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concluding that birth mother’s filing a petition to modify a guardianship order, and failing to pursue it, was insufficient to thwart a finding of abandonment
Summary of this case from In re R.L.Opinion
No. 20-0224
11-19-2021
IN RE ADOPTION OF H.G.
Jeff C. Woods, Esq., Scott Depot, West Virginia, Counsel for Petitioner L.W. Tim C. Carrico, Esq., Charleston, West Virginia, Counsel for Respondent P.Y.
Jeff C. Woods, Esq., Scott Depot, West Virginia, Counsel for Petitioner L.W.
Tim C. Carrico, Esq., Charleston, West Virginia, Counsel for Respondent P.Y.
WALKER, Justice: Respondent P.Y. has been H.G.’s primary caretaker since he was an infant in 2012, and his legal guardian since 2016. In 2018, this Court affirmed a circuit court order vesting her with sole discretion regarding visitation with the child. When she filed a petition to adopt him in July 2019, the child's birth mother, Petitioner L.W., opposed the adoption even though she had not contacted or visited the child for years. The birth mother's only financial support of the child occurred during a brief period of involuntary wage garnishment in 2019.
West Virginia Code § 48-22-702 (2001) prohibits the disclosure of certain information in adoption proceedings. Given this statutory mandate, and consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (2015).
In re H.G. , No. 17-1131, 2018 WL 4944420, at *1 (W. Va. Oct. 12, 2018) (memorandum decision).
After an evidentiary hearing on the adoption petition in January 2020, the circuit court found that the birth mother had abandoned the child within the meaning of West Virginia Code § 48-22-306 (2001) and granted the petition. On appeal to this Court, the birth mother argues that the circuit court violated her constitutional due process rights and erred by finding that the two statutory factors showing presumptive abandonment under West Virginia Code § 48-22-306 were met. We disagree. Giving due deference to the circuit court's factual findings and credibility determinations, we find that it did not abuse its discretion in this case in concluding that (1) involuntary wage garnishment in 2019 did not constitute financial support; and (2) the birth mother failed to visit or communicate with the child for the six months preceding the petition, and long before that. So, we affirm the circuit court's order granting the adoption petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
The adoptive mother and the birth mother met when they attended the same church. Shortly after the child was born in May 2012, the adoptive mother and her partner took care packages to the birth mother. From the time the child was four days old, he lived with the adoptive mother for extended periods of time. The birth mother surrendered custody of the child to the adoptive mother in April 2015, before turning herself into authorities to be incarcerated. The adoptive mother has had sole custody of the child since then. The adoptive mother was granted permanent legal guardianship of the child in December 2016.
The child and seven of his siblings were the subject of a 2017 child abuse/neglect civil proceeding where the Department of Health and Human Resources (DHHR) alleged that the birth mother "engaged in domestic violence in front of the children, had an extensive criminal history and history of DHHR intervention." When the petition was filed, the birth mother had custody of only one of her children; her other seven children were living with various guardians or in the care of their respective biological fathers.
In re H.G. , at *1.
Id.
The circuit court ultimately terminated the parental rights of the child's birth father due to abandonment. The abuse/neglect petition was dismissed against the birth mother after she successfully completed her improvement period. But the circuit court ordered that it was in the best interest of the children to remain with their guardians. So, the child remained in the care of the adoptive mother and she was granted sole discretion regarding visitation. The birth mother appealed to this Court arguing that the circuit court erred by not granting her scheduled visitation with her children. We affirmed the circuit court's ruling stating that the birth mother "did not properly request visitation or assert any evidence to suggest scheduled visitation may be in the children's best interests."
Id. at *2.
Id. at *3.
Id.
In July 2019, the adoptive mother filed a petition to adopt the child. She stated that the child, who was age seven by then, had been in her sole custody for more than four years. Even though the child's birth mother had not contacted or visited the child for years, she did not consent to the adoption. West Virginia Code § 48-22-301 (2018) provides that consent to or relinquishment for adoption of a minor child is required by the child's parents, but the statute lists certain exceptions. Relevant to this appeal, the statute provides that consent to or relinquishment for adoption is not required where the court finds that the child is abandoned as set forth in West Virginia Code § 48-22-306.
For instance, because the child's birth father's parental rights were terminated, his consent was not required. W. Va. Code § 48-22-301(b)(1).
The circuit court conducted an evidentiary hearing on January 9, 2020, where it was undisputed that the birth mother had not contacted or visited the child within the operative six-month time frame before the petition was filed. The birth mother had made child support payments through involuntary wage garnishment in 2019 of about $500.00 in total.
The adoptive mother testified that the child was in the second grade, doing well in school, and involved in extracurricular activities. She stated that the birth mother had not seen the child for more than three years; the birth mother had two or three supervised visits with the child when the guardianship matter was in family court in 2016. The adoptive mother stated those visits "terrified" the child because the birth mother "kept telling [him] that she was going to sneak and take him home and she was going to get him.... He would scream and cry. He didn't want to go." So, the visits were discontinued.
The adoptive mother also testified that the birth mother had no visitation or contact with the child in 2017, even during the abuse/neglect proceeding. She stated that the birth mother had no contact with the child in 2018 and 2019, even though she knew where they lived. She stated that the birth mother
[n]ever dropped off a birthday card. I put on Facebook that—she follows my Facebook. She takes pictures off my Facebook of [the child]—that I'm having his birthday party at the rec center[,] ... he's having a ball game. This, this, and this. She never came. She never dropped him off a birthday card. But she traveled to South Carolina to see her two older kids last month. ... She's got two other kids in South Carolina. She hasn't tried to see them in five years.
