upon the allegations of sexual abuse, the family law master ordered supervised visitation between the father, children, and paternal grandparents. The paternal grandmother was designated as the supervisor for such visitation.
The family law master further requested the prosecuting
attorney's office to conduct an investigation into the
allegations of abuse.See
footnote 4 4
Upon the
direction of the family law master, psychological examinations of
the children, parents, and paternal grandfather were conducted in
May and June, 1991, by Barbara Tinsman, M.A., a licensed
psychologist employed by Family Services, Inc., in Huntington,
West Virginia. During the examinations, the children reported the
instances of sexual abuse, but Ms. Tinsman concluded that she was
unable to draw any definite psychological conclusions due to the
time that had elapsed between the alleged instances of abuse and
her inquiries. Ms. Tinsman administered personality profiles
developed by the Minnesota Multiphasic Personality Inventory
(MMPI), and concluded that Lloyd A.'s profile was "most
unusual" and that "it would not be considered highly
unusual that such a person could quite convincingly lie about
their involvement in child abuse." Ms. Tinsman concluded
that Lloyd A. should not have any contact with the children
except under supervision.
During a September 5, 1991, family law master hearing on the issue of visitation, the Appellant reiterated that while she did not wish to deprive the Appellee father of visitation, she did desire to protect the children from the paternal grandfather. As a result
of the September 5, 1991, hearing, a September 16, 1991, order
permitted the Appellee to conduct visitation, with the following
conditions: (1) that there be no further accusations of any
improper conduct, (2) that the grandparents were out of the area
and that there be no contact with the grandparents or their
residence, and (3) that the Appellee provide transportation. The
family law master further directed that Brandon and Timothy
undergo counseling.
Subsequent to
a September 22, 1991, visit with the Appellee, the children again
reported sexual abuse.See
footnote 5 5 On September 23, 1991, this allegation
of abuse was communicated to Child Protective Services. Dr.
Kathleen Previll, a pediatrician with the Department of
Pediatrics of West Virginia University's Health Sciences Center,
Charleston Division, evaluated the children on October 23, 1991,
and concluded that Brandon was the victim of sexual abuse. Dr.
Previll noted a fissure or tear in Brandon's anal ring and
redness at two points along the anal ring. She reported, "I
would highly suspect that this child has been a victim of sexual
abuse." Although Timothy's examination was normal, Dr.
Previll explained that a normal examination does not necessarily
indicate that no abuse has occurred.
In counseling
sessionsSee footnote 6 6
initiated in November 1991 with Family Services of the
Kanawha Valley and continuing to March 17, 1992, Brandon and
Timothy continued to recount instances of sexual abuse and
indicated that the Appellee had also participated in the abuse.
In a report dated March 19, 1992, Peggy Dennison, a counselor
with Family Services, reported that Brandon had related an
incident in which his father had touched his penis and butt.
Brandon further related that he was forced to perform oral sex on
the father and that he was touched by both his paternal
grandparents, Lloyd A. and Ouida A. Both children reported being
held down and threatened not to tell anyone about the abuse.
The Appellee received counseling conducted by Tad Vickers, a counselor and physician's assistant employed with MacCallum and Associates of Charleston, West Virginia.See footnote 7 7 Mr. Vickers testified during a November 29, 1993, hearing before the family law master that he believed that the Appellee was not a danger to his children. He further explained that the allegations of abuse could be the result of "coaching," mistake, or
misunderstanding. Mr. Vickers did not view the videotape of
Brandon's allegations; nor did he interview Brandon or Timothy.
During 1994
interviews, psychologist Robert G. Martin of Lincoln County was
consulted by attorneys for each of the parties. Mr. Martin was
provided with copies of the reports of the previous psychological
assessments, the medical reports, and a videotape of Brandon's
statements. Subsequent to his review of these documents, Mr.
Martin reported that he found reason to doubt the truth of the
boys' allegations. In a letter to the family law master dated
March 18, 1994, Mr. Martin indicated that there were "very
plausible alternative explanations for the allegations. . .
." Mr. Martin suggested that Brandon's complaints regarding
pain in the rectal area could be attributed to chronically poor
hygiene which was then "magnified" as the story was
retold. Mr. Martin was unable to offer an alternative
explanation, however, for the anal fissures observed by Dr.
Previll.
