Putnam
County 16-A-28
MEMORANDUM DECISION
Petitioner
mother S.L., by counsel James T. Cooper, appeals the Circuit
Court of Putnam County's December 14, 2016, order
terminating her parental rights to the child, E.L., and
granting the child's adoption.[1] Respondent father and
stepmother, by counsel Allison K. Huson, filed a response in
support of the circuit court's order. On appeal,
petitioner argues that the circuit court erred in terminating
her parental rights and granting the adoption based upon
findings that she abandoned the child and that adoption was
in the child's best interests.
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,
this 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
August of 2016, respondent father and stepmother filed a
petition for adoption alleging that petitioner mother had
abandoned the child. The petition alleged that petitioner
mother failed to provide any financial support for the child,
despite a January of 2014 circuit court order requiring her
to pay a child support obligation. The petition also alleged
that petitioner mother failed to exercise visitation with the
child and had not seen the child since October 7, 2013.
In
October of 2016, the circuit court held a hearing on
respondent father and stepmother's petition for adoption.
Respondent father testified that he filed a domestic violence
petition against petitioner mother on or about May 27, 2013,
and was granted custody of the child until the final domestic
violence petition hearing. Following the final domestic
violence petition hearing, the circuit court found that
petitioner mother abused drugs and exercised less than half
of her visitation time, despite respondent father providing
transportation to and from visitation. The circuit court
suspended petitioner mother's visitation with the child
and conditioned her visitation on her filing a petition for
modification of child custody with the court and attaching a
"copy of, report, or certificate of her successful
completion of a substantial course of therapy and treatment
for drug addiction by the institution providing said course
of therapy and treatment." Respondent father further
testified that the circuit court designated him the
child's sole custodial parent and required petitioner
mother to pay child support beginning on January 1, 2014.
During
the hearing, petitioner mother admitted to abusing drugs and
testified that she completed a substance abuse program in
June of 2015. She also admitted that she took no steps to
file a petition for modification in 2013, 2014, or 2015,
despite her testimony that she understood the steps required
to file for modification of a child custody arraignment.
Petitioner mother also testified that she understood her
child support obligation but did not file to modify that
obligation or pay any child support. She further testified
that she was previously periodically employed but had been
continuously employed since March of 2016. Petitioner mother
also testified that she "periodically attempted to
contact" respondent father but that he refused to
provide her with his home address, work address, or his
telephone number.
Following
the presentation of evidence, the circuit court found that
respondent father communicated with petitioner mother and
that she knew where the child lived and knew where respondent
father worked. The circuit court also found that petitioner
mother understood that she was required to attend substance
abuse treatment and petition the court for a modification of
child custody if she completed substance abuse treatment, but
failed to do so. The circuit court further found that
petitioner mother had no legally recognized disability and
was able to support the child, but failed to send gifts,
letters, or other communication. The circuit court further
found that petitioner mother abandoned the child, failed to
demonstrate any compelling circumstances preventing her from
supporting, visiting or communicating with the child, and
that the child's adoption by respondent stepmother was in
the child's best interests. The circuit court terminated
petitioner mother's parental rights and granted the
child's adoption by order entered on December 14, 2016.
It is from this order that petitioner mother appeals.
On
appeal to this Court, petitioner mother challenges the
circuit court's findings of fact and conclusions of law
in its final order granting the subject stepmother adoption.
We previously have held that "[t]his 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). We also conduct a plenary review of the
circuit court's interpretation of the governing statutory
law and its application to the facts of this case.
See Syl. pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where
the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute,
we apply a de novo standard of review.").
Petitioner
mother's first argument on appeal is that the circuit
court erred in terminating her parental rights and granting
the adoption based upon a finding of abandonment under West
Virginia Code § 48-22-102 sufficient to support the
adoption. Pursuant to West Virginia Code § 48-22-102,
"abandonment" is "any conduct by the birth
mother . . . that demonstrates a settled purpose to forego
all duties and relinquish all parental claims to the
child." In re: Adoption of Schoffstall, 179
W.Va. 350, 352, 368 S.E.2d 720, 722 (1988) (noting that
"abandonment" is "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" (citations omitted)). West Virginia Code §
48-22-306(a) further outlines conduct that presumptively
constitutes abandonment:
[a]bandonment 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 uninterrupted for a period of six months
immediately preceding the filing of the adoption petition.
Further,
under West Virginia Code § 48-22-306(d), this statutory
presumption may be overcome by showing there existed
"compelling circumstances" to prevent the
child's parent from fulfilling his/her parental
responsibilities:
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: Provided,
That in no event may incarceration provide such a compelling
circumstance if ...