In re H.G., 20-0224

Case DateNovember 19, 2021
CourtSupreme Court of Virginia


No. 20-0224

Supreme Court of Appeals of West Virginia

November 19, 2021

Submitted: October 26, 2021

Appeal from the Circuit Court of Kanawha County The Honorable Charles King, Jr., Judge Case No. 19-A-156

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.


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)." Syllabus Point 1, In re the Adoption of Jon L., 218 W.Va. 489, 625 S.E.2d 251 (2005).

2. "'In 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.' Syllabus Point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973)." Syllabus Point 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).

3. "'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.' Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969)." Syllabus Point 1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009).

4. 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.

5. "'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)." Syllabus Point 2, Joshua D.R. v. David A.M., 231 W.Va. 545, 746 S.E.2d 536 (2013).

6. 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.

7. "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).



Respondent P.Y. has been H.G.'s primary caretaker since he was an infant in 2012, and his legal guardian since 2016.[1] In 2018, this Court affirmed a circuit court order vesting her with sole discretion regarding visitation with the child.[2] 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.

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.


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."[3] 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.[4]

The circuit court ultimately terminated the parental rights of the child's birth father due to abandonment.[5] 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.[6] 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."[7]

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.[8] 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.

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."[9]The adoptive mother stated that it was only after...

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