In re Jeffries

• Decision Date: 14 December 1998
• Docket Number: No. 25198.,25198.
• Citation: 512 S.E.2d 873,204 W.Va. 360
• Parties: In re the Petition of Robert JEFFRIES and Judy Jeffries, his wife, for the adoption of Rebecca L. Jeffries, an infant.
• Court: West Virginia Supreme Court

512 S.E.2d 873

204 W.Va. 360

In re the Petition of Robert JEFFRIES and Judy Jeffries, his wife, for the adoption of Rebecca L. Jeffries, an infant.

No. 25198.

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1998.

Decided December 14, 1998.

D. Clinton Gallaher, IV, Esq., Fayetteville, West Virginia, Attorney for Appellants Robert and Judy Jeffries.

C. Elton Byron, Jr., Esq., Abrams & Byron, Beckley, West Virginia, Attorney for Appellee Timothy L. Davis.

Kyle G. Lusk, Esq., Beckley, West Virginia, Attorney for Appellee Tonya Jeffries.

STARCHER, Justice:

In this adoption case we are asked to determine whether the Circuit Court of Fayette County, in a final order dated December 11, 1997, erred in its holding that the biological father of a child did not abandon the child. The appellants, the individuals who have cared for the child since her birth and who are seeking to adopt her, allege that the appellee, the child's father, has failed to provide any financial support for the child since she was born 2½ years ago. Furthermore, the appellants contend that the appellee father never attempted to visit or otherwise communicate with the child prior to their filing of the adoption petition.

W.Va.Code, 48-4-3c [1997] sets forth factors whereby a court must presume that a parent has abandoned a child, and after reviewing the record, we conclude that those factors were met in this case. Accordingly, as set forth below, we hold that the circuit court erred in finding the appellee father did not abandon his child. We reverse the circuit court's December 11, 1997 order and remand the case for further proceedings.

I. Facts and Background

This case concerns the adoption of Rebecca Lynn Jeffries, a child born on April 23, 1996. The appellants are the individuals who seek to adopt the child, Robert and Judy Jeffries (who are unrelated to the child, though they share the same surname). The appellee, Timothy L. Davis, is the natural father of Rebecca. Mr. Davis resides in North Carolina.

The record indicates that Rebecca's biological mother, Tonya Jeffries, had a relationship with appellee Davis while living in North Carolina. At an unknown time, Ms. Jeffries terminated the relationship and moved to West Virginia to live with her grandmother.

On February 27, 1996, Ms. Jeffries attempted to contact the appellee by telephone at his mother's house in North Carolina. During this telephone call, Ms. Jeffries spoke with the appellee's mother, Ramona Davis, and stated that she was pregnant with the appellee's child. It appears from the record that appellee Davis was informed shortly thereafter by his mother that Ms. Jeffries was pregnant with his child.¹ However, the appellee testified that he did not believe he was the father of the child.

The appellee testified that he contacted Ms. Jeffries by telephone shortly before Rebecca's birth. In this conversation, the appellee testified that Ms. Jeffries told the appellee she thought the child was his, but if he wanted to see the child, he would "have to go to court and fight her in court."

At an undetermined time before Rebecca's birth, Ms. Jeffries moved into the house of the appellants, Robert and Judy Jeffries. The appellants offered care and assistance to Ms. Jeffries during her pregnancy, and she moved out shortly before the birth. The day after Rebecca was born in April 1996, the appellants took her home from the hospital, and she has continuously been in the sole custody of the appellants since that date.²

After Rebecca's birth, appellee Davis made no attempt to locate her. He testified that he made no effort to visit or otherwise communicate because he "didn't know where she was." The appellee indicated that during this period he moved and lost Ms. Jeffries' telephone number, and said that while he had visited with Ms. Jeffries' grandmother at her West Virginia residence, he could not remember the way to get there.

Appellant Robert Jeffries testified that in July 1996 he telephoned the appellee. He stated that he told the appellee of Rebecca's birth, and asked the appellee to give his consent to allow the appellants to adopt Rebecca. The appellee said "he'd have to think about it."

