                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
                                                                                 May 23, 2016
In re: Adoption of J.B. and B.B.                                                 RORY L. PERRY II, CLERK

                                                                               SUPREME COURT OF APPEALS

                                                                                   OF WEST VIRGINIA

No. 15-0808 (Mercer County 14-A-50-DS)


                              MEMORANDUM DECISION
         Petitioner Father J.C., by counsel Andrea P. Powell, appeals the Circuit Court of Mercer
County’s July 22, 2015, order terminating his parental rights to the children, J.B. and B.B., and
approving their adoption by respondent stepfather.1 Respondents, the children’s biological
mother, J.B., and their stepfather, G.B., by counsel Robert E. Holroyd, filed a response in
support of the circuit court’s order. The guardian ad litem for the children, Harold B. Wolfe III,
filed a response also in support of the circuit court’s order. On appeal, petitioner alleges that the
circuit court erred in terminating his parental rights upon erroneous findings of fact, conclusions
of law, and a legally deficient home study; failing to dismiss the petition for lack of service; and
failing to act on an alleged conflict of interest.

        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 September of 2014, the children’s biological mother and stepfather, respondents
herein, filed a petition seeking to have the minor children, J.C. and B.C., legally adopted by
respondent stepfather. The petition alleged that petitioner abandoned the children. At the time of
the proceedings, petitioner was incarcerated. As such, he was appointed a guardian for these
proceedings. Additionally, the circuit court appointed a guardian for the children and directed
that he conduct a home study on respondents’ home. That document was filed with the circuit
court shortly thereafter.

         The following month, the circuit court held a hearing, during which respondent mother
testified that petitioner had last seen the children approximately two years prior, though he had
attempted to contact her to arrange shared parenting time with the children in the preceding six
months. She also testified that petitioner occasionally sent the children correspondence from

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
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prison, but that he had not sent any such correspondence within the prior year. During the
hearing, petitioner’s guardian moved to dismiss the petition as a matter of law. The circuit court
did not rule on this motion, however. Petitioner further alleged that in June of 2014, he filed a
petition for support and/or allocation of custodial responsibility in the family court based upon
allegations that respondent mother interfered with his access to and contact with the children.
After this hearing, the children’s guardian filed a supplemental report detailing respondent
stepfather’s prior history with Child Protective Services (“CPS”) and other criminal proceedings.
The guardian later filed a second supplemental report in regard to respondents. Despite this
history, the guardian ultimately recommended adoption by respondent stepfather because of the
bond between him and the children.

        In March of 2015, petitioner filed a renewed motion to dismiss the petition with multiple
exhibits that he alleged demonstrated attempts to visit the children. The circuit court held the
ruling in abeyance pending petitioner’s next parole hearing. In June of 2015, the psychologist
that evaluated respondent stepfather filed an updated evaluation after receiving the guardian’s
report regarding respondent stepfather’s history. Previously, the psychologist indicated that there
was not enough risk to prevent the adoption. However, upon review of the additional
information, the psychologist indicated that he had increased concerns regarding the adoption.
However, at the final hearing in this matter, the guardian indicated that he did not oppose
immediate adoption by respondent stepfather and further indicated that the psychologist who
evaluated respondent stepfather similarly did not oppose adoption. The circuit court ultimately
terminated petitioner’s parental rights and granted the petition for adoption by order entered on
July 22, 2015. It is from this order that petitioner appeals.

       The Court has previously established the following standard of review:

               “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 Petition of Carter, 220 W.Va. 33, 640 S.E.2d 96 (2006). Upon our review, the
Court finds no error in the circuit court terminating petitioner’s parental rights and approving the
adoption below.

        To begin, the Court finds no error in the circuit court’s finding that petitioner abandoned
the children at issue. Pursuant to West Virginia Code § 48-22-306(a)(1) and (2),

       [a]bandonment of a child over the age of six months shall be presumed when the
       birth parent . . . [f]ails to financially support the child within the means of the
       birth parent; and . . . [f]ails 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

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       care or custody of the child: Provided, [t]hat such failure to act continues
       uninterrupted for a period of six months immediately preceding the filing of the
       adoption petition.

