| David Allen Barnette
Laurie K. Miller
Vivian H. Basdekis
Jackson Kelly PLLC
Charleston, West Virginia
Attorneys for Appellant
| Edward L. Bullman
Charleston, West Virginia
Attorney for Appellee
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
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. (See footnote 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
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. (See footnote 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 stated that Johanna referred to the adoptive father as her dad during their discussions.
The social worker also observed the other two children in the home. She ultimately
recommended and testified that the adoptive father should be allowed to adopt the children.
The petitioner also presented the deposition testimony of Dr. Russell Volten.
M.D., a psychiatrist who evaluated the adoptive father, mother and the children. Dr. Volten
testified that the children had expressed a desire to be adopted by the adoptive father, who
was already acting as a psychological parent to the children. (See footnote 8) Dr. Volten opined that the
adoption would be in the children's best interests. (See footnote 9)
By order entered April 3, 2008, the circuit court denied the petition for adoption. The circuit court found as follows:
1. Mark [D] is the biological father of the minor children named in the instant proceeding. He does not consent to the adoption of his children by the Petitioner.
2. Mr. [D] has filed a petition to modify a custody order entered in Arkansas against his former wife, the mother of the children and now the wife of the petitioner. At the time of the filing of the instant petition, that petition to modify was pending in the Arkansas court.
3. Mr. [D] is currently unemployed. He was admitted to drug rehabilitation form (sic) December 6, 2006, until August 15, 2007. The cost of the inpatient rehabilitation was $10,000 for the first 90 days.
4. Mr. [D] is under indictment in Arkansas for 73 counts of prescription forgery. He is also charged with violation of probation for three counts of attempting to obtain narcotics in Tennessee and was place (sic) on pretrial diversion from December 23006 (sic) until October 30, 2007.
5. Mr. [D] last saw his children during his October 2006 visitation.
6. Mr. [D] testified that in November 2006, the Petitioner, Carey L. B., told him he could not see or visit with his children.
7. Mr. [D] testified that he attempted at least on (sic) time per month to contact the children by telephone while he was hospitalized for drug rehabilitation and the phone calls went unanswered. He testified that on at least one occasion when he called to speak with the children, the Petitioner told him never to call again and
hung up the telephone.
8. Mr. [D] testified that he sent letters to the children and the sending [of] letters to them was also a part of his drug rehabilitation program. He received no response. He testified his last letter to the children was sent in July 2007.
9. Mr. [D] did not present in documentary evidence to support his attempt to [con]tact his children by letter or telephone.
10. The Petitioner denies ever hiding the children from Mr. [D] or denying visitation. He testified that he has given Mr. [D] his home phone number and cell[u]ar phone number.
11. On the issues of attempting to contact the children and interfering with contacting the children, the Court did not find any one witness more credible than the other.
12. Mr. [D] testified that he has not paid child support because he has been unemployed and unable to pay since May 2006. He was hospitalized in a drug rehabilitation program from December 2006 until August 2007. Mr. [D] testified he successfully completed the drug rehabilitation program and is now seeking employment in order to satisfy his child support obligations.
13. The Petitioner testified that he is the sole
source of monetary support for his wife
and her children. He has never been
convicted of any crime nor does he have
any addictions to controlled substances.
14. Jamie [A. B.], the biological mother of the children testified that Mr. [D] has been ordered to pay child support in the amount of $245 weekly, and that he is $19,000 in arrears. She and Mr. [D] were divorced of (sic) Order of the Circuit Court of Columbia County, Arkansas, entered December 1, 2004. She and the Petitioner were married December 31, 2004.
15. Both of the [petitioners] testified that Mr. [D] has failed to financially support the children since April 2006 and has made no effort to visit with the children for more than 6 months. Both deny any interference with contact between Mr. [D] and his children and both testified that they believed it was in the best interest of the children for the Court to grant the adoption.
The circuit court concluded that the standard of proof necessary to terminate the biological father's parental rights was clear, cogent and convincing evidence. The circuit court also concluded that while the biological father had not provided child support, there were reasons for this lapse. The order stated, inter alia
...[H]is addictions, problems with the law, and
hospitalization for drug rehabilitation has likely
been a major factor in hindering him from doing
so, not any intent or settled purpose to forgo (sic)
his parental duties or relinquish all parental claims
to the children.
The lower court's order also concluded that the adoptive father had failed to show unrebutted conduct on the part of the biological father presumptively constituting abandonment as defined by W. Va. Code §48-22-306. Conversely, the lower court found the biological father had presented evidence of compelling circumstances preventing him from supporting, visiting or otherwise communications (sic) with his children, and cited W. Va. Code §48-22-306(d). Finally the circuit court concluded that based upon the record, it could not find intent on the part of the biological father to abandon his children.
It is from the circuit court's April 3, 2008, order denying his petition for adoption that the adoptive father and the mother now appeal.
However, as stated in State ex rel Kiger, abandonment of a child voids the
presumption that a biological parent is fit to have custody of his or her child. This Court has
defined abandonment as any conduct on the part of the parent which evinces a settled
purpose to forego all parental duties and relinquish all parental claims to the child. Matter
of Adoption of Schofferstall, 179 W. Va. 350, 352, 368 S.E.2d 720, 722 (1988) (citations
omitted). West Virginia Code §48-22-102 (2001) defines abandonment as any conduct by
the birth mother, legal father, determined father, outsider father, unknown father or putative
father that demonstrates a settled purpose to forego all duties and relinquish all parental
claims to the child.
