T.F.,  pro se, appeals the March 8, 2017, order
of the Circuit Court of Cabell County granting the petition
of Respondents D.M. and F.M., the paternal grandmother and
step-grandfather, to adopt the infant child, T.B., based on a
finding of abandonment by petitioner, the biological mother.
Respondents, by counsel Jacquelyn Stout Biddle, filed a
response in support of the circuit court's order.
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,
the 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.
was born in 2013 to petitioner and Respondent D.M.'s son.
The couple never married. According to petitioner, T.B.'s
meconium tested positive for cocaine at birth. Subsequently, on
June 9, 2015, Respondent D.M. filed a petition in the Family
Court of Cabell County to be appointed T.B.'s guardian.
The family court granted the petition and appointed
Respondent D.M. as T.B.'s guardian by order entered on
October 22, 2015. In its order, the family court found that
T.B's father was incarcerated at the time and that
petitioner "has had no contact with [T.B.] or [her
guardian ad litem] since the beginning of [the guardianship]
proceedings" on June 9, 2015.
was previously granted supervised visitation with T.B. the
first Saturday of every month. According to petitioner, her
last visit with T.B. occurred at respondents' home in
April of 2015. The parties dispute whether petitioner
overdosed on drugs during the last visit. Petitioner stayed
up late packing the preceding night because she was going to
move to a new residence. When petitioner arrived at
respondents' home the following day, Respondent D.M.
suspected that petitioner was high on drugs. However,
Respondent D.M. allowed petitioner to come into the home
because Respondent D.M. "wanted to give her a
chance." According to petitioner, she just fell asleep
on the sofa, but Respondent D.M. believed that petitioner had
overdosed and called 911. When paramedics arrived, petitioner
refused medical treatment, but allowed her blood pressure to
be taken. Petitioner asserts that she did not overdose
because her blood pressure was normal.
September 11, 2015, to December 14, 2016, petitioner was
either incarcerated or on home confinement. Respondents filed
a petition to adopt T.B. in the Circuit Court of Cabell
County on December 20, 2016. Petitioner and respondents
appeared at the adoption hearing on February 24, 2017. At the
beginning of the hearing, the presiding judge advised the
parties that he knew T.B.'s father and knew that he had
recently died. Petitioner asked the judge to recuse himself,
alleging that he had a personal relationship with respondents
through T.B.'s father. The judge denied petitioner's
request, explaining that he knew T.B.'s father because he
criminally prosecuted T.B.'s father in his former
petitioner and Respondent D.M. testified at the adoption
hearing that the family court denied a request by petitioner
to have her visitation with T.B. reinstated. Petitioner
explained that the family court ruled that "they were
going to leave things the way they were because [Respondent
D.M.] assumed that I was high at her house at that last
visit." Because of the parties' dispute regarding
petitioner's last visit with T.B., petitioner testified
that respondents wished that she no longer come to their
home. Respondent D.M. testified that petitioner did not have
visits with T.B. after April of 2015 because "[w]e never
heard from her again."
testified that she sent T.B. letters during her
incarceration, but admitted that she had no documentation of
the same. Petitioner further testified that she sent
Respondent D.M. two Facebook or text messages with regard to
restarting her visitation with T.B. Petitioner stated that
proof of those messages was on her cell phone, but never
provided the phone or other substantive evidence to the
circuit court for review. Moreover, petitioner testified that
she would be on parole from the West Virginia Division of
Corrections until December of 2017. Petitioner confirmed that
she was pregnant again and unemployed. Petitioner
testified that child support for T.B. was last withheld from
her paycheck at "the end of 2014."
order entered on March 8, 2017, the circuit court found that
petitioner's consent to T.B.'s proposed adoption was
not required because T.B. was abandoned by petitioner
pursuant to West Virginia Code § 48-22-306. First, the
circuit court found that petitioner failed to financially
support T.B. Second, the circuit court found that petitioner
failed to visit or otherwise communicate with T.B. for a
period of at least six months prior to the filing of the
adoption petition and that respondents did not prevent
petitioner from doing so. Also, the circuit court found that
respondents were of good moral character and financially and
physically able to care for T.B. Accordingly, the circuit
court found that it was in T.B.'s best interests to be
adopted by respondents and granted respondents' petition
appeals from the circuit court's March 8, 2017, order
granting respondents' petition for adoption. In syllabus
point 1 of In Re: Adoption of C.R., 233 W.Va. 385,
758 S.E.2d 589 (2014), we held as follows:
"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).
appeal, petitioner argues that she was not treated fairly at
the February 24, 2017, adoption hearing. See State ex
rel. Peck v. Goshorn, 162 W.Va. 420, 422, 249 S.E.2d
765, 766 (1978) (finding that the concept of fundamental
fairness is synonymous with due process of law). First,
petitioner contends that the judge had a conflict of interest
because of a personal relationship with respondents through
T.B.'s father. We find that the hearing transcript belies
petitioner's contention given that the judge clearly
explained that he knew T.B.'s father not due to a
personal relationship, but because he criminally prosecuted
T.B.'s father in his former job. Therefore, we conclude
that the judge did not err in denying petitioner's
request for his recusal.
petitioner contends that the circuit court was unwilling to
consider her evidence that she did not abandon T.B.
Respondents counter that petitioner did not present any
evidence at the adoption hearing other than her self-serving
testimony. We agree with respondents. Though petitioner
testified that she sent T.B. letters during her
incarceration, she admitted that she had no documentation of
the same. Petitioner further testified that her cell phone
contained evidence that she sent Respondent D.M. two Facebook
or text messages with regard to restarting her visitation
with T.B. However, petitioner never provided the phone or
other substantive evidence to the circuit court for review.
The circuit court had no duty to consider evidence that
petitioner failed to proffer. Finally, the circuit
court's ruling that petitioner abandoned T.B. does not
indicate that the court ignored her testimony at the adoption
hearing. Rather, the circuit court was entitled to find that
petitioner's testimony was not credible. See State v.
Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n.
9 (1995) (finding that the evaluation of witnesses'
credibility is the exclusive function of the trier of fact).
Therefore, we reject petitioner's contention that the
circuit court was unwilling to consider her evidence and
conclude that the circuit court provided her an adequate
opportunity to be heard. See Goshorn, 162 W.Va. at
422, 249 S.E.2d at 766 (finding that "[t]he fundamental
requisite of due process of law is the opportunity to be
heard") (Internal quotations and citations omitted.).
respondents argue that sufficient evidence exists to support
the circuit court's finding that petitioner abandoned
T.B. We concur. West Virginia Code § 48-22-301(b)(2)
provides that a parent's relinquishment of her parental
rights and/or consent to her child's adoption is not
required if the court finds that she "has abandoned the
child as set forth in [West Virginia Code §§
48-]22-306." In syllabus point 2 of Joshua D.R. v.
David A.M., 231 W.Va. 545, 746 S.E.2d 536, 537 (2013),
we held that "[t]he standard of proof required to
support a court order . . ...