State ex rel. Smith v. Abbot

• Decision Date: 15 May 1992
• Docket Number: No. 20854,20854
• Citation: 418 S.E.2d 575,187 W.Va. 261
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Naoma Lee SMITH, Petitioner, v. Honorable W. Robert ABBOT, Judge of the Circuit Court of Fayette County, and Christopher Duke King, Respondents.

Page 575

418 S.E.2d 575

187 W.Va. 261

STATE of West Virginia ex rel. Naoma Lee SMITH, Petitioner, v. Honorable W. Robert ABBOT, Judge of the Circuit Court of Fayette County, and Christopher Duke King, Respondents.

No. 20854.

Supreme Court of Appeals of West Virginia.

Submitted March 3, 1992.

Decided May 15, 1992.

Syllabus by the Court

1. "Mere delay will not bar relief in equity on the ground of laches. 'Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right.' " Syllabus point 2, Bank of Marlinton v. McLaughlin, 123 W.Va. 608, 17 S.E.2d 213 (1941).

2. Where the natural parent fails to exercise his statutory right to contest an adoption performed without the consent of that natural parent under W.Va.Code § 48-4-6(a) (1979), the equitable doctrine of laches may apply to bar any attempt to invalidate that adoption order.

James M. Cagle, Charleston, for petitioner.

Carl L. Harris, Blake & Harris, Fayetteville, for respondent Christopher Duke King.

BROTHERTON, Justice:

The petitioner, Naoma Lee Smith, invokes the jurisdiction of this Court in a petition for a writ of prohibition to prevent the Circuit Court of Fayette County from granting the respondent's motions for custody or increased visitation, and also asks that the petitioner be named the exclusive parent with legal custody of the child.

The respondent, Christopher Duke King, opposes Smith's petition and asks that the final adoption decree entered on March 30, 1983, be set aside and that he be awarded the care, custody, and control of the child, R.B. In the alternative, he argues that he be awarded increased visitation rights. Finally, he requests that the Court hold the petitioner, Naoma Smith, in contempt of court for "willful and contumacious violation of the terms of the final adoption decree" for failing to have the child known by the surname King and for allowing only limited visitation, and that Ms. Smith be required to pay the petitioner's attorneys fees and court costs.

The subject of this petition is a minor child known alternatively as R.B. King and R.B. Smith. He was born on April 14, 1982, in Raleigh County, the natural child of Deborah Lynn Ingram. The petitioner, Ms. Smith, however, took the child home from the hospital. On April 19, 1982, Deborah Ingram consented to the adoption of R.B. by Ms. Smith and consented to the change of his last name to Smith. At that time, she identified Christopher Duke King as the putative father of the child. Mr. King questioned the paternity of the child and submitted to blood tests, which eventually showed that he was, in all probability, the father of the child. On February 17, 1983, after the test results were obtained, Mr. King, acting by counsel, objected to the adoption and prayed for custody of R.B. However, Judge Abbot permitted the adoption of R.B. by Ms. Smith after severing the natural mother's parental rights. However, he failed to sever Mr. King's parental rights and provided Mr. King with visitation. ¹ The court, on its own motion, ruled that the child's surname was King, not Smith as requested by the petitioner. Finally, the court ruled that Mr. King did not have to pay support, despite having visitation rights.

Since the adoption, R.B. has lived with the petitioner and her two daughters. He is currently a student in the fourth grade at an elementary school in Fayette County, West Virginia. There has been no allegation that Ms. Smith has been anything but an excellent mother to R.B. Mr. King has resided in North Carolina since 1983. Since the adoption, the respondent King has visited the child approximately fifteen times in nine years and taken the child out to buy birthday and Christmas gifts. However, he has never provided any child support for R.B.

Although no date is given, the respondent King has married Deborah Ingram, the natural mother of R.B. They have two girls, who are the natural sisters of R.B. Thus, in 1991, King petitioned for modification of the adoption decree, asking that the March 30, 1983, adoption decree be set aside, or in the alternative that visitation be enforced according to the rules found in the Circuit Court of Fayette County. He also asked that Ms. Smith be held in contempt for allegedly violating the terms of the final adoption decree regarding visitation and the child's name. Mr. King stated that he was "now gainfully employed and living in a stable family relationship with the mother of the infant who is the subject of this action and their two daughters, the natural sisters of the infant, R.B. King."