On cross-examination, the adoptive mother confirmed that she received around four text messages from the birth mother asking to visit the child between February and July 2019. The adoptive mother explained that she did not respond to the birth mother's texts because "I followed her Facebook" and saw her husband P.W. "doing drugs and—being around those children and what she was going through having a different guy in her house ever [sic] time you turned around. She's been with four guys since November. I followed my heart and his best interest." The adoptive mother also admitted that she sent a private message on social media stating, "Please stop. I know that no one will see this, but you have not called or came by to see [the child] in three years and eight months." The adoptive mother stated that it was only after the birth mother "found out I was going to file for an adoption that she even text [sic] me." On redirect examination, the adoptive mother was asked if she ever told the birth mother that she could not send cards, or buy clothes or gifts for the child, and she replied, "No."
The record does not reflect when this message was sent.
The birth mother testified that she regularly submitted to drug screens during the 2017 abuse/neglect proceeding and "got rid of the riffraff that was causing" those issues; she had recently divorced P.W. but was pregnant with his child. The birth mother stated that two of her ten children lived with her. She admitted that the child at issue in this case had been in the care of the adoptive mother since April 2015. The birth mother claimed that she bought the child some gifts in 2015 and 2016, including clothes and shoes. She offered no excuse for her failure to support the child financially or visit or communicate with him in 2017 and 2018. The birth mother stated that she filed a petition to modify the guardianship order in January 2019—in family court and circuit court—because she wanted to have visitation with the child. But she claimed that the matter was never set for hearing.
On cross-examination, the birth mother was asked about the family functioning assessment that was prepared following her psychological evaluation in the 2017 abuse/neglect proceeding. This document detailed extensive abuse and neglect of the birth mother's children: the oldest child "gave a detailed image in her forensic interview of beatings, lack of food, supervision, and medical care, sexual abuse and forced servitude caring for the younger children. The babies weren't exempt from the beatings and she reported that even the infant, at six months of age was whipped with a belt." The family functioning assessment concluded that, "Given the long-term abuse and neglect [the birth mother] perpetrated and allowed to be perpetrated on her children, there is all but no likelihood that she will improve as a parent." The birth mother's counsel objected to this line of questioning but there was no objection to the admission of this document.
At oral argument before this Court, the adoptive mother's counsel stated that neither he, nor the adoptive mother, received a copy of the birth mother's petition to modify the guardianship order. They first learned about this petition at the January 2020 adoption hearing.
The birth mother stated that in 2019, she sent text messages to the adoptive mother asking if she could set up visitation. But the adoptive mother never responded to her texts. The birth mother stated that the adoptive mother and/or her partner sent messages on social media asking her to leave the child alone or "they would file harassment charges against me." On cross-examination, the birth mother confirmed that she had not paid any child support to the adoptive mother voluntarily; her wages were garnished for child support in 2019. She also admitted that she had not bought the child clothes or gifts in 2019.
It is unclear from the record when this message was allegedly sent.
In its February 14, 2020 order granting the petition for adoption, the circuit court found that the birth mother had "abandoned the child as that term is defined by West Virginia Code § 48-22-102 and by operation of West Virginia Code § 48-22-306." The circuit court adopted the facts and legal arguments in the adoptive mother's Memorandum of Law "filed with the [c]ourt contemporaneously with this [o]rder." It found the adoptive mother's testimony credible. In contrast, the circuit court rejected the birth mother's claim that she was prevented from contacting or visiting the child. It found the birth mother's testimony not credible. The circuit court concluded that the adoptive mother was of good moral character and able to properly maintain and educate the child. It also found that the adoption would promote the best interest of the child. The birth mother appealed this order.
The adoptive mother's Memorandum of Law was not included in the appendix record to this Court.
II. STANDARD OF REVIEW
We are asked to review a circuit court's order granting a petition for adoption following a finding of parental abandonment. We apply the following two-prong deferential standard of review:
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.
Syl. Pt. 1, In re the Adoption of Jon L. , 218 W. Va. 489, 625 S.E.2d 251 (2005) (quoting Syl. Pt. 2, Walker v. W. Va. Ethics Comm'n , 201 W. Va. 108, 492 S.E.2d 167 (1997) ).
On review, this Court "will not weigh evidence or determine credibility." Credibility determinations are in the sole discretion of the circuit court. We now turn to the parties’ arguments.
State v. Guthrie , 194 W. Va. 657, 669, 461 S.E.2d 163, 175 (1995).
III. ANALYSIS
The procedures for adoption of minor children in this State are set forth in West Virginia Code §§ 48-22-101 to - 704 (2015), which provide a detailed roadmap for reaching a goal of importance to the Legislature and this Court: "permanent placement in secure, loving homes for every child who cannot, for any number of reasons, find that security and love with his or her biological parents." Adoptions are to be decided on a case-by-case basis through the exercise of discretion by the circuit courts, giving due consideration to all relevant factors in determining what is in the adoptive child's best interest.
In re Adoption of J.S. , 245 W. Va. 164, ––––, 858 S.E.2d 214, 218-19 (2021).
See In re D.P. , 230 W. Va. 254, 257, 737 S.E.2d 282, 285 (2012) ("It is axiomatic that, in any contest involving the care and custody of a minor, ‘the welfare of the child is the polar star by which the discretion of the court will be guided.’ Syllabus Point 2, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).").
In this case, the birth mother argues that the circuit court erred in granting the petition for adoption over her objection. She raises two arguments, which are taken and restated from her brief: (1) the circuit court's order granting the adoption is legally incorrect "as it represents an improper de facto termination of [her] parental rights" in violation of her constitutional due process rights; and (2) the circuit court's order permitting the adoption under a theory of abandonment, as that term is defined by West Virginia Code § 48-22-306, is factually incorrect because the adoptive mother "engaged in a pattern of behavior which prevented" her from contacting or visiting the child.
The birth mother's brief does not comply with Rule 10(c) of the West Virginia Rules of Appellate Procedure. She identifies seven assignments of error but does not provide separate, distinct contentions corresponding to each of the assignments of error in the argument section of her brief. As this Court stated in Metro Tristate, Inc. v. Public Service Commission of West Virginia , 245 W. Va. 495, ––––, 859 S.E.2d 438, 444 (2021), this presents a challenge for both this Court and the other party to understand the connection between the errors initially alleged and the various contentions made later.
