                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                FILED
                                                                              October 1, 2013
In Re: The Adoption of D.T.                                               RORY L. PERRY II, CLERK

                                                                        SUPREME COURT OF APPEALS

                                                                            OF WEST VIRGINIA

No. 12-1512 (Mercer County No. 12-A-2)


                                MEMORANDUM DECISION

        Petitioner C.T. Jr., by counsel Michael P. Cooke, appeals an October 19, 2012 order of
the Circuit Court of Mercer County, which allowed Respondent M.W. to adopt petitioner’s
natural child, D.T. Respondent, by counsel P. Michael Magann, filed a response in favor of the
adoption.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Child D.T. was born to petitioner and the child’s mother, A.W, in February of 2007.
Shortly after the child’s birth, the parents separated. A.W. then met respondent, and the two
began a relationship. In July of 2010, they married. During this three-and-a-half year period,
petitioner was incarcerated for all but six months. Petitioner was then released late in 2010, but
was re-incarcerated one month later after pleading guilty to manslaughter. Petitioner remains
incarcerated for this conviction and was in prison when respondent filed his petition for adoption
in January of 2012. Following an evidentiary hearing, the circuit court found that (1) petitioner
had abandoned D.T. and (2) D.T.’s best interests would be served through adoption by
respondent. Consequently, the circuit court granted respondent’s petition for adoption.
Petitioner’s appeal followed.

       We bear in mind the following:

       “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).




                                                1
       Petitioner raises two assignments of error. He first argues that the circuit court erred in
terminating his parental rights, due to his alleged abandonment of D.T., when it granted
respondent’s petition for adoption. Petitioner asserts that he did not abandon D.T. merely
because his child support was set at zero dollars. Petitioner further argues that his attempts to
communicate with the child were unsuccessful because he did not know the child’s phone
number and also asserts that correspondence sent through air mail was returned to him.

        Upon our review of the parties’ briefs and the appendix submitted on appeal, we find no
error or abuse of discretion by the circuit court in granting respondent’s petition to adopt D.T. To
determine abandonment as a part of adoption proceedings, West Virginia Code § 48-22-306,
provides, in 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.

Moreover, West Virginia Code § 48-22-102 defines abandonment as “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.”
The adoption hearing transcript provides that A.W. testified that petitioner has not paid child
support since 2010, when he petitioned the family court to modify his child support payments to
zero dollars per month. Although this petition was granted, petitioner was then, and currently is,
in arrears with the payments he was ordered to make prior to this reduction. With regard to
communication between petitioner and the child, A.W. testified that petitioner sent the child a
birthday card on her first birthday, but has not sent any cards since. From this evidence, we
cannot say the circuit court erred.

       After an adoptive parent has demonstrated presumption of abandonment, the biological
parent has the opportunity to rebut this presumption. Subsection (d) of West Virginia Code § 48­
22-306 provides:

       (d) 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: Provided, That in no event may incarceration provide such
       a compelling circumstance if the crime resulting in the incarceration involved a rape in
       which the child was conceived.




                                                 2
         We do not find petitioner’s incarceration and reduction in child support as circumstances
compelling enough to rebut the presumption of abandonment under the facts of this case. A
review of the record indicates that even during periods when petitioner was not incarcerated, he
was not diligent with making child support payments. Nor do we find that petitioner has rebutted
the presumption that he had compelling circumstances, which prevented him from
communicating with his child during the six months prior to respondent’s petition for adoption.
Contrary to A.W.’s testimony, petitioner testified that he sent D.T. a birthday and Christmas card
every year, not just in 2008 for the child’s first birthday. However, petitioner has not produced
any evidence to support this assertion, nor did he show that he has communicated, or attempted
to communicate, with the child in other ways. Petitioner admitted at the hearing that he has not
seen D.T. since 2007 and that he has never petitioned for visitation or parenting time with her.
Our review of the record also supports the circuit court’s findings that adoption is in D.T.’s best
interests as she has bonded with respondent and respondent has fulfilled her emotional and
financial needs since D.T. was an infant. Accordingly, we find that the circuit court did not abuse
its discretion in granting respondent his petition for adoption.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 1, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                3
