In the Matter of The Petition of Carey L.B. For the Adoption of Johanna C.D., 34218.

• Citation: 708 S.E.2d 461,227 W.Va. 267
• Decision Date: 22 June 2009
• Docket Number: No. 34218.,34218.
• Court: Supreme Court of West Virginia
• Parties: In the Matter of the Petition of CAREY L.B. for the Adoption of Johanna C.D., Grant Thomas D. and Jameson Todd D., Children Under the Age of Twelve Years.

227 W.Va. 267

708 S.E.2d 461

In the Matter of the Petition of CAREY L.B. for the Adoption of Johanna C.D., Grant Thomas D. and Jameson Todd D., Children Under the Age of Twelve Years.

No. 34218.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 2009.Decided June 22, 2009.

Syllabus by the Court

1. “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).

2. “The standard of proof required to support a court order limiting or terminating parental right to custody of minor children is clear, cogent and convincing proof.” Syllabus Point. 6, In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

3. “For 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] requires the parent to financially support the child, within the means of the parent. Furthermore, W. Va.Code § 48–4–3c(a)(2) [1997] 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.” Syllabus Point 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873 (1998).

David Allen Barnette, Laurie K. Miller, Vivian H. Basdekis, Jackson Kelly PLLC, Charleston, WV, Attorneys for Appellant.Edward L. Bullman, Charleston, WV, Attorney for Appellee.

PER CURIAM:

This case is before this Court upon appeal of the final order of the Circuit Court of Kanawha County entered April 3, 2008. In that order the circuit court denied the petition of Carey L. B.¹ to adopt the children of his wife, Jamie A.B and her former husband, Mark D. In this appeal the adoptive father contends that the circuit court erred by denying the adoption. Based upon the record before this Court, the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court finds that the circuit court erred in its finding that the biological father had not abandoned his children and reverses the decision below.

I.FACTS

Carey L. B.(hereinafter referred to as the “adoptive father” or appellant), is the husband of Jamie A.B. (hereinafter referred to as the “mother”). Jamie A.B. is the biological mother of three children; to-wit: Johanna Caroline D, born January 21, 1996; Grant Thomas D., born December 5, 2000; and Jameson Todd D., born September 12, 2003. Mark D. (hereinafter referred to as the “biological father”) is the children's biological father.

On August 10, 2007, the appellant filed a verified Petition in the Circuit Court of Kanawha County to adopt the aforenamed children. The children's mother's consent to the adoption is not at issue as she joined in her husband's petition.² The biological father's consent was not given to this adoption.³

Because of the biological father's lack of consent to this adoption, the adoptive father proceeded on a theory of abandonment. The adoptive father alleged in his petition as follows: “... Mr. [D.] has failed to financially support the minor children since April of 2006, and has not visited with the children for a period of more than six months.” The adoptive father also averred that adoption of the children was in their best interests.

The biological father and mother were married to each other on August 6, 1988, and separated on January 2, 2003. By order of the Circuit Court of Columbia County, Arkansas, the mother was divorced from the biological father on ground of indignities.⁴ In its final order of May 19, 2004, the mother was granted custody of the three children.

When the mother and biological father separated, the oldest child, Johanna C.D. was six years of age and her brother Grant T.D. was two years of age. At the time of the separation, the mother was pregnant with the youngest child, Jameson T. D., who was born approximately eight months later.

At the time of the divorce, the biological father was employed as an auditor for the State of Arkansas and earned approximately $60,000 per year. While the final order does not state her occupation, the mother was earning approximately $27,000 per year, an amount that was expected to increase to $35,000 per year. Child support was established by the May 19, 2004, order at the weekly sum of $245. The mother's claim for alimony was denied.

During the pendency of their divorce, the biological father relocated from Columbia County, Arkansas, to Mississippi County, Arkansas, estimated by the biological father to be 330 miles apart. The final order granted the biological father visitation with the children on a schedule promulgated by the court. The visitation schedule was amended by order of the Columbia County Circuit Court on February 14, 2005.⁵ At the time of the filing of the adoption petition in Kanawha County in August of 2007, the biological father was entitled to monthly visitation with the children and extended weeks during the summer school vacations.

Shortly after the divorce was effective, the mother married the adoptive father in Columbia County, Arkansas, on December 31, 2004. In July of 2005, the mother, adoptive father and children moved to West Virginia in support of the adoptive father's new job.

The biological father likewise remarried after the divorce from the mother, and he and his second wife continued to live in Mississippi County, Arkansas. On December 12, 2005, his second wife gave birth to a child. Tragically and unexpectedly, the biological father's wife died the next day because of delivery complications. It was at this time that the biological father stated he had no choice but to cease working so that he could take care of his infant daughter. At or about this same time the biological father began abusing prescription drugs. His drug use led to criminal proceedings in two states. ⁶

In December of 2006, the biological father entered into drug rehabilitation. At the hearing on the petition for adoption, the biological father stated that he borrowed money from his family members to pay the approximate $10,000.00 cost for the treatment.

The biological father admitted that he had not paid child support for some period of time. The following exchange occurred between the biological father and his attorney:

Q. Why didn't you pay any child support since 2006?

A. When I had the ability to pay, I paid. It's not like I don't plan on if I ever get back on my feet again, financially to make that right because it is something that if the Court says I have to pay, then I obviously have to pay. We can sit there and look at the circumstances on what actually took place and have an adjustment made. Right now, there has not been one and I fully intend to pay that when I get back on my feet.

Q. When do you think that's going to be?

A. Hopefully, when I can get all of these issues behind me and I can start working and have gainful employment.

It is undisputed that the arrearage in child support was $19,100.00 as of the hearing on December 18, 2007. It is likewise agreed that the biological father's last payment of child support was on June 15, 2006.

Neither party disputes that the last time the biological father saw the children was in October, 2006. The adoptive father asserts that since that time, there has been no contact between the biological father and the children. The biological father responded that he attempted to telephone the children and to send letters but got no response. When asked about the contact with the children, the biological father explained as follows:

Q. Why didn't you—you knew when you were going to rehab. They just didn't come one night and cart you off to rehab; correct?

A. That is correct.

Q. Why didn't you write your kids, call your kids, say look, Daddy's going to be out of pocket for awhile. He's going to try to go get better or whatever?

A. Well, this was the first part of December, which just a couple of weeks prior to that, I was refused to be able to even see my kids. They weren't going to show up. They weren't going to allow me to talk to them on the phone. It's really one of those conversations you want to be able to sit down with your kids and talk to them about. Not that you want to write down on a paper and let somebody else either totally throw it away or tell them, something different about what's going on in their dad's life. It's something I wanted to communicate personally to my children and I never got the chance to.

On the issue of the children's best interests, the adoptive father presented the testimony of a licensed social worker who performed a home study.⁷ This witness testified that she visited the home of the adoptive father and mother. The witness' duties included checking the adoptive father and mother's references, reviewing their financial situation to see if they could afford to support the children and performing a background check on the adoptive father. She also interviewed the oldest child, Johanna, who informed the witness that she had very little memory of her biological father. The child informed the social worker that she did not remember the last time she had seen her biological father. The social worker further...