On appeal, petitioner argues that the circuit court’s factual findings and conclusions of law were
clearly erroneous. Specifically, he argues that he submitted evidence that he financially
supported the children and sought to contact them in the six months preceding the petition’s
filing. According to petitioner, respondent mother even signed a receipt indicating that he
provided her $200 monthly to support the children. However, the circuit court did not find this
evidence compelling, as the mother specifically testified that she signed that document for
petitioner’s benefit, not to evidence monthly payments. Further, petitioner additionally testified
that he supported the mother and children when they lived with him, but he provided no evidence
to support this assertion. To the contrary, the mother testified that petitioner has never provided
financial support for the children. Indeed, petitioner further admitted that there were several
periods he was incarcerated during which he did not support the children. However, he argues
that his incarceration made support unreasonable as it was not within his means.

        This Court has previously held “that incarceration does not relieve a parent of the
obligation to pay child support . . . .” Adkins v. Adkins, 221 W.Va. 602, 605, 656 S.E.2d 47, 50.
Moreover, while it may be true that petitioner testified to previously providing a small amount of
support to the children, the mother also testified that she never received any money from
petitioner to support the children, including any monthly payment for $200. We have previously
held that “[a] reviewing court cannot assess witness credibility through a record. The trier of fact
is uniquely situated to make such determinations and this Court is not in a position to, and will
not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497
S.E.2d 531, 538 (1997). Ultimately, the circuit court did not find petitioner’s testimony regarding
past support credible, and we find no error on appeal.

        Additionally, petitioner does not contest the fact that he failed to visit or otherwise
communicate with the children in the six months preceding the petition below. However,
petitioner argues that he attempted to contact the children, but was prevented from doing so by
the mother and the fact that respondents moved and he was unaware of their new address. The
Court, however, does not find these arguments compelling. According to petitioner, he was
unable to send letters to the children while incarcerated because he did not have an accurate
address. However, this argument ignores the fact that for a portion of the six months preceding
the petition’s filing, petitioner was not incarcerated yet still failed to contact the children.
Additionally, despite having been aware of a potential adoption by respondent stepfather as early
as late 2014 or early 2015, petitioner failed to exercise his parental rights in an effort to prevent
the same. While it is true that petitioner eventually filed a petition for support and/or allocation
of custodial responsibility in June of 2014, the record is also clear that petitioner failed to appear
for a hearing on this petition in order to exercise his parental rights to the children. Based upon
this evidence, the circuit court found that “the assertion that any attempted contact by [petitioner]
with the children was thwarted by [respondent mother] lacked any merit.” Again, the circuit
court was the entity tasked with fact finding and, on appeal, this Court will not second guess
such determinations. While petitioner argues that the circuit court disregarded or failed to
consider certain evidence, the record is devoid of any support for this assertion. Simply put, the

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circuit court did not find petitioner’s evidence credible in light of the overwhelming evidence
that petitioner failed to visit or otherwise communicate with his children in the six months
preceding the petition’s filing. As such, we find no error in this regard.

        Petitioner also alleges that the circuit court’s ultimate disposition in this matter
constitutes an abuse of discretion because respondent stepfather is unfit to adopt the children.
The Court, however, does not agree. While it is true that the circuit court found the stepfather’s
history was “a cause for concern,” it went on to note that the “problematic issues essentially
ceased more than two years prior to the filing of the present adoption petition.” Moreover, the
circuit court found that “there have been no reports by any person that [respondents] had
experienced any sort of domestic discord and they appear to be in a stable, productive and
appropriate relationship.” Ultimately, the circuit court found that the stepfather “has had a
profound change in his living circumstances for the better or positive capacity” and “has
developed a substantial parental bond and relationship with the subjects of the adoption.” This
led the circuit court to “conclude that both children were well adjusted and thriving in all of their
environments.” As such, it is clear that the circuit court’s decision to allow respondent stepfather
to adopt the children was in keeping with this Court’s prior holdings. Specifically, we have
stated that “‘the best interests of the child is the polar star by which decisions must be made
which affect children.’ Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872
(1989) (citation omitted).” Kristopher O. v. Mazzone, 227 W.Va. 184, 192, 706 S.E.2d 381, 389
(2011). Because the circuit court clearly weighed the children’s best interests in reaching its
disposition in this matter, we find no error.

       Petitioner next argues that the circuit court erred in terminating his parental rights, in part,
upon a home study that failed to satisfy applicable legal requirements. Specifically, petitioner
cites West Virginia Code § 48-22-701(b)(1), (2), (3), (4), and (5), which state that

       [b]etween the time of the filing of the petition for adoption and the hearing
       thereon, the court or judge thereof shall . . . cause a discreet inquiry to be made to
       determine whether . . . the home of the petitioner or petitioners is a suitable home
       for such child . . . . The report shall include, but not be limited to, the following:
       (1) A description of the family members, including medical and employment
       histories; (2) A physical description of the home and surroundings; (3) A
       description of the adjustment of the child and family; (4) Personal references; and
       (5) Other information deemed necessary by the court, which may include a
       criminal background investigation.

