Joshua D.R. and Sherie L.R. v. David A.M.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
April 18, 2013
released at 3:00 p.m.
No. 11-1492 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JOSHUA D.R. AND SHERRIE L.R.,
Petitioners Below, Petitioners
v.
DAVID A.M.,
Respondent Below, Respondent
Appeal from the Circuit Court of Marion County
Honorable Larry V. Starcher, Special Judge
Civil Action No. 11-A-13
REVERSED AND REMANDED
Submitted: March 26, 2013
Filed: April 18, 2013
Amber Urtso Sellaro, Esq. J. Douglas Crane, Esq.
Sal Sellaro Culpepper Legal Group, PLLC J. Douglas Crane, L.C.
Morgantown, West Virginia Morgantown, West Virginia
Attorney for Petitioners Attorney for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “‘In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions of law are
subject to a de novo review.’ Syllabus point 2, Walker v. West Virginia Ethics Commission,
201 W.Va. 108, 492 S.E.2d 167 (1997).” Syl. Pt. 1, In re the Adoption of Jon L., 218 W.Va.
489, 625 S.E.2d 251 (2005).
2. “The standard of proof required to support a court order limiting or
terminating parental rights to custody of minor children is clear, cogent and convincing
proof.” Syl. Pt. 6, In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).
3. “‘In the law concerning custody of minor children, no rule is more firmly
established than that the right of a natural parent to the custody of his or her infant child is
paramount to that of any other person; it is a fundamental personal liberty protected and
guaranteed by the Due Process Clauses of the West Virginia and United States
Constitutions.’ Syllabus Point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).” Syl.
Pt. 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).
i
4. “Although parents have substantial rights that must be protected, the
primary goal . . . 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).
5. “‘A parent has the natural right to the custody of his or her infant child and
unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment
or other dereliction of duty, or has waived such right, or by agreement or otherwise has
permanently transferred, relinquished or surrendered such custody, the right of the parent to
the custody of his or her infant child will be recognized and enforced by the courts.’
Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969).” Syl. Pt.
1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009).
6. “‘For a natural parent to avoid the presumption that he or she has abandoned
a child who is over the age of 6 months, W.Va. Code § 48–4–3c(a)(1) [1997] requires the
parent to financially support the child, within the means of the parent. Furthermore, W.Va.
Code § 48–4–3c(a)(2) [1997] requires the parent to visit or otherwise communicate with the
child when the parent: (1) knows where the child resides; (2) is physically and financially
able to do so; and (3) is not prevented by the person or authorized agency having the care or
custody of the child. If there is evidence in a subsequent adoption proceeding that the natural
parent has both failed to financially support the child and failed to visit or otherwise
ii
communicate with the child in the 6 months preceding the filing of the adoption petition, a
circuit court shall presume the child has been abandoned.’ Syllabus Point 2, In re Jeffries,
204 W.Va. 360, 512 S.E.2d 873 (1998).” Syl. Pt. 3, In re Carey L.B., 227 W.Va. 267, 708
S.E.2d 461 (2009).
iii
Per Curiam:
This is an appeal from an order of the Circuit Court of Marion County entered
September 2, 2011, denying the petition for adoption filed by Joshua D.R. and his wife,
Sherrie L.R. wherein Joshua sought to adopt the minor child of Sherrie and her former
husband. On appeal, the petitioners argue that the circuit court committed error. Based upon
the record, the parties’ briefs and the arguments presented, this Court finds that the circuit
court erred and abused its discretion in finding that the biological father had not abandoned
the child and in denying the adoption.
I. Factual and Procedural Background
The petitioner, Sherrie L.R. (“the petitioner mother”), and the respondent,
David A.M., were married on August 29, 1998. They had one child together, a son, C.M.,
who was born on October 12, 2000. The parties separated on December 5, 2005, following
allegations of domestic violence by the petitioner mother. In January of 2006, upon the
referral of C.M.’s pediatrician, the petitioner mother began taking C.M. to see Jeff Collins,
a licensed psychologist, for weekly counseling sessions to address C.M.’s emotional and
behavioral problems, including his violent and aggressive behaviors toward the petitioner
mother.
