Joshua D.R. v. David A.M.

• Decision Date: 18 April 2013
• Docket Number: No. 11–1492.,11–1492.
• Citation: 746 S.E.2d 536,231 W.Va. 545
• Court: West Virginia Supreme Court
• Parties: JOSHUA D.R. and Sherrie L.R., Petitioners Below, Petitioners v. DAVID A.M., Respondent Below, Respondent.

231 W.Va. 545

746 S.E.2d 536

JOSHUA D.R. and Sherrie L.R., Petitioners Below, Petitioners

v.DAVID A.M., Respondent Below, Respondent.

No. 11–1492.

Supreme Court of Appeals of West Virginia.

Submitted: March 26, 2013.

Decided: April 18, 2013.

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).” Syl. Pt. 1, In re the Adoption of Jon L., 218 W.Va. 489, 625 S.E.2d 251 (2005).

2. “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).

3. “ ‘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).” Syl. Pt. 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).

4. “Although parents have substantial rights that must be protected, the primary goal ... in all family law matters, must be the health and welfare of the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

5. “ ‘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).” Syl. Pt. 1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009).

6. “ ‘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.’ SyllabusPoint 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873 (1998).” Syl. Pt. 3, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009).

Amber Urtso Sellaro, Esq., Sal Sellaro Culpepper Legal Group, PLLC, Morgantown, WV, for Petitioners.

J. Douglas Crane, Esq., J. Douglas Crane, L.C., Morgantown, WV, for Respondent.

PER CURIAM:

This is an appeal from an order of the Circuit Court of Marion County entered September 2, 2011, denying the petition for adoption filed by Joshua D.R. and his wife, Sherrie L.R. wherein Joshua sought to adopt the minor child of Sherrie and her former husband. On appeal, the petitioners argue that the circuit court committed error. Based upon the record, the parties' briefs and the arguments presented, this Court finds that the circuit court erred and abused its discretion in finding that the biological father had not abandoned the child and in denying the adoption.

I. Factual and Procedural Background

The petitioner, Sherrie L.R. (“the petitioner mother”), and the respondent, David A.M., were married on August 29, 1998. They had one child together, a son, C.M., who was born on October 12, 2000. The parties separated on December 5, 2005, following allegations of domestic violence by the petitioner mother. In January of 2006, upon the referral of C.M.'s pediatrician, the petitioner mother began taking C.M. to see Jeff Collins, a licensed psychologist, for weekly counseling sessions to address C.M.'s emotional and behavioral problems, including his violent and aggressive behaviors toward the petitioner mother.

The petitioner mother subsequently filed for divorce and, in an order entered on February 27, 2007, the divorce was granted, in part, on the basis of “cruel or inhuman treatment.” Through its order, the family court imposed a fifteen-year injunction against the respondent from molesting or interfering with the petitioner mother, including refraining from contacting her, either in person or by telephone, for “the purpose of harassment or threats[.]” ¹ Also, in this divorce order, the petitioner mother was granted primary custody of the child and the respondent was granted supervised visitation “[b]ased upon the testimony of the parties and the child's counselor, Mr. Jeff Collins [.]” Because C.M. had been receiving counseling from Mr. Collins for approximately one year at the time of the final divorce hearing, the family court ordered that the respondent's supervised visitation take place in Mr. Collins's office, “as Mr. Collins shall deem advisable.”

On June 15, 2011, the petitioner mother and her husband, petitioner Joshua D.R. (“the petitioner stepfather”),² filed a verified petition for adoption in the Circuit Court of Marion County in which the petitioner stepfather sought to adopt C.M. In their petition, they allege that the respondent had neither financially supported nor engaged in any contact with C.M. during the six months preceding the filing of the petition for adoption, although he was physically and financially able and had not been prevented from doing so. On or about August 4, 2011, the respondent filed a verified response and objection to the adoption alleging that he was current with his child support payments and that his efforts to maintain contact with his son had been “hindered by persistent interference from the child's mother.”

On August 15, 2011, a hearing was held before the circuit court on the adoption petition. Mr. Collins, the licensed psychologist who supervised the visitation between the respondent and C.M., testified that in January 2009, he received a telephone message from the respondent that he was “[n]ot going to be able to make it back anymore [for supervised visitation with C.M.]” and that he was going to “petition the Court about that matter.” Indeed, thereafter, no further visitationbetween the respondent and C.M. occurred at Mr. Collins's office. And, although the respondent advised Mr. Collins that he was going to “petition the Court” about visitation, he never did.

The record contains two letters from Mr. Collins to the family court dated June 9, 2008, and April 23, 2009, respectively, each reporting on the status of both the counseling of C.M. and the supervised visitation between C.M. and the respondent. In the June 9, 2008, letter, Mr. Collins recommended that the respondent: (1) undergo a psychological evaluation to assess the threat of violence and his overall level of functioning; (2) undergo a substance abuse evaluation to address and/or rule out substance abuse issues; and (3) engage in individual therapy to aid him in his role as a parent and with his ability to cope with ongoing stressors. Also, in this June 9, 2008, letter, Mr. Collins reported, in part, as follows:

I am aware of the current allegations that have surfaced which include [the respondent] abusing drugs, acquiring a weapon and threatening to shoot [the petitioner mother] in the face. I am aware that ... because of the circumstances that occurred when she received this information, [C.M.] is also aware of this threat. At this time, [C.M.] is very frightened and terrified that his mother will be harmed by his father. [C.M.] has voiced these concerns in other sessions as well....

One of the main concerns regarding [the respondent] is the issue of stability.

...

In closing, ... [t]here are many serious issues which need to be addressed which include ... the threat of physical violence to [the petitioner mother], [C.M.]'s emotional trauma regarding this alleged threat and the allegation of substance abuse....

Mr. Collins's April 23, 2009, letter, which appears to be his final report to the family court, indicates that although the respondent had continued to request unsupervised visitation with his son, Mr. Collins did not recommend such visitation because of his “concerns regarding [the respondent father's] stability” and because the respondent was unable to complete a list of expectations that he had given to him.³ Mr. Collins further reported that his biggest concern regarding visitation was the respondent's instability, which caused C.M.'s level of functioning to decrease.

Mr. Collins testified that between January 2007, when the supervised visitation began, and January 2009, when the respondent reported that he would not be returning for supervised visitation, the respondent appeared for only thirteen supervised visitations with his son. The respondent's last visitation with C.M. at Mr. Collins's office was on September 22, 2008.⁴ Mr. Collins expressed his belief that C.M.'s uncertainty as to whether his father was going to appear for visitation led to C.M. feeling “rejected or abandoned,” which led to C.M. “feeling sad and ultimately...