In re Adoption C.R.

• Decision Date: 08 May 2014
• Docket Number: No. 13–0505.,13–0505.
• Citation: 233 W.Va. 385,758 S.E.2d 589
• Court: West Virginia Supreme Court
• Parties: In re ADOPTION OF C.R.

233 W.Va. 385

758 S.E.2d 589

In re ADOPTION OF C.R.

No. 13–0505.

Supreme Court of Appeals of West Virginia.

Submitted April 9, 2014.

Decided May 8, 2014.

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).

2. “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

3. “When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syllabus point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).

4. “The duty of a parent to support a child is a basic duty owed by the parent to the child[.]” Syllabus point 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991).

Allison S. McClure, McNeer, Highland, McMunn and Varner, L.C., Clarksburg, WV, for the Petitioners.

PER CURIAM:

The petitioners herein and petitioners below, C.B.¹ (hereinafter “Mother”) and W.B. (hereinafter “Stepfather”), appeal from an order entered April 18, 2013, by the Circuit Court of Harrison County. By that order, the circuit court denied the petitioners' motion to terminate the parental rights of the respondent herein and respondent below, G.R. (hereinafter “Father”), ² and denied their motion to allow Stepfather to adopt the minor child. On appeal to this Court, the petitioners contend that the circuit court erred by denying the subject stepparent adoption. Upon a review of the parties' briefs, the record on appeal, and the pertinent authorities, we reverse the April 18, 2013, order of the Harrison County Circuit Court and remand this case for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

Mother and Father were married to each other when the subject child, C.R., was born in 2001. In 2004, Father, who was an approved childcare provider, allegedly sexually abused a six-year-old child for whom he was caring. Father was convicted of two counts of first degree sexual abuse in the Circuit Court of Harrison County on January 9, 2007. He served approximately two and one-half years for these convictions and is currently serving twenty-five years of probation; as a result of these convictions, he also is registered as a sex offender. A condition of his probation requires Father to petition the court for permission to have visitation with any minor child. It does not appear that Father has ever requested permission to visit with C.R., and he last visited with his child in 2005. Father has, however, paid court-ordered child support for C.R. through wage withholding since his release from incarceration. ³

Mother and C.R. have been living continuously with Stepfather since July 2006. Stepfather considers himself to be the child's father, and the child considers Stepfather to be likewise. Mother and Father were divorced by order entered August 7, 2009. Because he was incarcerated and required to register as a sex offender upon his release, Father was not granted visitation with C.R. in the final divorce order. Additionally, consistent with the conditions of his supervised release and probation, the parties' divorce order specifically requires Father to petition the court to modify the child's custody to permit Father to request supervised visitation with his child. It does not appear from the record that Father has ever requested permission from the court to visit with his child or that he has had, or has attempted to have, any other contact with the child. Mother and Stepfather were married on October 2, 2010.

On June 21, 2012, Mother and Stepfather filed a “Petition for Adoption” in the Circuit Court of Harrison County to permit Stepfather to adopt C.R. C.R. desires to be adopted by Stepfather and would like to take Stepfather's last name. Father, however, refused to consent to the adoption, sent a letter to the court specifically objecting thereto, and appeared pro se at the adoption hearing. By order entered April 18, 2013, the circuit court denied the adoption, ruling that “the biological father has not abandoned the minor child.” In this regard, the circuit court relied upon W. Va.Code § 48–22–306(a) (2001) (Repl.Vol.2009), which requires both a birth parent's failure to financially support his/her child and a failure to visit or communicate with his/her child to establish the presumption of abandonment. Citing Syl. pt. 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873 (1998). The court further recognized the petitioners' concerns regarding Father's parental fitness in light of his conviction and incarceration for sexual abuse of another child, but determined that “West Virginia's adoption statutes, W. Va.Code §§ 48–22–101, et seq., ... do not provide the proper forum for the termination of the biological father's parental rights in this particular regard.” From this adverse ruling, Mother and Stepfather appeal to this Court.

II.STANDARD OF REVIEW

In the instant proceeding, we are called upon to determine whether the circuit court properly applied the applicable law to deny the requested stepparent adoption. We previously have held that,

[i]n 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. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Furthermore, insofar as the instant proceeding concerns a matter of statutory construction, we review anew the circuit court's construction of the applicable adoption statutes: “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). Accord 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.”). Mindful of these standards, we proceed to consider the assigned errors.

III.DISCUSSION

The sole issue presented for our consideration and resolution in this proceeding is whether the circuit court properly interpreted and applied the pertinent adoption statutes to deny the requested stepparent adoption based upon its conclusion that Father had not abandoned his child. On appeal to this Court, Mother and Stepfather argue that Father's conduct constitutes abandonment and that the circuit court erred by denying their adoption petition. Based upon our application of the governing law to the facts of this case, we agree with the petitioners that the circuit court erred by denying the requested stepparent adoption.

In West Virginia, adoptions are governed by statute. See generallyW. Va.Code § 48–22–101 et seq. When addressing an issue of statutory construction and application, we previously have ruled that “[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. at 587, 466 S.E.2d at 438. Thus, “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). Accord Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.”).

At issue in the instant proceeding is whether Father has abandoned his child so as to warrant a termination of Father's parental rights to permit Stepfather to adopt the child. Because the subject child was born during the parents' marriage, both Mother's and Father's consent to the adoption, or relinquishment of parental rights to permit the adoption, is required unless one of the statutory exceptions to the consent/relinquishment requirement is satisfied:

(a) Subject to the limitations hereinafter set forth, consent to or relinquishment for adoption of a minor child is required of:

(1) The parents or surviving parent, whether adult or infant, of a marital child[.] ⁴

....

(b) Consent or relinquishment shall not be required of a parent or of any other person having custody of the adoptive child:

(1) Whose parental rights have been terminated pursuant to the provisions of article three [§§ 49–3–1 et seq.], chapter forty-nine of this code;

(2) Whom the court finds has abandoned the child as set forth in 22–306 [§ 48–22–306]; or

(3) Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent. In such stepparent adoption, the parent must assent to the adoption by joining as a party to the petition for adoption.W....