Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Adoption of E.L.

Supreme Court of West Virginia

January 8, 2018

In re: Adoption of E.L.

         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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.