In re Of

• Decision Date: 19 October 2018
• Docket Number: No. 17-1133,17-1133
• Court: West Virginia Supreme Court
• Parties: In re Adoption of I.J.E. and T.M.E.

In re Adoption of I.J.E. and T.M.E.

No. 17-1133

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 19, 2018

(Nicholas County 17-A-21)

MEMORANDUM DECISION

Petitioner J.E.E., by counsel Harley E. Stollings, appeals the Circuit Court of Nicholas County's October 18, 2017, order finding that he abandoned children I.J.E. and T.M.E.¹ Respondent R.M., by counsel Nigel E. Jeffries, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in making certain factual findings, failing to consider certain facts, and finding that he abandoned the children.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Prior to the initiation of these proceedings, petitioner, the biological father of the children at issue, and the children's mother were married. The marriage resulted in the birth of both children at issue. In November of 2011, petitioner and the children's mother were divorced by order of the Family Court of Clay County. According to the parties, the family court ordered that petitioner was to have no contact with the children until he completed the following services: (1) Batterer's Intervention Prevention Program ("BIPPS"); (2) individualized parenting education; and (3) adult life skills education.² The family court further ordered petitioner to pay monthly

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child support. Following the divorce, the mother remarried in December of 2011. She and the children have resided with the stepfather, respondent herein, since that time.

In April of 2016, petitioner filed a motion to modify the parenting plan and child support in an effort to exercise visitation with the children. According to respondent, the family court denied this motion on the basis that petitioner failed to comply with the services previously ordered. Accordingly, the family court found that it was in the children's best interests to have no contact with petitioner until such time as he complied with those services.

Petitioner was incarcerated for a burglary conviction in February of 2017 and remained incarcerated throughout the underlying proceedings.³ As a result of his incarceration, petitioner's monthly child support obligation was reduced to zero. In August of 2017, the children's mother and stepfather filed a petition for adoption in the Circuit Court of Nicholas County in which they alleged that petitioner abandoned the children. In October of 2017, the circuit court held a hearing on the contested adoption. Ultimately, the circuit court found that petitioner abandoned the children. It is from this order that petitioner appeals.

This Court has previously established the following 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).

Syl. Pt. 1, Joshua D.R. v. David A.M., 231 W.Va. 545, 746 S.E.2d 536 (2013) (quoting Syl. Pt. 2, Walker v. W. Va. Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997)). Upon our review, we find no error in the proceedings below.

First, petitioner alleges that the circuit court erred in finding that "[w]hile [petitioner] avers that he did not know the children's address, it is apparent that he made little to no effort to ascertain it." Before this Court, petitioner fails to outline what steps he took to obtain the children's address so that he could contact them or otherwise show that the circuit court's order in this regard is contrary to the evidence. In short, petitioner wholly fails to provide any argument that he did, in fact, attempt to obtain the children's address. Instead, petitioner argues that he was "making progress toward reestablishing parenting privileges at the time of the filing of the adoption petition[,]" as evidenced by his alleged participation in previously ordered services. Because petitioner does not provide any argument to show that the circuit court erred in finding that he made little to no effort to ascertain the children's address, we find that he is not

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entitled to relief in this regard. However, to the extent that petitioner is arguing that his alleged compliance with the required services was in furtherance of contacting the children and, thus, renders the circuit court's finding erroneous, we similarly find no error.

Petitioner acknowledges that the family court's prior order barred him from contacting the children until such time as he completed the BIPPS program, parenting education, and adult life...