A. Termination of Parental Rights under West Virginia Code Chapter 48
The birth mother argues that the circuit court's order "permitting the adoption represents an absolute denial of due process" under the "Fourteenth Amendment of the Constitution of the United States of America and Article III of the Constitution of the State of West Virginia." She claims that the adoption is tantamount to "an improper de facto termination of [her] parental rights." The birth mother notes that her parental rights were not terminated in the 2017 child abuse/neglect proceeding, so she claims this case implicates "concerns regarding the potential restriction of visitation by parents" discussed in Troxel v. Granville . The adoptive mother responds that the issue of visitation between the birth mother and the child was resolved by this Court in 2018 when we affirmed the circuit court's order leaving visitation within her discretion. We agree that the issue of visitation between the birth mother and the child is not before us.
530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
We begin our analysis with the premise that a natural parent generally has a right to custody of his or her child. We have previously held that,
[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.
Syl. Pt. 2, Lindsie D.L. v. Richard W.S. , 214 W. Va. 750, 591 S.E.2d 308 (2003) (quoting Syl. Pt. 1, In re Willis , 157 W. Va. 225, 207 S.E.2d 129 (1973) ).
The Supreme Court of the United States has interpreted parental rights broadly to encompass all of the daily decisions involved in the upbringing of one's children. In Troxel , the Supreme Court found that the application of a Washington nonparental visitation statute to a parent and her family violated the parent's due process rights to make decisions concerning the care, custody, and control of her daughters. According to the Supreme Court, "so long as a parent adequately cares for ... her children (i.e. , is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of" the children.
See e.g., Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; Quilloin v. Walcott , 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978).
Id. at 68-69, 120 S.Ct. 2054.
The birth mother's reliance on Troxel is misplaced. This case is readily distinguishable because she is not a fit custodial parent. Rather, the circuit court found that she had abandoned the child. The birth mother surrendered custody of the child to the adoptive mother in April 2015 and had not assumed any parental responsibilities or made any parental decisions regarding this child for several years. The birth mother's involvement with the child has been almost nonexistent.
In Lehr v. Robertson , a case involving an unwed birth father's attempt to block his child's adoption by the mother's new husband, the Supreme Court observed that "the rights of the parents are a counterpart of the responsibilities they have assumed." And "[t]he significance of the biological connection is that it offers" a birth parent "an opportunity" that no one else possesses to "develop a relationship with his offspring." But a birth parent's failure to grasp that opportunity can have significant consequences. This Court has held that a natural parent may forfeit his or her rights through abandonment, among other things:
463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
Id. at 257, 103 S.Ct. 2985.
463 U.S. at 262, 103 S.Ct. 2985. In Lehr , the Supreme Court discussed the difference between a developed parent-child relationship—implicated in Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) —and the potential relationship involved in Quilloin v. Walcott , 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). Because the father in Lehr "never had any significant custodial, personal, or financial relationship" with the child, the Court was only concerned with whether the state adequately protected his opportunity to form the relationship. 463 U.S. at 262, 103 S.Ct. 2985.
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.
Syl. Pt. 1, In re Carey L.B. , 227 W. Va. 267, 708 S.E.2d 461 (2009) (quoting Syl. State ex rel. Kiger v. Hancock , 153 W. Va. 404, 168 S.E.2d 798 (1969) (emphasis added)).
West Virginia Code allows for parental rights to be terminated through State-initiated child abuse/neglect civil proceedings—governed by Chapter 49 —as well as through adoptions, including stepparent adoptions —governed by Chapter 48. All adoptions, whether the adopting parent is a foster parent, a guardian, a private party, or a relative, have the effect of completely and permanently terminating a birth parent's rights. And like State-initiated actions, a parent's failure to financially support and communicate or visit with her child for an extended period of time is grounds for terminating that parent's rights and denying her the right to prevent an adoption.
W. Va. Code § 49-4-601 (2019). In Chapter 49, "abandonment" is defined as "any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child[.]" W. Va. Code § 49-1-201 (2018) ; see also W. Va. Code § 49-1-201 (defining "neglected child" as a child "[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means on the part of the parent, guardian, or custodian[.]").
Because parental termination proceedings under Chapter 49 require the expenditure of limited State resources, the State is only compelled to file an abuse/neglect petition when a child's "physical or mental health" is presently "harmed or threatened." Id. The State has no immediate interest in terminating an absent parent's rights when the child is safe in the suitable care of the other parent or guardian.
See W. Va. Code § 48-22-116 (defining "stepparent adoption" as "an adoption in which the petitioner for adoption is married to one of the birth parents of the child or to an adoptive parent of the child.").
W. Va. Code §§ 48-22-101 to -704.
W. Va. Code § 48-22-703(a) (2001).
Even though the birth mother's parental rights were not terminated in the 2017 abuse/neglect proceeding, the 2019 adoption proceeding could proceed without her consent if there was sufficient evidence to demonstrate abandonment. The same circuit court that conducted the abuse/neglect proceeding presided over the adoption proceeding two years later. Importantly, that court heard evidence that the birth mother had not voluntarily paid child support or contacted or visited with the child during the time frame between those proceedings.
West Virginia Code § 48-22-301(b)(2) provides that a birth parent's relinquishment of his or her parental rights and/or consent to the child's adoption is not required once the circuit court finds that he or she "has abandoned the child as set forth in [West Virginia Code] § 48-22-306 [.]" And after the order of adoption was entered, the birth mother's parental rights were terminated under West Virginia Code § 48-22-703. "From the moment an adoption order is entered, an adoptive parent has the same rights as if the child had been born to him or her." For these reasons, we reject the birth mother's due process challenge. She does not dispute the fact that she was provided notice of the adoption proceeding as well as a full opportunity to be heard.
