                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: Adoption of S.S.                                                             FILED
                                                                                  June 15, 2015
No. 14-1103 (Mercer County 13-A-35)                                            RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father B.R., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s September 16, 2014, order granting respondents’ petition for adoption of the child,
S.S.1 Respondents D.L. and S.L., the child’s maternal aunt and uncle, by counsel Michael P.
Cooke, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, P. Michael Magann, filed a response on behalf of the child also in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1)
terminating his parental rights to the child and (2) granting the petition for adoption over his
objection.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In October of 2013, respondents filed a petition for adoption of the child. The petition
alleged that the child’s mother voluntarily consented to the relinquishment of her parental rights
and that petitioner abandoned the child. According to the petition, petitioner failed to exercise
any previously court-ordered supervised visitation, failed to provide any financial support, and
requested not to pay child support. The petition explained that the child and her mother had
resided primarily with respondents since March of 2011 when the child, who was born
prematurely, was released from the hospital.

        In November of 2013, following his guilty plea to one count of falsifying a consent form
to purchase a firearm in the Commonwealth of Virginia, petitioner was sentenced to three years
in prison, two years of which were suspended. In January of 2014, petitioner also pled guilty to
one count of discharging a firearm in an occupied building, for which he was sentenced to twelve
months in jail, which was suspended, and ordered to pay a $100 fine. Due to his incarceration,
the circuit court appointed petitioner a guardian ad litem in the adoption proceedings. In
February of 2014, petitioner’s guardian filed an answer denying the petition’s claims and
requesting that the circuit court deny and dismiss the petition.

       1
        The parties and juvenile in this case will be identified by initials pursuant to Rule 40 of
the Rules of Appellate Procedure.
                                                    1


         In May of 2014, the circuit court held a final hearing on the petition for adoption. Several
witnesses testified that petitioner last saw the child in 2011 when she was one-month old; that he
owed more than $700 in child support arrearages before his child support payments were set at
zero; and that he made little effort to attempt to visit the child.2 Further, petitioner admitted he
had not paid child support at any time, but he claimed that he attempted to arrange supervised
visitation by placing his name on a waiting list at the visitation center. However, he did not
follow through with those visits. He also admitted that he was incarcerated, but he explained that
he was to be released in September of 2014.3 The circuit court also heard evidence that a family
court previously determined by paternity testing that petitioner was the child’s father. At the
close of evidence, in addition to argument by petitioner and respondents, the child’s guardian
argued that the adoption was in the child’s best interests due to petitioner’s past behavior and
respondents’ good standing as the child’s caretakers. The circuit court agreed and granted the
petition for adoption.

       In September of 2014, the circuit court entered its order granting the petition for
adoption. The circuit court found that petitioner made poor life choices, and, based on the
evidence presented, had abandoned the child. This appeal followed.

       We previously have held that

               [i]n 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.

Syl. Pt. 1, In re Adoption of C.R., 233 W.Va. 385, 758 S.E.2d 589 (2014) (internal citations
omitted). We have also explained that “[w]here the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a statute, we apply a de novo standard
of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
Finally, “a reviewing court may not overturn a finding simply because it would have decided the
case differently, and it must affirm a finding if the circuit court’s account of the evidence is
plausible in light of the record viewed in its entirety.” Syl. Pt. 1, in part, In re: Ashton M., 228
W.Va. 584, 723 S.E.2d 409 (2012). With these standards in mind, we now turn to petitioner’s
assignments of error.

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
to the child and granting the petition for adoption over his objection.4 West Virginia Code § 48­
       2
        It appears from the record on appeal that petitioner’s child support obligation was set at
zero dollars due to his income.
       3
           Petitioner was subsequently released from incarceration at that time.
       4
        Although petitioner raises these issues in two assignments of error, he discusses them in
one argument. As we find that these issues are related, we address them together.
                                                      2


22-301 provides that consent to or relinquishment for adoption is generally required where, as
here, an outsider father has been adjudicated to be the father. However, that statute further
provides that consent to or relinquishment for adoption is not required where the court finds that
the child is abandoned. Pursuant to West Virginia Code § 48-22-306, a parent has presumed to
abandon his/her child when, for a period of six uninterrupted months immediately prior to the
petition’s filing, the parent fails to financially support the child and fails to visit or otherwise
communicate with the child.

        In the case at bar, the record on appeal clearly supports the circuit court’s finding that
petitioner abandoned this child. The circumstances present in this matter satisfy the presumption
of abandonment set forth in West Virginia Code § 48-22-306, and petitioner failed to overcome
that presumption. The evidence clearly indicates that petitioner failed to financially support the
child and failed to visit or otherwise communicate with the child after February of 2011.
Petitioner admitted that he failed to pay child support and failed to follow through with
supervised visitation with the child. We have explained that “in a contest involving the custody
of an infant the welfare of the child is the polar star by which the discretion of the court will be
guided.” In re Antonio R.A., 228 W.Va. 380, 388, 719 S.E.2d 850, 858 (2011) (internal citations
omitted). As stated by the child’s guardian, the respondents’ home is the only home the child has
ever known, and adoption is in the child’s best interests. Based on the record before us, we
cannot find reversible error in the circuit court’s ruling that petitioner abandoned the child and
that adoption was, and is, in the child’s best interests.

        For the foregoing reasons, the circuit court’s September 16, 2014, order granting the
petition for adoption of S.S. is hereby affirmed.

                                                                                         Affirmed.


ISSUED: June 15, 2015

CONCURRED IN BY:

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




                                                     3