Judge Abbot entered an order dated November 14, 1991, in which he stated that King was entitled to visitation during the weekend beginning November 15, 1991, which would not include overnight visitation. Beginning March 13, 1992, the petitioner was entitled to one overnight visitation. The petitioner was also permitted to have overnight visitation at his residence in the State of North Carolina beginning June 19, 1992. The petitioner was permitted to have R.B. for a one week period during the summer of 1992. The visitations were to continue monthly thereafter as the parties deem appropriate and major holidays shall be alternated. The court also ruled that the respondent violated the prior order of the court in that the child is known as R.B. Smith instead of R.B. King. Finally, the order states that the child and the petitioner should have unlimited telephone contact. This petition for a writ of prohibition states the petitioner's objections to that order.

As in any situation involving the welfare of minor children, the paramount concern in this adoption case is what is in the best interests of the child. "[T]he welfare and best interest of the child should be the determinant of who should receive ... custody." In re Custody of Cottrill, 176 W.Va. 529, 346 S.E.2d 47, 50 (1986); see also, Davis v. Hadox, 145 W.Va. 233, 114 S.E.2d 468 (1960). Mr. King's desire to invalidate the adoption order did not take its present form until after his marriage to R.B.'s natural mother, who voluntarily severed all parental rights nine years ago. Invalidating the 1983 adoption decree and giving custody to the respondent would, in essence, allow the natural mother to avoid her surrender of parental rights ² and threaten the relationship developed by the adoptive mother with R.B. over his first nine years of life.

Chapter 48, Article 4 of the West Virginia Code provides the parameters within which an adoption is considered valid. West Virginia Code § 48-4-1(b)(1) (1979) defines consent in an adoption case:

(1) In the case of a child sought to be adopted, the written consent, duly acknowledged, of the mother and father (in the case of an illegitimate child, the mother and the determined father) or the surviving parent of such child sought to be adopted must be obtained and presented with the petition....

In this case, it is quite obvious that W.Va.Code § 48-4-1(b)(1) was not complied with by the court at the time of the adoption, since Mr. King, who objected to the adoption, never gave written consent and the adoption order specifically found that his parental rights were not severed. ³ Therefore, the original adoption order was technically invalid. This finding, however, does not automatically place custody in the hands of the natural father.

West Virginia Code § 48-4-6 (1979) provides the method by which an adoption can be revoked. Subsection (a) provides:

(a) A parent or guardian of a legitimate child, or the mother or determined father or guardian of an illegitimate child who did not consent to the adoption of such child, any parent including the determined father of an illegitimate child entitled to notice as provided in subdivision (1), subsection (b), section one [§ 48-4-1] of this article who was not served with notice as provided in said subdivision (1), or any father of an illegitimate child entitled to notice as provided in subsection (b), section one [§ 49-3-1], article three of chapter forty-nine, who was not served with notice as provided in said subsection (b) may, at any time within one year after learning of or having reasonable opportunity to learn of the adoption, apply by petition to the court in which the adoption was granted, praying that the adoption be vacated. The court to which such application is made shall fix a date and time for a hearing, shall cause notice thereof to be given to the person or persons or agency who were permitted to adopt such minor, and, at the time so fixed, shall hear the petitioner and all parties interested, and may vacate or affirm the adoption in its discretion. Any party interested may appeal to the supreme court of appeals from the decision of the court in the matter, as in other civil cases. ⁴

Other states have recognized that failure to contest an adoption in a timely manner may preclude even a natural parent from bringing a subsequent action to vacate the adoption. In some jurisdictions, claims of irregularities in the adoption proceedings are barred unless an action to vacate an adoption is brought within the period specified by statute. ⁵

Even where there is no similar statute, the equitable doctrine of laches may preclude delayed challenges to an adoption. In Rodgers v. Rodgers, 184 W.Va. 82, 89, 399 S.E.2d 664, 671 (1990), we quoted syllabus point 2 of Bank of Marlinton v. McLaughlin, 123 W.Va. 608, 17 S.E.2d 213 (1941):

Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right.

See also, Kuhn v. Shreeve, 141 W.Va. 170, 89 S.E.2d 685 (1955); Pownall v. Cearfoss, 129 W.Va. 487, 40 S.E.2d 886 (1946). It has been held that the defense of laches is sustainable only on proof of two elements: (1) lack of diligence by the party against whom the defense is...