In re Adoption of J.S. , 245 W. Va. at ––––, 858 S.E.2d at 219 (quotation marks omitted).
See Syl. Pt. 2, in part, In re Willis , 157 W. Va. 225, 207 S.E.2d 129 (1973) ("[T]he Due Process Clauses of the West Virginia and United States Constitutions prohibit a court or other arm of the State from terminating the parental rights of a natural parent having legal custody of his child, without notice and the opportunity for a meaningful hearing.").
We now turn to the birth mother's claim that the circuit court erred by finding that the statutory factors showing presumptive abandonment under West Virginia Code § 48-22-306 were met.
B. Parental Abandonment of a Child under W. Va. Code § 48-22-306
Whether a birth parent has abandoned his or her child under West Virginia Code § 48-22-306 (2001) is a question of fact to be determined from the evidence. So, in determining whether the circuit court abused its discretion in granting the petition for adoption, we must first consider whether its factual finding of parental abandonment was clearly erroneous. We note that "[t]he 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."
See e.g. , In re Adoption of I.R.R. , 839 N.W.2d 846, 850 (N.D. 2013) ("Whether a child has been abandoned is a question of fact, and a district court's findings of fact will not be reversed on appeal unless they are clearly erroneous."); In re Adoption of Searle , 82 N.C.App. 273, 346 S.E.2d 511, 514 (1986) ("Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence.").
Syl. Pt. 2, Joshua D.R. v. David A.M. , 231 W. Va. 545, 746 S.E.2d 536 (2013) (quoting Syl. Pt. 6, In Re Willis , 157 W. Va. 225, 207 S.E.2d 129 (1973) ).
West Virginia Code § 48-22-102 (2001) defines "abandonment" as "any conduct by the birth mother ... that demonstrates a settled purpose to forego all duties and relinquish all parental claims to the child." A circuit court may find an intent to abandon based on a parent's conduct in failing to establish or maintain a relationship with his or her child. West Virginia Code § 48-22-306 outlines objective conduct that presumptively constitutes abandonment:
I.R.R. , 839 N.W.2d at 851.
(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 uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
So, the plain language of the statute requires the failure of the child's birth parent to (1) financially support the child within his or her means, and (2) visit or communicate with the child when the birth parent knows where the child resides, is physically and financially able to do so, and has not been prevented from doing so, for a period of six months prior to the filing of the adoption petition. "Unlike subsection (2) which requires the lack of communication to exist for the six months immediately preceding the adoption petition, the support requirement of subsection (1) contains no such temporal parameters."
In re Adoption of C.R. , 233 W. Va. 385, 390, 758 S.E.2d 589, 594 (2014).
We do not have any cases on this but looking at a similar statute, the Supreme Court of North Carolina has stated that trial courts may consider a parent's conduct occurring outside the six-month statutory time frame in evaluating his or her credibility and intentions. We find this directive useful in resolving this appeal, particularly the birth mother's claim that she intended to reestablish visitation with the child within the relevant six-month time frame but was prevented by the adoptive mother. We hereby hold that the determinative period for finding presumptive parental abandonment under West Virginia Code § 48-22-306(a)(2) (2001) is the six-month period immediately preceding the filing of the adoption petition. But a circuit court may also consider relevant conduct of a parent outside this six-month period when evaluating his or her credibility and intentions.
In the case of In re Matter of G.G.M. , 377 N.C. 29, 855 S.E.2d 478 (2021), the Supreme Court of North Carolina affirmed a trial court's order granting a maternal grandmother and step-grandfather's petition to terminate their grandchildren's birth father's parental rights due to abandonment. The court noted that a trial court may terminate a parent's parental rights when "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion. N.C.G.S. § 7B-1111(a)(7) [(2019)]". 855 S.E.2d at 481. It upheld the trial court's finding of abandonment when the birth father had no contact with the children for a period of over five years. Id. at 482. The court stated that the trial court was entitled to consider the father's years-long absence from the children's lives when determining his credibility and intentions during the six months preceding the filing of the petition. Id. at 483-84 ; see also Matter of N.D.A. , 373 N.C. 71, 833 S.E.2d 768, 773 (2019) (looking to a parent's conduct outside the six-month window when determining willful abandonment in a parental termination case).
The dissent worries that the Court's opinion expands the statutory six-month time frame for determining whether presumptive abandonment is met. But we impose no such rule. Rather, today's decision adopts the clear statutory directive of West Virginia Code § 48-22-306(a)(2). Because we are dealing with fundamental personal liberty interests protected by the West Virginia and United States Constitutions, we apply our longstanding approach and afford circuit courts broad discretion when resolving issues of witness credibility and intentions on the ultimate issue of whether parental abandonment has occurred. "In cases involving minor children a heavier burden is cast upon the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interests." Bridges v. Bush , 93 Ark. App. 461, 220 S.W.3d 259, 261 (2005).
On West Virginia Code § 48-22-306(a) ’s first requirement, the adoptive mother testified that the birth mother failed to provide financial support for the child for years. But she received a small amount of child support through the birth mother's wage garnishment in the first part of 2019, totaling about $500.00. The birth mother conceded that in 2019 she never made a voluntary payment of child support or bought the child gifts or clothes. In In re Adoption of C.R. , this Court found that the birth father had an obligation to financially support his child regardless of a court order and that recent involuntary payment of child support through wage withholding alone was insufficient to defeat a finding that he failed to financially support his child. We noted "that other jurisdictions also have concluded that the involuntary payment of child support through wage withholding is sufficient to demonstrate a lack of financial support so as to establish abandonment."
Id. at 389-90, 758 S.E.2d at 593-94.