Subsequent to a evidentiary hearing in May 1994, the family law master issued her recommended decision on February 8, 1995. The family law master concluded that the evidence regarding the Appellee's alleged abuse was inconclusive.See footnote 8 8 She found that the
"preponderance of the evidence"See footnote 9 9 did not support a
finding that the Appellee physically harmed or sexually molested
either Brandon, his natural son, or Timothy, Brandon's half-
brother. The family law master also indicated concern "about
the emotional stability of the mother of the child, Jennifer
A." "Her description in her testimony of how she
learned that her child had allegedly been abused was disjointed
and confusing. Her reluctance to be concerned over her son's
statement the 'Papaw Harlan' had abused him is unusual." The
family law master, based upon her concerns about the Appellant,
ordered the Appellant to participate in counseling "in order
to help her deal with the issues involved in this recommendation.
. . ."
The family law master also recommended joint counseling for the Appellee and Brandon, "with the purpose of that counseling program being to reunify the parent-child bonds, which have been strained severely due to these allegations." Pursuant to her
recommendation, after six months of counseling, visitation
between the Appellee and Brandon outside the confines of the
counseling sessions could begin, limited to two hours per weekend
in public buildings, restaurants, or parks. After three months of
such public visitation, the visitation could progress to two
hours per weekend at the home of the Appellee. After three more
months of two-hour visitation at the Appellee's home, the
visitation could increase to one twenty-four hour period per
weekend. The family law master also indicated that the children
were not to be left alone with the paternal grandparents at any
time; nor were they to be permitted to have any contact with
Harlan Adkins.
On October 18,
1996, the circuit court affirmed the decision of family law
master, and the Appellant filed her petition for appeal with this
Court on February 24, 1997, alleging that the circuit court's
grant visitation, gradually becoming unsupervised, to the
Appellee is unjustified. The Appellant maintains that the record
contains sufficient and credible evidence of sexual abuse,
necessitating the deprivation, or at the very least, the
supervision of the Appellee's visitation with Brandon.
On July 3, 1997, the Appellant requested this Court to stay the lower court's order. In her motion, the Appellant explained that the counseling ordered by the lower court had not yet begun, based upon the parties inability to find an "agreeable counselor who is willing to take on this matter." This Court granted the stay of the lower court's order on July 15, 1997.
II.
The
allegations of sexual abuse in this matter arose in March 1990,
almost eight years ago, and Brandon is presently twelve years of
age. The inadequacy of the court system in addressing these
difficult issues effectively and in a timely manner is
dramatically demonstrated in this case. With this aggravated
procedural history in mind, the request presently before this
Court presents the simple question of whether the visitation
provided to the Appellee should be supervised or restricted, for
some specified period, based upon the myriad of sexual abuse
allegations.
In syllabus
point one of Burks v. McNeel, 164 W. Va. 654, 264 S.E.2d 651
(1980), we explained that "[i]n reviewing the judgment of
the lower court this Court does not accord special weight to the
lower court's conclusions of law, and will reverse the judgment
below when it is based on an incorrect conclusion of law."
In syllabus point four of Burgess v. Porterfield, 196 W.Va. 178,
469 S.E.2d 114 (1996), we specified that we review "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."
We have also
explained that certain prerequisites must exist to permit an
order of supervised visitation. In Mary D. v. Watt, 190 W.Va.
341, 348, 438 S.E.2d 521, 528
(1992) and Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193
(1996), we specified guidelines for the managing these difficult
cases in which allegations of sexual abuse have arisen. In
syllabus point five of Carter, we explained: "In visitation
as well as custody matters, we have traditionally held paramount
the best interests of the child." Id. at 241, 470 S.E.2d at
195. We reasoned that "[t]he best interests of the children
should determine the pace of any visitation modification to
assure that the children's emotional and physical well being is
not harmed." 196 W.Va. at 246, 470 S.E.2d at 200. In
syllabus point three of Carter, we stated:
Because
of the extraordinary nature of supervised visitation, such
visitation should be ordered when necessary to protect the best
interests of the children. In determining the best interests of
the children when there are allegations of sexual or child abuse,
the circuit court should weigh the risk of harm of supervised
visitation or the deprivation of any visitation to the parent who
allegedly committed the abuse if the allegations are false
against the risk of harm of unsupervised visitation to the child
if the allegations are true.
