In Re: Adoption of L.A.
16-0149
| W. Va. | Mar 1, 2017Background
- Child born Sept. 2012; parents lived together until separation in Dec. 2013. Father paid child support via wage withholding until he was fired in July 2014 after a positive work-related drug test.
- Family Court awarded child support, restricted Father’s visitation (terminated pending drug test/employment) in April–June 2015; those visitation orders contained no formal findings of parental unfitness and were not appealed.
- Father became unemployed, gave his tax refund to Mother to satisfy arrears, sought employment, stopped using drugs, and in Aug. 2015 petitioned pro se to reinstate visitation; Family Court restored supervised, limited visitation in Sept. 2015 (order not appealed).
- Mother and Stepfather filed a stepparent adoption petition (filed for record Oct. 1, 2015) alleging six months’ nonpayment and no visitation to trigger the statutory presumption of abandonment.
- Circuit Court granted the adoption (Jan. 14, 2016), finding abandonment under W. Va. Code § 48-22-306(a); Father sought Rule 60(b) relief and appealed. WV Supreme Court reversed and remanded, holding Father did not abandon the child.
Issues
| Issue | Mother/Stepfather's Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether a statutory presumption of abandonment arose under W. Va. Code § 48-22-306(a) (6 months’ failure to support and to visit/communicate) | Father failed to support or visit for the six months immediately preceding the adoption petition, triggering the presumption of abandonment | Father was unemployed (no means), provided support when able (tax refund), sought reinstatement of visitation, and resumed supervised visits before adoption hearing | Reversed: presumption not established because Father lacked means to pay and had petitioned for and exercised visitation; record showed no settled purpose to relinquish parental duties |
| Whether Father’s unemployment and lack of income are "compelling circumstances" or show support was provided "within the means" of the parent | Contended inability to pay does not defeat statutory presumption of abandonment | Father’s unemployment deprived him of means; he gave tax refund and actively sought work—these are compelling circumstances and support within means | Held: Father had no means to pay, gave his tax refund toward support, sought work; unemployment constituted compelling circumstances and support within means |
| Whether family-court orders that curtailed visitation (and lacked formal findings) constitute prevention of visitation for purposes of § 48-22-306(a)(2) | Mother argued Father failed to visit/communicate during the relevant period | Father contended the family court prevented visits; orders contained no factual findings of unfitness and conditioned reinstatement on drug testing/employment; he sought reinstatement and later obtained supervised visits | Held: Family-court restrictions prevented visitation; orders lacked findings of fitness-related harm; prevention rebutted the abandonment presumption |
| Whether the evidence met the clear-and-convincing standard required to terminate parental rights by adoption | Adoption petitioners asserted statutory presumption and evidence supported termination | Father argued the record did not supply clear-and-convincing proof of abandonment or parental unfitness | Held: Clear-and-convincing standard not satisfied; statutory requirements were not strictly met, so termination/adoption could not be affirmed |
Key Cases Cited
- Burgess v. Porterfield, 196 W. Va. 178 (standard of review: abuse of discretion for final order; clearly erroneous for facts)
- Chrystal R.M. v. Charlie A.L., 194 W. Va. 138 (de novo review for statutory interpretation)
- In re Jeffries, 204 W. Va. 360 (statutory elements to overcome abandonment presumption — support within means; visitation/communication requirements)
- In re Willis, 157 W. Va. 225 (termination of parental rights requires clear, cogent, and convincing proof)
- Matter of Adoption of Schoffstall, 179 W. Va. 350 (failure to pay support alone does not automatically constitute abandonment)
- In re the Adoption of Jon L., 218 W. Va. 489 (adoptions are statutory and must comply strictly with statutory requirements)
- James M. v. Maynard, 185 W. Va. 648 (recommendation that reintroduction of visitation be gradual to reduce trauma to children)
- Ledsome v. Ledsome, 171 W. Va. 602 (a parent’s visitation right generally cannot be conditioned solely on payment of support except in extraordinary/contumacious circumstances)