Id. at 391, 758 S.E.2d at 595 ; see In re K.D. , 285 Ga.App. 673, 647 S.E.2d 360, 366 (2007) (approving termination of parental rights based, in part, upon finding that father failed to fulfill his obligation to support his child where father failed to provide any support during child's first year of life; he involuntarily paid the balance of his child support arrearage when his income tax refund was intercepted and used to pay the balance due; and "the only child support [father] has paid has been that which was garnished from his wages"); see also In Int. of A.F.W. , 543 S.W.3d 66, 69 (Mo. Ct. App. 2018) (finding birth father failed to support his child financially when the only evidence of support was child support payments garnished from his monthly social security disability checks; this was not a voluntary act by the father).
Other courts have found that child support payments made through involuntary wage garnishment were sufficient to overcome this failure-to-support prong. See e.g. , In re Adoption of Hayley , 190 Misc.2d 764, 740 N.Y.S.2d 557, 563 (Fam. Ct. Oswego Co., N.Y. 2000) (not adopting proposition that support payments, made in accordance with a wage deduction order, were automatically deemed "involuntary."). But this Court has harshly criticized parents who only financially support their children when forced to do so. See M.B. v. J.C.H. , No. 17-0028, 2017 WL 5629691, at *2 (W. Va. Nov. 22, 2017) (memorandum decision) ("despite petitioner's dissatisfaction with this ruling and his attempts to distinguish his own case from In re Adoption of C.R. , the fact remains that payment of child support through wage withholding is insufficient to establish that petitioner financially supported the child.").
Even parents with modest incomes can meet this baseline obligation, as West Virginia Code § 48-22-306(a)(1) faults a parent for failing "to financially support the child within [his or her] means[.]" So, the amount of the child support is not the issue here. Rather, it is the fact that the birth mother only paid child support when forced to do so through wage garnishment in 2019 and purchased no gifts or anything else for him for years. This Court has held that "[t]he duty of a parent to support a child is a basic duty owed by the parent to the child[.]" In this case, the birth mother offered no evidence of "compelling circumstances" that would have relieved her of this duty to support her child. So, the circuit court properly found that the birth mother failed to financially support the child, establishing the first requirement of the statutory presumption of abandonment.
Syl. pt. 3, in part, Wyatt v. Wyatt , 185 W. Va. 472, 408 S.E.2d 51 (1991).
On West Virginia Code § 48-22-306(a) ’s second requirement, the evidence shows that the birth mother failed to visit or otherwise communicate with the child within the six months prior to the filing of the adoption petition. On this issue, the parties agree that the last physical interaction between the birth mother and the child occurred in 2016. Other contact since that time, including telephone calls, letters or cards, was likewise nonexistent. The adoptive mother testified that the birth mother never attended the child's school events or birth parties, even when invitations were posted on social media. The record amply demonstrates that the birth mother failed to expend even minimal effort to note important occasions in her child's life, such as the sending of a birthday card in 2017, 2018, and 2019.
We agree with the circuit court that the adoptive mother clearly and convincingly invoked the presumption of abandonment defined in West Virginia Code § 48-22-306, and the burden of persuasion to rebut the presumed abandonment shifted to the birth mother. West Virginia Code § 48-22-306(d) states, in relevant part, that "[n]otwithstanding 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[.]"
The birth mother contends that the adoptive mother prevented her from seeing the child in 2019. She points to four or five text messages she sent to the adoptive mother between February and July 2019 asking to visit the child, where the adoptive mother did not respond. The birth mother also claims that the adoptive mother and/or her partner sent messages through social media asking her to stop contacting them. In contrast, the adoptive mother contends that the birth mother sent those text messages—after years of silence—only because she had heard that the adoption petition was imminent. So, the pivotal question before the circuit court was whether the adoptive mother demonstrated the existence of compelling circumstances preventing her from visiting or contacting the child in the six months preceding the adoption petition. The circuit court was not impressed by the birth mother's claim and rejected it, finding her testimony not credible. We are unwilling to disturb this credibility finding when the birth mother's claim was wholly refuted by her complete lack of contact with the child in 2017 and 2018.
In similar fashion, this Court found that the second statutory requirement was met in C.R. , when the father, who was discouraged but not forbidden from seeing the child, failed to visit or otherwise communicate with him in the six months prior to the filing of the adoption petition. In C.R. , we found that prior orders requiring court permission before the father had visitation with his child could constitute "compelling circumstances" under West Virginia Code § 48-22-306(d) sufficient to rebut the statutory presumption, but that the father failed to present any evidence that he was prevented from seeking the permission that was required to visit his child. In the case of In re Adoption of T.B ., this Court also found that the respondents’ preference did not excuse the birth mother's lack of visitation or communication with the child. In that case, the birth mother testified that the respondents wished that she no longer come to their home given the parties’ dispute as to whether she overdosed on drugs during a visit with the child. This Court stated that even assuming that a prior court order prohibited the birth mother from going to respondents’ home or contacting them by phone, there was no evidence that the birth mother was prevented from seeking a modification of that order.
No. 17-0363, 2018 WL 678614, at *5 (W. Va. Feb. 2, 2018) (memorandum decision).
Id. at *5.
Id.
In this case, the birth mother filed a petition to modify the guardianship arrangement in an attempt to obtain visitation with the child in January 2019. She filed this petition within the six-month time frame immediately preceding the July 2019 adoption petition. But the birth mother took no action on that petition; importantly, she neither served the adoptive mother nor requested a hearing. Under similar facts, the Supreme Court of Tennessee concluded in In re Adoption of Angela E. , that despite the fact that the biological father had filed a visitation petition, he willfully failed to visit the child. The father had not exercised visitation for almost three years, and after filing his petition to reinstate his visitation, he took no further action to pursue it and offered no reasonable excuse for failing to do so. The court concluded that it simply was not a case where a parent was actively trying to maintain visitation like In re Adoption of A.M.H. In A.M.H. , the parents were actively pursuing visitation with the courts during the pertinent four-month period and importantly, they had continually visited and maintained a relationship with their child. The case before us is similar to In re Adoption of Angela E . The birth mother did not actively pursue her request to modify the guardianship order regarding visitation nor maintain any sort of relationship with the child.