1
The petitioner mother subsequently filed for divorce and, in an order entered
on February 27, 2007, the divorce was granted, in part, on the basis of “cruel or inhuman
treatment.” Through its order, the family court imposed a fifteen-year injunction against the
respondent from molesting or interfering with the petitioner mother, including refraining
from contacting her, either in person or by telephone, for “the purpose of harassment or
threats[.]”1 Also, in this divorce order, the petitioner mother was granted primary custody of
the child and the respondent was granted supervised visitation “[b]ased upon the testimony
of the parties and the child’s counselor, Mr. Jeff Collins[.]” Because C.M. had been
receiving counseling from Mr. Collins for approximately one year at the time of the final
divorce hearing, the family court ordered that the respondent’s supervised visitation take
place in Mr. Collins’s office, “as Mr. Collins shall deem advisable.”
On June 15, 2011, the petitioner mother and her husband, petitioner Joshua
D.R. (“the petitioner stepfather”),2 filed a verified petition for adoption in the Circuit Court
of Marion County in which the petitioner stepfather sought to adopt C.M. In their petition,
they allege that the respondent had neither financially supported nor engaged in any contact
with C.M. during the six months preceding the filing of the petition for adoption, although
1
The family court concluded that the lengthy injunction was justified “by the repeated
[domestic violence] charges and two (2) convictions of [the respondent] for violations of
domestic violence protective orders since the initiation of this [divorce] action.”
2
The petitioners were married on July 10, 2010.
2
he was physically and financially able and had not been prevented from doing so. On or
about August 4, 2011, the respondent filed a verified response and objection to the adoption
alleging that he was current with his child support payments and that his efforts to maintain
contact with his son had been “hindered by persistent interference from the child’s mother.”
On August 15, 2011, a hearing was held before the circuit court on the adoption
petition. Mr. Collins, the licensed psychologist who supervised the visitation between the
respondent and C.M., testified that in January 2009, he received a telephone message from
the respondent that he was “[n]ot going to be able to make it back anymore [for supervised
visitation with C.M.]” and that he was going to “petition the Court about that matter.”
Indeed, thereafter, no further visitation between the respondent and C.M. occurred at Mr.
Collins’s office. And, although the respondent advised Mr. Collins that he was going to
“petition the Court” about visitation, he never did.
The record contains two letters from Mr. Collins to the family court dated June
9, 2008, and April 23, 2009, respectively, each reporting on the status of both the counseling
of C.M. and the supervised visitation between C.M. and the respondent. In the June 9, 2008,
letter, Mr. Collins recommended that the respondent: (1) undergo a psychological evaluation
to assess the threat of violence and his overall level of functioning; (2) undergo a substance
abuse evaluation to address and/or rule out substance abuse issues; and (3) engage in
3
individual therapy to aid him in his role as a parent and with his ability to cope with ongoing
stressors. Also, in this June 9, 2008, letter, Mr. Collins reported, in part, as follows:
I am aware of the current allegations that have surfaced
which include [the respondent] abusing drugs, acquiring a
weapon and threatening to shoot [the petitioner mother] in the
face. I am aware that . . . because of the circumstances that
occurred when she received this information, [C.M.] is also
aware of this threat. At this time, [C.M.] is very frightened and
terrified that his mother will be harmed by his father. [C.M.]
has voiced these concerns in other sessions as well. . . .
One of the main concerns regarding [the respondent] is
the issue of stability.
• • •
In closing, . . . [t]here are many serious issues which need
to be addressed which include . . . the threat of physical violence
to [the petitioner mother], [C.M.]’s emotional trauma regarding
this alleged threat and the allegation of substance abuse. . . .
Mr. Collins’s April 23, 2009, letter, which appears to be his final report to the
family court, indicates that although the respondent had continued to request unsupervised
visitation with his son, Mr. Collins did not recommend such visitation because of his
“concerns regarding [the respondent father’s] stability” and because the respondent was
unable to complete a list of expectations that he had given to him.3 Mr. Collins further
3
The list of recommendations to which Mr. Collins refers is set forth in the June 9,
2008, letter to the family court.
4
reported that his biggest concern regarding visitation was the respondent’s instability, which
caused C.M.’s level of functioning to decrease.
Mr. Collins testified that between January 2007, when the supervised visitation
began, and January 2009, when the respondent reported that he would not be returning for
supervised visitation, the respondent appeared for only thirteen supervised visitations with
his son. The respondent’s last visitation with C.M. at Mr. Collins’s office was on September
22, 2008.4 Mr. Collins expressed his belief that C.M.’s uncertainty as to whether his father
was going to appear for visitation led to C.M. feeling “rejected or abandoned,” which led to
C.M. “feeling sad and ultimately feeling angry as well.” Mr. Collins further testified that he
saw C.M. approximately one week prior to the adoption hearing at which time C.M. told him
that he hoped that the adoption would occur and that he is fearful of his father and does not
feel comfortable being alone with him.