Syllabus point four continued:
If
the protection of the children provided by supervised visitation
is no longer necessary, either because the allegations that
necessitated the supervision are determined to be without
"credible evidence " (Mary D. v. Watt, 190 W.Va. 341,
348, 438 S.E.2d 521, 528 (1992)) or because the noncustodial
parent had demonstrated a clear ability to control the
propensities which necessitated the supervision, the circuit
court should gradually diminish the degree of supervision
required with the ultimate goal of providing unsupervised
visitation. The best interests of the children should determine
the pace of any visitation modification to assure that the
children's emotional and physical well being is not harmed.
In Mary D., we
emphasized that the structure of supervision must be designed for
the protection of the child's physical and emotional well-being.
We also addressed the issue of a father's acquittal on criminal
charges of sexual abuse and concluded that "being found 'not
guilty' under the criminal standard of 'beyond a reasonable
doubt' will not necessarily ease the emotional and psychological
trauma, if any, suffered by the children if visitation, even if
supervised, were to continue." 190 W.Va. at 347, 438 S.E.2d
at 527. Justice McHugh enumerated specific guidelines for the
development of a safe and secure atmosphere in which supervised
visitation, where appropriate, may be exercised.
In syllabus point three of Mary D., we stated as follows:
Where
supervised visitation is ordered pursuant to W. Va. Code,
48-2-15(b)(1) [1991], the best interests of a child include
determining that the child is safe from the fear of emotional and
psychological trauma which he or she may experience. The
person(s) appointed to supervise the visitation should have had
some prior contact with the child so that the child is
sufficiently familiar with and trusting of that person in order
for the child to have secure feelings and so that the visitation
is not harmful to his or her emotional well being. Such a
determination should be incorporated as a finding of the family
law master or circuit court.
In syllabus point two of Mary D., we explained:
Prior
to ordering supervised visitation pursuant to W.Va. Code,
48-2-15(b)(1) [1991], if there is an allegation involving whether
one of the parents sexually abused the child involved, a family
law master or circuit court must make a finding with respect to
whether that parent sexually abused the child. A finding that
sexual abuse has occurred must be supported by credible evidence.
The family law master or circuit court may condition such
supervised visitation upon the offending parent
seeking treatment. Prior to ordering supervised visitation,
the family law master or circuit court should weigh the risk of
harm of such visitation or the deprivation of any visitation to
the parent who allegedly committed the sexual abuse against the
risk of harm of such visitation to the child. Furthermore, the
family law master or circuit court should ascertain that the
allegation of sexual abuse under these circumstances is
meritorious and if made in the context of the family law
proceeding, that such allegation is reported to the appropriate
law enforcement agency or prosecutor for the county in which the
alleged sexual abuse took place. Finally, if the sexual abuse
allegations were previously tried in a criminal case, then the
transcript of the criminal case may be utilized to determine
whether credible evidence exists to support the allegations. If
the transcript is utilized to determine that credible evidence
does or does not exist, the transcript must be made a part of the
record in the civil proceeding so that this Court, where
appropriate, may adequately review the civil record to conclude
whether the lower court abused its discretion.
We recognized in Mary Ann P. v. William R. P., Jr., 197 W.Va. 1, 475 S.E.2d 1 (1996), that visitation could be totally suspended in certain situations, at least until the family underwent therapy. In Mary Ann P., we determined that the record before us was "clear that forced visitation at this time would be detrimental to the children and futile on the defendant's behalf without professional intervention." 197 W.Va. at 8, 475 S.E.2d at 8. In Mary Ann P., we also authorized the circuit court to determine the moment at which supervised visitation should resume and to "set forth a specific visitation schedule that takes into account the best interest of the children and the defendant's interest in attaining a close relationship with his sons." 197 W.Va. at 8, 475 S.E.2d at 8 (citing Weber v. Weber, 193 W.Va. 551, 457 S.E.2d 488 (1995); W. Va. Code, 48-2-15(b)(1993)).
In In re Carlita
B., 185 W.Va. 613, 408 S.E.2d 365 (1991), we stated:
In
the difficult balance which must be fashioned between the rights
of the parent and the welfare of the child, we have consistently
emphasized that the paramount and controlling factor must be the
child's welfare. "[A]ll parental rights in child custody
matters," we have stressed, "are subordinate to the
interests of the innocent child." David M. [v. Margaret M.],
[182 W.Va. 57, 60,] 385 S.E.2d [912] at 916 [ (1989) ].