402 S.W.3d 636 (Tenn. 2013).
Id. at 642.
215 S.W.3d 793 (Tenn. 2007).
Id. at 798.
Setting aside the lack of visitation, it is also significant that the birth mother failed to communicate with the child within the six-month time frame immediately preceding the adoption petition. In Rodgers v. Rodgers , the court stated that it was "unwilling to hold that when a parent cannot have visitation with her children, due to a court order, that gives the parent justifiable cause to make no effort in continuing a relationship with the children." As the Rodgers court explained, the birth mother
2017 Ark. 182, 519 S.W.3d 324 (2017).
Id. at 328. Even when a parent is incarcerated, courts have determined that his or her failure to communicate with a child constitutes abandonment. See e.g. , In re Adoption of C.A.L. , 35 N.E.3d 44, 53 (Ohio 2015) (stating father's incarceration did not prevent him from communicating with his child).
could have made telephone calls to the children, sent birthday or Christmas cards, letters, or emails, but she attempted to do none of these. She also did not attend any school, church, or sporting events involving her children. She failed to show an interest in their lives despite living approximately 150 feet from the children.
Id.
We find this reasoning persuasive to the matter before us. The birth mother made no attempt to send letters to the child or attend his birthday parties or school functions within the relevant six-month period. For these reasons, the evidence supports the circuit court's finding of parental abandonment and we cannot conclude that it is clearly erroneous. We have also not been presented with any evidence sufficient to convince us it has abused its discretion in granting the petition for adoption. So, we affirm its order.
IV. CONCLUSION
For the reasons set out above, we affirm the February 14, 2020 order of the Circuit Court of Kanawha County granting the petition for adoption.
Affirmed.
WOOTON, Justice, dissenting, and joined by Justice Armstead :
This case began because petitioner mother, L.W. ("petitioner"), wanted to have visitation with her child, H.G., and ended with the circuit court granting respondent permanent guardian, P.Y.’s ("respondent"), petition to adopt the child based upon petitioner's alleged "abandonment" of the child. See W. Va. Code § 48-22-306 (2015) (setting forth facts that can be used to presume abandonment). The majority affirms the decision of the circuit court, a de facto termination of petitioner's parental rights to her child, on the basis of an abandonment presumption, see id. , such presumption arising, in part, from petitioner's failure to communicate with her child because, pursuant to a court order, visitation was within the sole discretion of respondent – who refused to allow it.
This statute is discussed in greater detail infra.
I do not take issue with the majority's resolution of petitioner's assigned error that "permitting the adoption represents an absolute denial of due process" under the "Fourteenth Amendment of the Constitution of the United States of America and Article III of the Constitution of the State of West Virginia."
In reaching this result, the majority holds in a new syllabus point that "[t]he determinative period for finding presumptive parental abandonment under West Virginia Code § 48-22-306(a)(2) (2001) is the six-month period immediately preceding the filing of the adoption petition. But a circuit court may also consider relevant conduct of a parent outside this six-month period when evaluating his or her credibility and intentions. " (Emphasis added). First, the statute as enacted contains no license for a court to consider and rely upon facts outside the relevant six-month time period. By permitting consideration of actions outside of this time period, the majority disregarded the express language of the statute in this new syllabus point, despite the absence of a specific challenge to the statutory language raised by the parties. In addition, a straightforward application of the statute to the facts of this case fails to support the statutory presumption that the child was abandoned. See id. Accordingly, I respectfully dissent.
H.G. has spent his entire life – some nine years – in a temporary and permanent guardianship with respondent. Petitioner first placed him with respondent, who she knew from church, in temporary guardianship. The temporary guardianship became permanent after the circuit court refused to terminate petitioner's parental rights in a 2017 abuse and neglect proceeding, but ordered the child to be placed in a "permanent legal and physical guardianship" with respondent in which visitation with the child was "controlled by" respondent. Significantly, the only issue petitioner appealed was the circuit court's decision to grant visitation at respondent's discretion. She sought scheduled visitation with her child. In re H.G. , No. 17-1131, 2018 WL 4944420 (W. Va. Oct. 12, 2018) (memorandum decision). Petitioner argued to this Court that "the circuit court's order that gives the child[’s] custodian[ ] discretion to exercise visitation is the equivalent to denial of any visitation." Id. at *2. However, in our 2018 memorandum decision we affirmed the circuit court's decision. Id. Respondent through her counsel received notice of all proceedings in the 2018 appeal, and could have herself appealed the lower court's decision made in the abuse and neglect context, and argued that because she wanted to adopt the child the circuit court needed to terminate petitioner's parental rights. At no time either before or after the 2018 abuse and neglect proceeding did respondent actually seek to adopt this child – until petitioner began asking to visit with her child.
Petitioner testified that she is now the biological mother of ten children. Despite being a named respondent in at least one prior petition for abuse and neglect, the circuit court has not terminated her parental rights to any of her children. Further, at the time of the abuse and neglect proceeding she retained custody of her then-youngest child, P.W., III.
In January of 2019, about two years after the abuse and neglect proceeding concluded, but only a few months after this Court denied petitioner's appeal on the visitation issue, she pursued visitation in the only way she could pursuant to the lower court's order: by seeking visitation through respondent. In this regard, it cannot be emphasized too strongly that visitation with her child is the only thing that petitioner had pursued and continued to pursue. Two things of significance occurred during the relevant time period. First, petitioner obtained employment, working two jobs – one as a full-time security guard and the other as a part-time caregiver for a single client. As a result of her employment, during the time frame from January 2, 2019, to June 11, 2019, petitioner paid approximately $500 in child support through the West Virginia Bureau of Child Support Enforcement.
The evidence in the appendix record shows that petitioner had withholdings for child support from April 29, 2016, through the end of October, 2016. Further, according to the appendix record, petitioner also had withholdings from her pay beginning in January of 2019 and continuing to January of 2020.