Also testifying at the adoption hearing was the respondent, who indicated that
he was current on his child support.5 He further testified that while he loves his son, he had
4
The petitioner mother testified that she thought the last supervised visit was in
December of 2008. See infra note 16.
5
Approximately one week prior to the adoption hearing, the respondent paid his child
support arrearage in the amount of $2,326.
5
become frustrated with trying to see him because the protective order6 prevents him from
telephoning the petitioner mother or going to her home,7 and that he was essentially tired or
frustrated with the supervised visitations in Mr. Collins’s office. Although the respondent
testified that the petitioner mother thwarted his attempts to contact C.M. by telephone, Mr.
Collins reported in both his letter to the family court dated April 23, 2009, and in his
testimony at the adoption hearing, that both he and the petitioner mother had difficulty in
getting C.M. to speak with the respondent by telephone.
At the adoption hearing, the respondent also testified that he loves C.M. and
that he never wanted to stop seeing him. However, he admitted that he had not seen him for
“three-and-a-half, four years.” The respondent further testified that since his divorce from
the petitioner mother in 2007, he often sent birthday, Christmas, and Valentine’s Day cards
and gifts to C.M.8 He also testified that he mailed a gift card to C.M. for Christmas in 2010,
but that it was returned to him in the mail. Aside from the respondent’s representation in this
6
The respondent father was referring to the fifteen-year injunction imposed against
him by the family court in the final divorce order. See supra note 1.
7
The injunction imposed against the respondent in the final divorce decree only
prohibits him from contacting the petitioner mother, either in person or by telephone, for the
purpose of harassing or threatening her. It does not appear to prohibit contact for other
purposes. See supra note 1.
8
The respondent testified that he might have missed two Valentine’s Days, maybe a
birthday, but he does not think that he missed any Christmases.
6
regard, he failed to present any evidence that he sent a gift card and that it was returned to
him.
During the petitioner mother’s testimony at the adoption hearing, she stated that
she never saw a gift card from the respondent for C.M. for Christmas 2010, but, if she had
received it, she would not have returned it to him.9 The petitioner mother acknowledged that
the respondent had occasionally sent cards and gifts to their son since their divorce and that
she had always given those gifts and cards to him, if they were appropriate.10 The petitioner
mother explained that on one occasion, the respondent sent a package to C.M. with “his
wallet and belongings in it with a suicide letter[.]” When asked to explain what C.M.’s
current thoughts or opinions were concerning his father, the petitioner mother testified that
C.M. is “scared of his dad from our past living together and things that have happened[.]”11
9
The petitioner mother also testified that she did not know the respondent’s address
to mail a gift card back to him and, in fact, she had to obtain his address through his
probation officer for the purpose of serving him with the petition for adoption.
10
The petitioner mother testified that even if she did not physically give an
inappropriate card to C.M. from the respondent, she would still tell him that his father had
sent him a card.
11
The petitioner mother also testified that she “still [has] a relationship with [her]
stepchildren, who are “all grown” and that on May 30, 2011, her stepson told her in front of
C.M. that the respondent had “grabbed him by the throat for the last time and threw beer
bottles at his head,” which caused C.M. to fear his father even more.
7
C.M.’s guardian ad litem (“guardian”) filed an answer in the circuit court in
which she reported that C.M. had infrequent contact with his biological father and had not
seen him in “quite a long time.” The guardian further reported that C.M. wants very much
to be adopted by his stepfather, whom she describes as a “very positive role model” for C.M.
The guardian expressed her opinion that the respondent’s parental rights should be
terminated and that C.M. should be adopted by the petitioner stepfather because,
[f]or all intents and purposes, [the respondent] has abandoned
[C.M.] and does not exercise his parental rights. I[t] is clearly
not in the infant’s best interest to allow [the respondent] to
remain as the infant’s legal parent. [C.M.] deserves to have an
interested and loving father, and that person would be [the
petitioner stepfather].
On September 2, 2011, the circuit court entered an order denying the adoption
petition on the grounds that the respondent was current on his child support payments12 and
had made “minimum contact” with the child, including gifts for his birthday, Christmas and
Valentine’s Day, such that the court could not find abandonment.
