CHARLESTON – The state Supreme Court has ruled a family court judge erred in not terminating an Elkview couple's visitation rights with their grandson after they falsely accused his adoptive father of abusing him.

The Court on April 14 overruled a decision by Kanawha Family Law Judge Mike Kelly denying a petition filed by Warren Lee and Melissa Arnold to terminate visitation by Melissa's former in-laws, Robin and Janet Lyons, with her son, Jon. In an unanimous memorandum opinion, the Court said the Lyons' attempt to not only halt Warren's adoption of Jon, but also coaching Jon to say Warren abused him was more than sufficient grounds for Kelly to grant the Arnold's petition.

"While a best interests analysis will necessarily include an assessment of the bond and the relationship developed between the child and the grandparents," the Court said, "we disagree with the lower court's determination that the relationship between Jon and his grandparents is of a beneficial nature to Jon under the circumstances present here."

"The particular facts of this case, including the vicious nature of the grandparents' actions to forestall Jon's adoption proceedings, as well as their baseless pursuit of abuse allegations against Jon's adoptive father, illustrate a relationship in constant conflict with that of Jon's parents."

Rocky relationship

According to court records, Melissa was married to the Lyons' son, Jonathon, until 2000. Shortly after their divorce, Jonathon died in a car wreck.

Following her marriage to Warren in 2003, she moved with Jon to Spencer. Two years later, Warren, despite the Lyons' objections, successfully petitioned to adopt Jon.

Prior to Melissa's marriage to Warren, records show she agreed to allow Jon to visit the Lyons. The visitation included at least one overnight stay a month, four hours on Thanksgiving Day and nine hours on Christmas Eve and Dec. 26.

Warren's adoption of Jon became a source of friction between the Arnolds and the Lyons to the point where the Lyons accused him of severely bruising Jon with a belt buckle. Records show Warren was arrested on Dec. 20, 2007, and charged by State Police with felony child abuse.

Three days later, Robin Lyons filed a domestic violence protective order on Jon's behalf against Warren. Records show Kelly granted the order on Jan. 2, 2008, which barred Warren from having any contact with Jon for 90 days.

The same day Kanawha Family Law Judge Jane Charnock Smallridge granted a writ of habeas corpus Melissa filed for Jon's return from the Lyons' custody. Due to the protective order, Warren had to live elsewhere until April 2008.

A month later the child abuse charge was dropped at the request of Roane County Prosecutor Mark Sergent. In his motion for dismissal, Sergent said, "Further investigation and disclosures revealed the charge is likely baseless."

Following his return to Melissa's custody, records show Jon was interviewed by Dr. Timothy Saar, a Charleston psychologist. In the report he issued in July 2008, Saar found that not only did Jon's bruise come from vigorously playing air hockey at a friend's house, but the Lyons also "forced him to lie to the police and report that his father had hit him."

"Jon was coached by his grandparents into accusing his father of abusing him," Saar concluded in his report. "The manipulation of this cognitively impaired child by his grandparents should be considered emotional abuse and should call into question the [grandparents'] ability to care for this child."

Reversal

Armed with this information, the Arnolds on Dec. 5, 2008, petitioned Kelly to terminate the Lyons' visitation rights. In the course of two hearings, he took testimony from Ashley Hunt, one of Saar's interns, and Charleston attorney Jeff Woods, who was appointed as Jon's guardian ad litem, that based on their interviews with Jon it would not be a good idea for him to stop visiting the Lyons.

Despite also hearing from Saar during one of the hearings, who stood by his assessment that the Lyons' attempt to alienate Jon from Warren was psychologically damaging, Kelly concurred with Hunt's and Woods' recommendation "it would not be in Jon's best interest to terminate his time with his paternal grandparents" and denied the Arnold's petition on Nov. 13, 2009. Records show an appeal they filed of Kelly's decision to Kanawha Circuit Court was upheld by Judge Tod J. Kaufman on Dec. 16, 2009.

In reversing Kelly's decision, the Court said "while it is undisputed that Jon loves his grandparents and that he enjoys his time with them," their interference with the Arnold's parental decisions has created a toxic relationship between them. Because of that, the Court determined Jon's interests are best served by the Lyons forfeiting future visitation with him.

"The family court found," the Court said, "and the circuit court affirmed, 'as fact that it would not be in Jon's best interest to terminate his time with his paternal grandparents.' We find this assertion to be clearly wrong in light of the testimony of Dr. Saar, and in light of the visitation's interference with the parent-child relationship."

"It is clear that Dr. Saar testified that it was in the best interests of Jon to terminate his visitation with his grandparents and that nothing had happened to change his initial conclusions," the Court added. "We agree with Dr. Saar that such an environment is psychologically damaging to Jon and, therefore, it is in Jon's best interests to terminate grandparent visitation."

In the appeal, the Arnolds were represented by Charleston attorney Dennis R. Bailey, and the Lyons by Charles L. "Dusty" Phalen Jr., also of Charleston, and a former family lawmaster.

West Virginia Supreme Court of Appeals case number 35679

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