Second, petitioner began sending text messages to respondent seeking visitation with her child. Respondent testified that in February of 2019, petitioner "sent me a text message and wanted to know if she could get with me and have visitation so ... [H.G.] could meet his new brother, which was two years old, and I didn't respond." Respondent stated that there were "four or five more every other month" and that she never responded to petitioner; instead, she "followed [her] heart." Respondent also testified that she was not going to let petitioner see the child and that she specifically told petitioner: "Let me tell you one thing, I don't know what you're talking about. It's over. I have papers from the supreme court. You lost them all [referring to petitioner's other children]. Why don't you just leave everybody alone?" Finally, respondent told petitioner: "You may not understand the court system, but, sweetie, they cannot redirect it. H. will be our son and that was ordered by the supreme court of Charleston, West Virginia."
Petitioner testified that respondent told her to stop communicating with respondent and to leave the child alone. According to petitioner, respondent told her "[i]f I didn't, they would file harassment charges against me." Petitioner testified:
There was no evidence that petitioner ever tried to contact the child directly. However, in addition to respondent, petitioner also communicated with the respondent's partner.
Of course I would like to just stop by and see the child or I would love to just send the child something whether he knew it was from me or not. Bottom line was I'm not just going to show up and disrupt the child where there's just going [to] end up being a big argument or fight because of me getting, you know, threatened with harassment or something like that. That's nothing the child needs to see go on. So I tried to go about it the correct legal way like I was told to do through court and message ... [respondent] for visitation to be setup.
Petitioner further testified that she tried to contact respondent about visitation and to see if her child needed anything, asking respondent to let her know and she would "do what I can do." However, again, respondent never responded. Further, when asked why she did not do more to try and communicate with her child, she responded: "There is no contact with ... [respondent.] How would I even know if anything was received or what he needed or what to do?"
On January 18, 2019, petitioner, who was a self-represented litigant, filed a "Petition for Modification" seeking visitation with the child. This petition was never served on respondent guardian, but petitioner testified that after she filed it, she "waited a few months" and went back to ask about the status. She was then told that "it was sent to the judge and that nothing was done yet.... So, again, I waited. And I went back and I was told that it was sent up to the judge ... and they were still waiting on a hearing." Consequently, petitioner took no other action regarding said petition other than filing the same with the circuit court.
Thereafter, on July 12, 2019, respondent filed a petition to adopt the child, arguing that petitioner had abandoned him. In order to adopt the child respondent was required to prove that petitioner's conduct presumptively constituted abandonment within the purview of West Virginia Code § 48-22-306 involving adoptions. That statute provides:
Compare W. Va. § 49-1-201 (2015 & Supp. 2021) (defining "imminent danger to the physical well-being of the child" to include condition of "abandonment by parent, guardian, or custodian" within the confines of abuse and neglect).
(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 uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
Id. (emphasis added). We further held in syllabus point two of In re Jeffries , 204 W. Va. 360, 512 S.E.2d 873 (1998), that
[f]or 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] [now W. Va. Code § 48-22-306 (2015) ] requires the parent to financially support the child, within the means of the parent. Furthermore, W. Va. Code , 48-4-3c(a)(2) [1997] [now W. Va. Code § 48-22-306 (2015) ] 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.
In light of our long-standing law regarding the application of the adoption presumption, I respectfully disagree with the majority's creation of a new syllabus point interpreting and adding language to West Virginia Code § 48-22-306 when there was no challenge raised in regard to the construction of statutory language.
Further, the majority's action in altering and expanding the language to the statute is contrary to our well-established law. We have repeatedly held that
[i]t is well established that " ‘[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.’ Hereford v. Meek , 132 W.Va. 373, 386, 52 S.E.2d 740, 747 (1949)." Mace v. Mylan Pharmaceuticals, Inc. , 227 W.Va. 666, 673, 714 S.E.2d 223, 229 (2011) ; see also Syl. Pt. 1, in part, Ohio Cnty. Comm'n v. Manchin , 171 W.Va. 552, 301 S.E.2d 183 (1983) ("Judicial interpretation of a statute is warranted only if the statute is ambiguous [.]").
State ex rel. Smith v. W. Va. Crime Victims Comp. Fund , 232 W. Va. 728, 732, 753 S.E.2d 886, 890 (2013). Having specifically found that the statutory language is "plain," the majority had no legal basis to construe the language to expand the six-month time frame provided by the Legislature for the purpose of determining whether the statutory presumption applies to the facts of this case. See Syl. Pt. 2, Huffman v. Goals Coal Co. , 223 W. Va. 724, 679 S.E.2d 323 (2009) ("It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. ").
A critical examination of the facts undeniably demonstrates that the clear statutory presumption regarding abandonment of a child by a natural parent was not proven. In this regard, the evidence presented to the circuit court in a hearing on respondent's petition established that petitioner contributed approximately $500 in child support payments for the child, which payments were taken from petitioner's wages during the specific time from January 2, 2019, to June 11, 2019, when petitioner was employed. Critically, according to the statute, the "failure to financially support the child" is not examined in isolation. The statute expressly provides that there must be a failure to financially support the child "within the means of the birth parent." Id. Further, the statute in no way suggests that an "involuntary support payment" fails to meet this element.