12
As indicated above, the respondent paid his child support arrearage approximately
one week prior to the adoption hearing. Prior to that payment, the record reflects that the last
child support payment made by the respondent was December 7, 2010, which appears to have
been an automatic withholding made by the Bureau for Child Support Enforcement.
8
II. Standard of Review
We are asked to review a circuit court’s order entered upon a petition for
adoption. Our standard of review in this regard is well established:
“In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate disposition
under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous
standard. Questions of law are subject to a de novo review.”
Syllabus point 2, Walker v. West Virginia Ethics Commission,
201 W.Va. 108, 492 S.E.2d 167 (1997).
Syl. Pt. 1, In re the Adoption of Jon L., 218 W.Va. 489, 625 S.E.2d 251 (2005).
III. Discussion
In this appeal, we are asked to determine whether the circuit court abused its
discretion by determining that the respondent had not abandoned C.M. and by denying the
petition for adoption filed by the petitioners. The petitioners assert that this matter is
governed by West Virginia Code § 48-22-306(a) (2009), which sets forth a presumption of
abandonment where there is no financial support of the child and no visitation or contact with
the child during the six months immediately preceding the filing of the petition for adoption.
The petitioners argue that the evidence demonstrated that, during the six-month period
immediately preceding the filing of their petition for adoption on June 15, 2011, the
respondent failed to financially support C.M. and failed to visit or communicate with him.
The petitioners argue that the circuit court failed to apply this statutory six-month period to
9
its analysis of whether the respondent had abandoned C.M. See W. Va. Code § 48-22­
306(a). The petitioners also argue that although the circuit court appointed a guardian ad
litem for C.M., it did not fully consider the guardian’s opinion that the adoption should be
granted nor did it refer to the guardian’s opinion in its order.
In his summary response to this Court, the respondent asserts that the circuit
court correctly denied the petition for adoption because the mere nonpayment of child
support is not enough to invoke the statutory presumption of abandonment. The respondent
argues that as of the hearing on the petition for adoption, he was no longer in arrears on his
child support, therefore, the petitioners could not show that he was not financially supporting
his child. The respondent adds that he mailed a gift card to C.M. for Christmas of 2010, but
that it was returned to him in the mail, presumably, he argues, by the petitioner mother. He
also asserts that the circuit court acknowledged that the guardian was present for the adoption
hearing and that it had received her answer that was filed with the court.
In determining whether the circuit court abused its discretion in denying the
petition for adoption, we must first consider whether the petitioners presented sufficient
evidence below to invoke the statutory presumption of abandonment set forth in West
Virginia Code § 48-22-306(a) and, if so, whether the respondent presented sufficient
evidence to rebut that presumption. In this regard, we note that “[t]he standard of proof
10
required to support a court order limiting or terminating parental rights to custody of minor
children is clear, cogent and convincing proof.” Syl. Pt. 6, In Re Willis, 157 W.Va. 225, 207
S.E.2d 129 (1973).
We begin our analysis with the premise that a biological parent has a right to
custody of his or her child. As we have previously explained,
“[i]n the law concerning custody of minor children, no rule is
more firmly established than that the right of a natural parent to
the custody of his or her infant child is paramount to that of any
other person; it is a fundamental personal liberty protected and
guaranteed by the Due Process Clauses of the West Virginia and
United States Constitutions.” Syllabus Point 1, In re Willis, 157
W.Va. 225, 207 S.E.2d 129 (1973).
Syl. Pt. 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003). However,
the right of a natural parent to the custody of his or her infant child must also be balanced
against the welfare of the child. “Although parents have substantial rights that must be
protected, the primary goal . . . 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).
Indeed,
“[a] parent has the natural right to the custody of his or her
infant child and unless the parent is an unfit person because of
misconduct, neglect, immorality, abandonment or other
dereliction of duty, or has waived such right, or by agreement or
otherwise has permanently transferred, relinquished or
surrendered such custody, the right of the parent to the custody
of his or her infant child will be recognized and enforced by the
11
courts.” Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va.
404, 168 S.E.2d 798 (1969).
Syl. Pt. 1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009) (emphasis added).
In the case sub judice, the petitioners maintain that the respondent has
abandoned C.M. The Legislature has defined “abandonment” as “any conduct by the birth
mother, legal father, determined father, outsider father, unknown father or putative father that
demonstrates a settled purpose to forego all duties and relinquish all claims to the child.”