Appellee Davis testified that he first learned of Rebecca's birth in August 1996, when a lawyer for the appellants mailed a letter to him in North Carolina. In the letter, the lawyer enclosed a form for the appellee to sign, through which he would give his consent to Rebecca's adoption by the appellants. The appellee refused to sign the form.

Three months later, the appellee had a blood test completed to determine paternity. In December 1996, the test results were returned confirming that the appellee was the natural father of Rebecca. The appellee filed a "Petition to Establish Paternity and Custody" in the circuit court on April 8, 1997, nearly a year after Rebecca's birth.³

On September 17, 1997, the appellants filed the instant petition for the adoption of Rebecca. The natural mother, Ms. Jeffries, consented to the adoption. The appellants alleged in their petition that the natural father, appellee Davis, had abandoned the child pursuant to W.Va.Code, 48-4-3c [1997] because he (1) had failed to financially support the child, and (2) failed to visit or communicate with the child.

An evidentiary hearing was held on October 14, 1997. At that hearing, the appellee admitted that he had never done anything to financially support Rebecca.⁴ Additionally, he admitted he had never visited or communicated with Rebecca. The appellee testified that he had a lawyer, and knew that the appellants had a lawyer—still, he admitted he never tried to communicate through the lawyers to pay any child support to the appellants, or to ask where Rebecca was located so that he could arrange a visit or otherwise communicate with her.

In a final order dated December 11, 1997, the trial court found that the appellee was not aware of Rebecca's birth or her place of residence. The trial court further found that the appellee "took immediate action" to have a blood test performed when he received the letter from the appellants' attorney, and that he filed proceedings to get custody after receiving a positive test result. The court concluded that appellee Davis had made a "reasonable effort to try to determine both the location of this child and to make visitation with the child[.]"

The trial court held that the appellants had failed to prove the appellee abandoned Rebecca. Accordingly, the trial court denied the petition for adoption.

This appeal of the circuit court's order followed.

II. Standard of Review

"This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

III. Discussion

The appellants contend that appellee Davis does not have the right to custody of his daughter Rebecca, and contend that the circuit court erred in its determination that appellee Davis did not abandon her. They argue that the appellee failed to try to track down the child after first learning that Ms. Jeffries was pregnant, and later after learning of her birth; failed to financially support the child, even after learning the child was his; and failed to communicate with the child for periods in excess of 6 months.

Appellee Davis argues that he did not abandon his daughter. He takes the position that once he learned the appellants were trying to adopt his purported daughter, he initiated a blood test to see if he really was the natural father. When the test confirmed he was the natural father, he filed legal proceedings to get custody. The appellee argues that he never visited with Rebecca because he could not locate her, and never realized he could provide financial support for his daughter through his attorney.

We have often stated that a biological parent has a right to the custody of his or her child. In the Syllabus to State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969), we stated that:

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.

In accord, Syllabus Point 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975). While there may be situations where the welfare of the child and the natural parent are in conflict, "there is a strong presumption that the welfare of the child is well protected when he is in the custody of an unoffending natural parent." Honaker v. Burnside, 182 W.Va. 448, 451, 388 S.E.2d 322, 324 (1989), citing Hammack, 158 W.Va. at 347, 211 S.E.2d at 121.

However, as stated in State ex rel. Kiger, supra, abandonment of a child voids the presumption that a biological parent is fit to have custody. We have defined abandonment to mean "any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all claims to the child." Matter of Adoption of Schoffstall, 179 W.Va. 350, 352, 368 S.E.2d 720, 722 (1988) (citations omitted). We gave a broad outline of what constitutes abandonment in the case of In re Harris, 160 W.Va. 422, 428, 236 S.E.2d 426, 430 (1977):

Where a father abandons his children, provides no support and maintenance, does not visit the children, and does not in any other reasonable way, given his position in life and the opportunities for the exercise of his parental rights, exercise the authority or undertake the responsibilities of a parent, ... we would not be

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