The majority, relying upon dicta from In re Adoption of C.R. , 233 W. Va. 385, 758 S.E.2d 589 (2014) (per curiam), concludes that the failure to financially support element of the statutory presumption is easily met. In Adoption of C.R. , the Court found that involuntary payment of child support through wage withholding was insufficient to overcome the financial support factor. Id. at 389-90, 758 S.E.2d at 593-94. However, the Court's application of the statutory factors in Adoption of C.R. was expressly limited to "the case presently" before it. Id. at 389, 758 S.E.2d at 593. Further, in Adoption of C.R. , as well as other memorandum decisions which rely upon that case for the proposition that a parent's involuntary wage withholding is insufficient evidence of financial support, the Court completely failed to discuss, acknowledge or reconcile how involuntary payment of child support through wage withholding fails to constitute financial support of a child "within the means of the birth parent." Rather, the Court simply focused on the proposition that a parent has a duty to support his or her child. See id. at 389-90, 758 S.E.2d at 589-90 (citing various cases supportive of the principle that a parent has an "irrefutable duty to support his child"). Again, these cases are devoid of any discussion or analysis regarding why involuntary support payments of child support fail to meet this factor. The notion that a parent is "failing" to financially support his or her child simply because the support payments are being "involuntarily" withheld from his or her wages is not supported by the statutory language addressing such support. See W. Va. Code § 48-22-306(a)(1). Moreover, there is no evidence that petitioner in this case took any steps to attempt to have the child support deductions stopped or reduced. In examining whether respondent carried her burden of demonstrating that petitioner failed to financially support the child within her means, respondent failed to produce any evidence that petitioner had "the means" to provide any more financial support for her child than she did. To the contrary, the evidence showed that petitioner had been making regular financial support payments, albeit involuntarily, beginning in January of 2019 when she became employed. W. Va. Code § 48-22-306(a)(1) ; see In re Adoption of L.A. , No. 16-0149, 2017 WL 785879, at *5 (W. Va. March 1, 2017) (memorandum decision) ("Pursuant to W. Va. Code § 48-22-306(a)(1), the first factor necessary for a finding of presumptive abandonment is the parent's failure to provide financial support for his/her child "within the means of the birth parent." (Emphasis added). The evidence in this case is uncontradicted that, at the relevant time, Father was not employed and had no income from which to fulfill his support obligation. In other words, Father had no "means " by which to pay child support. Id. "); see also In re Petition of Carey L.B. , 227 W. Va. 267, 274-75, 708 S.E.2d 461, 468-69 (2009) (stating that "[m]ere non-payment of child support is not enough to invoke the presumption contained in W. Va. Code § 48-22-306 [,]" and that "the adoptive father must also show that the biological father failed to support the children within the biological father's means and abilities.").
Respondent had the burden to prove the two statutory elements needed to establish abandonment – not petitioner. See Adoption of Schoffstall , 179 W. Va. 350, 352, 368 S.E.2d 720, 722 (1988) ("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) ; State v. Carl B. , 171 W.Va. 774, 301 S.E.2d 864 (1983). In the case before us we do not believe that Neil and Michelle Shedd established by clear and convincing evidence that Charles Schoffstall abandoned his parental rights to Michael.").
In addition to the financial support factor, in order for abandonment to be presumed under West Virginia Code § 48-22-306, respondent had to show that petitioner failed to visit or communicate with the child and that she was "not prevented from doing so by the person ... having 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." Id. The evidence presented by respondent was that in the six months prior to the filing of the adoption petition respondent failed to respond to text messages sent to her by petitioner in which petitioner was asking to visit with the child. The respondent also testified that she was not going to let petitioner see the child because she was following her heart. The only specific event that respondent claimed to have been missed by petitioner was the child's birthday party. According to respondent, she "put on Facebook" that she was having the child's birthday party "at the rec center" and petitioner "never came[,] and "never dropped him off a birthday card." Respondent indicated that petitioner had traveled to South Carolina to see her two older children, but did not stop to see the child, H.G. However, respondent also testified that petitioner was not specifically invited to the child's party. In fact, according to petitioner's testimony, the reality was that petitioner was told by respondent "not to try to contact the child," which respondent admitted. Petitioner was threatened by respondent with harassment charges and was told by respondent that the child "will be our son and that was ordered by the supreme court of Charleston, West Virginia."
See Syl. Pt. 2, In re Adoption of Schoffstall , 179 W. Va. at 350, 368 S.E.2d at 720 (holding that "[u]nder W. Va. Code , 48-4-3(a) [1984] [now W. Va. Code § 48-22-306 (2015) ], failure to pay child support alone does not constitute abandonment of the natural parents’ rights in an adoption proceeding."); accord Syl. Pt. 2, In re Petition for Adoption of Mullins by Farley , 187 W. Va. 772, 421 S.E.2d 680 (1992).
It could be inferred from this fact that petitioner was afforded visitation with her older children.
It is abundantly clear in this case that petitioner was put between a rock and a hard place simply because she sought visitation with her child. Given that the circuit court had left visitation to respondent's discretion, it is patently unfair and contravenes the plain language of the adoption statute to allow respondent to use her discretion to refuse petitioner any contact with the child and then turn around and use petitioner's failure to communicate or visit the child as evidence of abandonment. This factual scenario fits squarely within the statutory admonition that the petitioner can "not [be] prevented from" communicating or visiting with the child by "the person ... having care or custody of the child." See W. Va. Code § 48-22-306(a)(2). Here, respondent totally controlled petitioner's ability to communicate or visit with the child, admitted that she was not going to let petitioner have any contact with the child, and then leveraged this control to support the petition for adoption. The majority's affirmance of this result is in direct contravention with the express statutory language of West Virginia Code § 48-22-306(a)(2).
In summary, a de facto termination of parental rights under the auspices of abandonment, see W. Va. Code § 48-22-306, occurred in this case. The evidence of record – or the lack of such evidence – clearly demonstrates that respondent failed to meet her burden of proving the requisite statutory requirements needed in order for a circuit court to find abandonment. See generally Corey D. v. Travis R. , 245 W. Va. 232, 858 S.E.2d 857 (2021) (finding a de facto termination of biological father's parental rights violated the statutory directive of West Virginia Code § 48-24-103 (2015), which required court to declare him the father). I believe this Court should have reversed the circuit court's decision to grant the petition to adopt the child because the statutory requirements for conduct presumptively constituting abandonment were not met.
For all the foregoing reasons, I respectfully dissent. I am authorized to state that Justice Armstead joins in this separate opinion.