W.Va. Code § 48-22-102 (2009). Similarly, in Carey L.B., we stated that “[t]his Court has
defined abandonment as ‘any conduct on the part of the parent which evinces a settled
purpose to forego all parental duties and relinquish all parental claims to the child.’ Matter
of Adoption of Schoffstall, 179 W.Va. 350, 352, 368 S.E.2d 720, 722 (1988) (citations
omitted).” Carey L.B., 227 W.Va. at 274, 708 S.E.2d at 468. Further, as referenced above,
there is a statutory presumption of abandonment of a child over the age of six months under
West Virginia Code § 48-22-306, which provides, in pertinent part, as follows:
(a) Abandonment of a child over the age of six months shall be
presumed when the birth parent:
(1) Fails to financially support the child within the means
of the birth parent; and
(2) Fails to visit or otherwise communicate with the child
when he or she knows where the child resides, is physically and
financially able to do so and is not prevented from doing so by
the person or authorized agency having the care or custody of
the child: Provided, That such failure to act continues
12
uninterrupted for a period of six months immediately preceding
the filing of the adoption petition.
• • •
(d) Notwithstanding any provision in this section to the contrary,
any birth parent shall have the opportunity to demonstrate to the
court the existence of compelling circumstances preventing said
parent from supporting, visiting or otherwise communicating
with the child[.]
These statutory provisions have been echoed and applied in prior decisions of this Court:
“For a natural parent to avoid the presumption that he or
she has abandoned a child who is over the age of 6 months,
W.Va. Code § 48–4–3c(a)(1) [1997] requires the parent to
financially support the child, within the means of the parent.
Furthermore, W.Va. Code § 48–4–3c(a)(2) [1997] requires the
parent to visit or otherwise communicate with the child when
the parent: (1) knows where the child resides; (2) is physically
and financially able to do so; and (3) is not prevented by the
person or authorized agency having the care or custody of the
child. If there is evidence in a subsequent adoption proceeding
that the natural parent has both failed to financially support the
child and failed to visit or otherwise communicate with the child
in the 6 months preceding the filing of the adoption petition, a
circuit court shall presume the child has been abandoned.”
Syllabus Point 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873(1998).13
Syl. Pt. 3, Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (footnote added). With these
principles in mind, we turn to the evidence in the case at bar.
13
In 2001, the Legislature recodified and renumbered the domestic relations statutes
such that West Virginia Code § 48-4-3c, as cited Carey L.B., is currently West Virginia Code
§ 48-22-306.
13
The record reflects that the petitioners demonstrated through clear, convincing,
and cogent evidence that the respondent had not provided child support for his son during
the six months preceding the filing of the petition for adoption. In fact, as previously noted,
it was not until one week prior to the adoption hearing that the respondent made a payment
in the amount of $2,326 to the Bureau for Child Support Enforcement, which covered his
child support arrearage. Given that the child support obligation was established at $101 per
month, we observe that the respondent’s arrearage appears to have been greatly in excess of
six months. Moreover, the payment of the arrearage nearly two months after the petition for
adoption was filed does not meet the relevant inquiry as established by the Legislature, which
is whether the respondent provided financial support during the six months immediately
preceding the filing of the petition for adoption.14 Because the respondent did not financially
support his son during the applicable six-month time period, the petitioners have satisfied the
first of the two statutory requirements for abandonment. W.Va. Code § 48-22-306(a)(1).
We now consider the second statutory factor for abandonment of a child by a
parent: the failure to “visit or otherwise communicate with the child.” W.Va. Code § 48-22­
306(a)(2). The respondent testified at the adoption hearing that he had not seen his son C.M.
in three and a half to four years. According to Mr. Collins’s testimony, supervised visitation
between the respondent and C.M. began in January 2007, and the last supervised visitation
14
See supra West Virginia Code § 48-22-306(a).
14
occurred on September 22, 2008.15 He further testified that during this time frame, the
respondent appeared for visitation with his son only thirteen times, which led to C.M. feeling
“rejected or abandoned.” Mr. Collins also testified that in January 2009, the respondent
advised him that he would not be returning for any further supervised visitation and that he
was going to petition the court about visitation. It is undisputed that the respondent never
sought to modify the terms of his visitation with his son.
It is clear from the record and the argument before this Court that the
respondent resides in the same general vicinity as his son and that he was neither physically
nor financially prevented from seeing him. The respondent’s testimony that the petitioner
mother somehow hindered his visitation efforts is inconsistent with the uncontroverted
evidence that he voluntarily chose to terminate supervised visitation. Thereafter, his only
contact with C.M. was an occasional card or gift.16 Regrettably, and as indicated previously,
15
The petitioner mother testified at this hearing that she thought the last supervised
visit was around Christmas of 2008. Whether September or December of 2008, the
respondent’s last physical interaction with C.M. occurred well outside the statutory six-month
period for purposes of determining abandonment by a parent. See W.Va. Code § 48-22­
306(a).