According to petitioner, the home study submitted below failed to meet these requirements.
Specifically, petitioner argues that the home study for respondent stepfather did not include an
employment history, a criminal background check, or personal references. As such, petitioner
argues that it was error to terminate his parental rights upon a legally defective home study.
Upon our review, however, the Court does not agree.

       While petitioner argues that the home study itself lacked personal references, he admits
that during the course of the proceedings below, the guardian for the children spoke with
respondent stepfather’s ex-wives. Although the results of these discussions were not contained

                                                  4


within the initial home study, it is clear that the guardian submitted this information to the circuit
court in two supplemental reports, and the same were considered below. Further, petitioner
provides no argument as to why respondent stepfather’s ex-wives do not constitute personal
references for purposes of this code section. Additionally, petitioner’s arguments regarding the
lack of an employment history and criminal background check for respondent stepfather
similarly lack merit. Petitioner himself cites to numerous issues with respondent stepfather’s
prior employment and his past criminal history that were uncovered during the proceedings
below. Again, while not addressed in the initial home study, these issues were fully raised in two
supplemental reports from the guardian. The fact that petitioner is even aware of these issues on
appeal is evidence that they were submitted to the circuit court for consideration. As such, the
Court finds no merit to petitioner’s argument that the home study below was legally deficient, as
the guardian supplemented the home study with additional reports as information became
available.

        Petitioner additionally argues that the circuit court erred in denying his request to cross-
examine the guardian in regard to the home study at issue. According to petitioner, pursuant to
both Rule 47(d) of the Rules of Practice and Procedure for Family Court and West Virginia Code
§ 48-9-302(e), he was entitled to such cross-examination. Petitioner’s argument, however,
mischaracterizes the circuit court’s ruling in regard to questioning the guardian and ignores the
fact that he waived this issue for appeal. Specifically, when petitioner requested to call the
guardian as a witness, the circuit court stated that “I don’t put people who do home studies . . .
under oath,” but then went on to state that petitioner was free to ask the guardian any questions
he chose. At this point, petitioner’s guardian specifically stated that she had “one question” for
the children’s guardian. Petitioner’s guardian was permitted to inquire of the guardian about the
apparent inconsistency in respondent stepfather’s admitted criminal history and the report’s
indication that he did not have a criminal history. After the guardian answered the question,
petitioner’s guardian clearly stated “[t]hat’s all, Your Honor.” Upon our review of the record, it
is clear that petitioner was permitted to question the guardian regarding the home study. On
appeal, petitioner asserts that he would have asked the guardian numerous other question
regarding his history with the home study process and statements made by the subject children,
among other issues, but the record contradicts this assertion. As such, we find no error.

        Next, petitioner argues that he was not properly served below and, as such, the circuit
court should have dismissed the petition against him. The Court, however, finds no merit to this
argument. This is especially true in light of the fact that petitioner participated in the proceedings
below and was appointed a guardian throughout. The record here is clear that the circuit court
ordered petitioner be served by publication, and that the circuit clerk prepared a notice of
publication. Petitioner, however, argues that the circuit court file does not contain an affidavit
from the publisher, as required by law. According to West Virginia Code § 59-3-4(b), “[t]he
affidavit of the publisher or proprietor of a qualified newspaper required by this section, together
with a copy of the legal advertisement as published, constitutes prima facie evidence that the
legal advertisement was published or published and posted as stated in the affidavit.” In this
case, however, such evidence is unnecessary given petitioner’s actual notice of the proceedings.
As noted above, petitioner was represented and participated in all stages of the proceedings
below. For this reason, we find no error in regard to petitioner’s claim that service was deficient.



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        Finally, the Court finds no error in regard to petitioner’s allegation that the judge below
had a conflict of interest and should have been recused. Petitioner cites to a small portion of a
transcript wherein respondent mother told the circuit court that she went to high school with the
judge’s son. On appeal, petitioner admits that “[i]t is questionable whether the [j]udge should
have recused himself” upon this information. Upon our review, we find no error, and further note
that petitioner did not raise this issue below. We have long held that “‘[o]ur general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer
v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).”
Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 22, 2015, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: May 23, 2016


CONCURRED IN BY:

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




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