185 W.Va. at 629, 408 S.E.2d at 381.
In State ex
rel. George B. W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852
(1997), we explained that "[i]t is a rare instance in which
a parent should be denied all contact with a child. An essential
element of our cases involving allegations of abuse by a parent
is the necessity for the family law master or circuit court to
hold hearings to ascertain the most viable approach to the
resolution of the difficult issues which will inevitably be
inherent in such matters."
In the present
case, the initial allegations were advanced almost eight years
ago. The case is also complicated by the disappearance of several
key components of evidence. The video allegedly portraying
Brandon's own presentation of the allegations of sexual abuse is
missing, and the pubic hair found on Brandon and given to the
police on January 3, 1991, is also missing. No testing of the
hair was ever done.
The guardian
ad litem for Brandon recommends reversal and remand for further
hearing and reopening for services to this family. The guardian
ad litem also recommends that an abuse and neglect petition be
filed, that a prosecutor be appointed , that Gary McMullen of
Cabell County Child Protective Services be appointed to oversee
the Lincoln County Child Protective Services worker, that Dr.
Paul Mulder of Affiliates in Psychology and Therapy, Inc.,
perform psychiatric and psychological evaluations of the parties,
including Brandon and the spouses of the parties, and that
visitation be stayed until the matter has been explored by an
expert regarding the effects visitation may have on Brandon.
The Appellee
has not had visitation with Brandon since 1991, and Brandon has
allegedly informed the guardian ad litem that he fears his father
and does not wish to see him. Brandon began his first year of
junior high school in the fall of 1997, and he is allegedly
experiencing difficulty with poor grades and minor disruptive
behaviors. Otherwise, according to the report of the guardian ad
litem, Brandon is progressing well. He enjoys the outdoors and
animals and speaks well with adults. The guardian ad litem
concludes:
It appears that a
situation existed in the past and presently a situation exists
wherein the children could benefit from services to them and to
the family. The record clearly reflects that sexual abuse
occurred. The problem is no one truly can ascertain who the
perpetrator was. However, because of the time span and the
child's feelings, reunification between the child and father may
no longer be in the child's best interest.
The guardian requests this Court to remand the matter for further
hearing and for an evaluation by the Department of Health and
Human Resources.
From the
record before us, it appears that the investigation of these
allegations of sexual abuse was inadequately performed. No
petition was ever filed by the Department of Health and Human
Resources in Lincoln County, and the Department's involvement was
apparently erratic.See
footnote 10 10 In syllabus point two of Boarman v.
Boarman, 190 W.Va. 533, 438 S.E.2d 876 (1993), we explained as
follows:
When
serious allegations of child abuse or neglect are made in a
custody case, the family law master and circuit judge should
direct the Department of Health and Human Resources to intervene
and conduct home studies and the court should make full inquiry
into these allegations. Furthermore, where serious allegations of
abuse and neglect arise, the protections afforded children under
abuse and neglect law should apply.
The passage of time, the misplacement of essential elements of evidence, and the seeming inability of child protective services to achieve a timely resolution have rendered our decision very difficult. The most compelling evidence of sexual abuse is contained in the report of Dr. Kathleen Previll, finding fissures in Brandon's anal region highly suggestive
of sexual abuse. The lower court's final order simply states
that "[w]hile an anal fissure could be indicative of sexual
abuse, anal fissures can result from many causes." Such
conclusion is not supported by the medical testimony of Dr.
Previll and is inconsistent with her findings.
The family
law master and the lower court found that the "preponderance
of the evidence" did not support a finding of abuse by any
alleged perpetrator. As we explained in Mary D., the proper
standard of proof required in determining whether a child has
been sexually abused, for purposes of limiting visitation, is not
clear and convincing. 190 W. Va. at 348, 438 S.E.2d at 528. Nor
is it the preponderance of evidence. Rather, "credible
evidence of such sexual abuse allegations is all that is
necessary for a family law master of circuit court to order
supervised visitation." Id. Despite the utilization of the
incorrect standard, the family law master and circuit court did
order supervised visitation and set forth precise intervals
during which supervised counseling sessions should occur, moving
toward reunification between Brandon and his father, and
gradually permitting unsupervised visitation.