16
We are mindful of an earlier decision of this Court wherein the abandonment of a
child is described as where the parent “does not visit the children, and does not in any other
reasonable way, given his position in life and the opportunities for the exercise of his parental
rights, exercise the authority or undertake the responsibilities of a parent . . . .” In re Harris,
160 W.Va. 422, 428, 236 S.E.2d 426, 430 (1977). While In re Harris involved a divorced
mother’s request to change the surname of her child where the child’s father was still living,
our description of abandonment therein seemingly contemplates that parenting requires more
(continued...)
15
even those limited communications were, at times, inappropriate, such as the package
containing a suicide letter that the respondent sent to C.M. Nonetheless, the respondent cites
Carey L.B. for his argument that his occasional gifts and cards demonstrate that he did not
abandon his son. In Carey L.B., we stated that:
[o]n the issue of whether the biological father visited with the
children, and most importantly within the six-month period prior
to the filing of adoption petition . . . contact, including telephone
calls, letters or cards, was non-existent. The record amply
demonstrates that the biological father failed to expend even
minimal effort to note important occasions in his children’s
lives, such as the sending of a birthday card.
Carey L.B., 227 W.Va. at 267, 708 S.E.2d at 470. (Emphasis added). In the case at bar,
looking “most importantly” to the six months prior to the filing of the adoption petition, the
only contact the respondent arguably had with C.M. was the respondent’s testimony that he
allegedly mailed a gift card to C.M. for Christmas in 2010. Id. The respondent’s
representation that the petitioner mother mailed the gift card back to him is not corroborated
by any evidence of record. Moreover, the petitioner mother testified that she neither saw nor
returned a gift card.
Based on the foregoing, we conclude that clear, cogent, and convincing
evidence exists in the record that the respondent has failed to financially support, visit or
16
(...continued)
than an occasional card or gift.
16
otherwise communicate with C.M. for a continuous six-month period preceding the filing of
the adoption petition, although he knew where his son lived, was not physically or financially
prevented from seeing his son, and was not prevented from doing so by the petitioner mother.
See Syl. Pt. 3, Carey L.B., 227 W.Va. 267, 708 S.E.2d 461. Thus, under West Virginia Code
§ 48-22-306, abandonment is presumed and the burden shifted to the respondent to rebut that
presumption by demonstrating the existence of “compelling circumstances preventing said
parent from supporting, visiting or otherwise communicating with the child[.]” W.Va. Code
§ 48-22-306(d).
We further find that the respondent failed to rebut the presumption of
abandonment. His payment of his child support arrearage after the petition for adoption was
filed in no way proves that he provided financial support for C.M. during the six months
preceding the filing of the petition for adoption. To the contrary, it proves otherwise.
Further, his allegation that he mailed a gift card to C.M. for Christmas 2010 was wholly
insufficient to overcome the presumption of abandonment, particularly given his voluntary
termination of the supervised visitation with his son. Accordingly, we find that the circuit
court abused its discretion in its ultimate disposition finding that the respondent had not
abandoned C.M.
17
Because we find from the record that it is in the best interest of C.M. to be
adopted by Joshua, his stepfather,17 we remand this case to the circuit court for prompt
resolution through the entry of an order granting the petition for adoption pursuant to West
Virginia Code § 48-22-701(d).18
IV. Conclusion
For the reasons set forth herein, the circuit court’s September 2, 2011, order
is reversed and this action is remanded to the circuit court for further proceedings consistent
with this opinion.
Reversed and Remanded With Directions.
17
West Virginia Code § 48-22-701(a) (2009) provides, in part, that the court shall
decree the adoption if “(4) . . . it is in the best interests of the child to order such adoption.”
We conclude that the adoption is in the best interest of C.M. based on the evidence in the
record.
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In this regard, we note that West Virginia Code § 48-22-701(d) provides, in part, as
follows:
[T]he court or judge thereof shall make an order reciting the facts proved and
the name by which the child shall thereafter be known, and declaring and
adjudging that from the date of such order, the rights, duties, privileges and
relations, theretofore existing between the child and those persons previously
entitled to parental rights, shall be in all respects at an end . . . .
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