In considering a claim of abandonment, courts may be guided by resort to West Virginia statutory law. West Virginia Code §48-22-306 (2001) establishes a statutory presumption of abandonment. The statute states, in pertinent part:
(a) Abandonment of a child over the age of six months shall be
presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
[Emphasis added.] In Syllabus Point 2, In re Jeffries, 204 W .Va. 360, 512 S.E.2d 873 (1998), we held:
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)  (See footnote 10) requires the parent to financially support the child, within the means of the parent. Furthermore, W. Va. Code §48-4-3c(a)(2)  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.
The adoptive father herein asserts that he presented sufficient evidence to invoke a statutory presumption of abandonment, as per West Virginia Code §48-22-306. In the instant case, the adoptive father showed, through competent evidence, that the biological father had not provided child support to the children for a period in excess of six months. Indeed, the record reflects that the biological father last paid child support on June 15, 2006. The adoptive father also proved that child support obligation of the father was in arrears in an approximate amount of $19,000.00. Since the biological father's monthly child support payment was established at the weekly sum of $245.00, we observe that the biological father's arrears appeared to have been greatly in excess of six months.
Mere non-payment of child support is not enough to invoke the presumption contained in W. Va. Code §48-22-306. The adoptive father must also show that the biological father failed to support the children within the biological father's means and abilities. The adoptive father was able to show at the hearing that prior to the divorce between the mother and biological father, the biological father was earning approximately $60,000.00 as an employee of the State of Arkansas and was a college graduate. The record further shows that after the biological father's divorce from the mother, he became mired in substance abuse, resulting in numerous arrests and other nightmarish consequences of his addiction. His entry into a long-term residential treatment shows an attempt to free himself of the chains of drug addiction. However, some of his choices indicate that while he was in treatment, he put other needs ahead of his children's financial support. Specifically, the record indicates that during the same period in excess of six months prior to the petition for adoption being filed in which no child support was paid and an arrearage in support accumulated in excess of $19,000.00, the biological father incurred and serviced an obligation to purchase a car, got married and was supported by his spouse, arranged for family members to pay for his medical expenses and was able to come up with the $10,000 required for drug rehabilitation treatment. All of this occurred while the children were not being financially supported by their biological father.
Notwithstanding the lack of financial support of his children, W. Va. Code §48-22-306(a)(2) also requires that the biological father has failed to visit or otherwise communicate with his children within the six months prior to the filing of the adoption petition. On the issue of whether the biological father visited with the children, and most importantly within the six-month period prior to the filing of adoption petition on August 10, 2007, the adoptive father showed at the hearing that the last physical interaction between the biological father and the children was October of 2006. This time is undisputed. Other contact, including telephone calls, letters or cards, was non-existent. The record amply demonstrates that the biological father failed to expend even minimal effort to note important occasions in his children's lives, such as the sending of a birthday card.
We conclude that the evidence adduced at the hearing by the adoptive father
clearly and convincingly invoked the presumption of abandonment defined in W. Va. Code
§48-22-306, and as such, the burden of persuasion to rebut the presumed abandonment
shifted to the biological father. West Virginia Code §48-22-306(d) states in pertinent part
that notwithstanding any provision in this section to the contrary, any birth parent shall have
the opportunity to demonstrate to the court the existence of compelling circumstances
preventing said parent from supporting, visiting or otherwise communicating with the
child[.] Also, 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. See Syllabus Point 6, In Re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
The trial court seems to have improperly applied the burden of persuasion of rebuttal to the adoptive father by concluding in the final order that [t]he Petitioner has failed to show unrebutted conduct on the part of the biological father presumptively constituting abandonment. The circuit court's findings seem to indicate a misunderstanding in two areas: first, that the obligation of the adoptive father is to show unrebutted conduct on the part of the biological father; and second, that once the presumption of abandonment is invoked, the biological father must rebut that presumption. We believe the requirement imposed by the lower court shows a misinterpretation of the statutory presumption. It is incumbent upon the biological father to rebut the presumption of abandonment once the presumption has been triggered.
Having reviewed the entire record before us, we conclude that clear, cogent
and convincing proof exists in the record that the biological father has wholly failed to
provide financial support for his children, and that the biological father failed, for a
continuous period in excess of the six months preceding the filing of the adoption petition,
to visit or otherwise communicate with his children when he knew where the children were,
was not physically or financially prevented from doing so, and was not prevented by the
mother from doing so. As such, the circuit court erred when it found that the biological
father had not abandoned his children.
On the issue of the children's best interests, the adoptive father presented the testimony of a social worker who performed a home study as well as the testimony of a psychiatrist. Both supported the adoption of the children by the appellant. The record, therefore, has been largely developed and simply awaits the circuit court's findings and conclusions in the final order of adoption. While the final order in this matter did not address whether the proposed adoption was in the best interests of the children, we find that there was sufficient evidence contained in the record to conclude that this adoption does further the children's best interests. As such, this case must be remanded to the lower court for prompt resolution of this case by ordering forthwith the adoption of the children by the adoptive father.