The passage of time since the initial allegations of abuse, however, exacerbate the difficulty of this case. In the present case, as in Carter, the "passage of time and our lack of knowledge about recent events . . ." compels additional inquiry into the allegations and the need for supervised visitation with the alleged perpetrators of the abuse. Carter, 196
W. Va. at 246, 470 S.E.2d at 200. The Appellee urges this
Court to permit him to participate in the six-month counseling
plan delineated by the family law master and circuit court. As we
have consistently stated, as outlined extensively above, the best
interests of the child must guide the determination of visitation
modifications, with the child's emotional and physical well-being
playing a central role in that determination.
Based upon our review of the record and the arguments of counsel, we find that despite the lower court's use of the wrong standard, the graduated schedule of reconciliation counseling and supervised visitation, ultimately to culminate in unsupervised visitation, between the Appellee and Brandon, was warranted and appropriate under all the circumstances in the record, and the decision is affirmed. Due to the extended period of time since the last regular visitation between the Appellee and Brandon, however, the lower court should conduct an additional hearing on remand, prior to any unsupervised visitation, to determine whether the period of supervised visitation specified in the October 18, 1996, order should be extended. Furthermore, the circuit court should direct as immediately as possible that the reconciliation counseling begin. Since the parties have been unable to agree, the circuit court should specify the name of the counselor, either the one suggested by the guardian ad litem or one chosen by the court. The court should make such further order as appropriate with regard to the payment for any such reunification counseling. If, at any point during the visitations, additional evidence of sexual abuse or other issues relevant to
Brandon's best interests arise, the Appellant may move the
lower court to alter the visitation schedule accordingly.
Affirmed and remanded with directions.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992) ("Per Curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta .... Other courts, such as many of the United States Circuit Court of Appeals, have gone to non-published (not-to-be- cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.")
Footnote: 2 2 Timothy Shane, born on August 29, 1987, was two years old at the time of the
alleged abuse. Although Timothy regularly stayed with Brandon when Brandon visited the Appellee, Timothy is not the son of the Appellee. The parties agree that the lower court order and this appeal do not affect Timothy.
Footnote: 3 3 The case manager at Prestera Center indicated that Brandon had been at Prestera Center on April 18, 1988, for an intake interview for the treatment of night terrors. He did not return for a follow-up interview.
Footnote: 4 4 Criminal charges filed against the Appellee and his parents in 1991 were later dismissed upon the grand jury's failure to return an indictment in January 1992.
Footnote: 5 5 A law-enforcement investigation of this particular allegation indicated that the Appellee had taken the children to the home of the Appellee's sister in Ohio for the weekend. The children had been alone with Lloyd A. on September 22, 1991.
Footnote: 6 6 While the parties have informed the Court that the Appellee and Brandon have not had regular visitation since 1991, the reason for the lack of visitation is unclear. The family law master order in effect from 1991 to 1995 permitted visitation between the Appellee and Brandon. The Appellee's brief states that his last regular visitation was in September 1991, after which the Appellant once again accused the Appellee and his parents of sexual abuse.
Footnote: 7 7 According to the Appellant, Mr. Vickers is a master's level counselor. The duration of the counseling or the number of visits between Mr. Vickers and the Appellee is unclear from the record.
Footnote: 8 8 The family law master found the evidence inconclusive based upon the variance in the statements of the boys throughout the litigation. The family law master found that Brandon's "statement has changed drastically during the protracted course of this litigation." For instance, as recounted above, the first allegation of abuse centered upon "Papa Harlan," a friend of the Appellant, as the perpetrator of the abuse. The story then expanded to include
the Appellee's father, and by the time Brandon received counseling from Family Services in Charleston, the list of perpetrators included the Appellee and the Appellee's parents. The family law master notes that in the interview with Ms. Wade, referenced above, "several times during the interview the mother tries to focus the child's attention on Lloyd A., and the child does not name Mr. A. As the perpetrator of the abuse. It is only the mother at that point who names Lloyd A. As the abuser of the child."
Footnote: 9 9 The Appellant did not specifically assign error to the family law master and lower court's reference to "preponderance of the evidence," rather than credible evidence of sexual abuse. The Appellant did, however, discuss the distinction between the credible evidence standard of proof and the standard applied by the family law master and lower court, as more fully discussed subsequently in this opinion.
Footnote: 10 10 Although numerous references are made throughout the record to involvement by the Department, it does not appear that the Department filed an abuse and neglect petition or otherwise made concrete conclusions despite the fact that they viewed the allegation as sufficient to contact to the State Police regarding the allegations of abuse.
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