          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2013 Term
                                                                  FILED

                                                               April 18, 2013

                                                               released at 3:00 p.m.
                                   No. 11-1492                 RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




                        JOSHUA D.R. AND SHERRIE L.R.,

                           Petitioners Below, Petitioners


                                          v.


                                 DAVID A.M.,

                          Respondent Below, Respondent




                  Appeal from the Circuit Court of Marion County

                    Honorable Larry V. Starcher, Special Judge

                            Civil Action No. 11-A-13


                         REVERSED AND REMANDED



                            Submitted: March 26, 2013

                              Filed: April 18, 2013



Amber Urtso Sellaro, Esq.                           J. Douglas Crane, Esq.
Sal Sellaro Culpepper Legal Group, PLLC             J. Douglas Crane, L.C.
Morgantown, West Virginia                           Morgantown, West Virginia
Attorney for Petitioners                            Attorney for Respondent



The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


              1. “‘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).



              2. “The standard of proof required to support a court order limiting or

terminating parental rights to custody of minor children is clear, cogent and convincing

proof.” Syl. Pt. 6, In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).



              3. “‘In the law concerning custody of minor children, no rule is more firmly

established than that the right of a natural parent to the custody of his or her infant child is

paramount to that of any other person; it is a fundamental personal liberty protected and

guaranteed by the Due Process Clauses of the West Virginia and United States

Constitutions.’ Syllabus Point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).” Syl.

Pt. 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).




                                               i
              4. “Although parents have substantial rights that must be protected, the

primary goal . . . in all family law matters, must be the health and welfare of the children.”

Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).



              5. “‘A parent has the natural right to the custody of his or her infant child and

unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment

or other dereliction of duty, or has waived such right, or by agreement or otherwise has

permanently transferred, relinquished or surrendered such custody, the right of the parent to

the custody of his or her infant child will be recognized and enforced by the courts.’

Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969).” Syl. Pt.

1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009).



              6. “‘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) [1997] requires the

parent to financially support the child, within the means of the parent. Furthermore, W.Va.

Code § 48–4–3c(a)(2) [1997] 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


                                              ii
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.’ Syllabus Point 2, In re Jeffries,


204 W.Va. 360, 512 S.E.2d 873 (1998).” Syl. Pt. 3, In re Carey L.B., 227 W.Va. 267, 708


S.E.2d 461 (2009).





                                             iii

Per Curiam:

              This is an appeal from an order of the Circuit Court of Marion County entered

September 2, 2011, denying the petition for adoption filed by Joshua D.R. and his wife,

Sherrie L.R. wherein Joshua sought to adopt the minor child of Sherrie and her former

husband. On appeal, the petitioners argue that the circuit court committed error. Based upon

the record, the parties’ briefs and the arguments presented, this Court finds that the circuit

court erred and abused its discretion in finding that the biological father had not abandoned

the child and in denying the adoption.



                         I. Factual and Procedural Background

              The petitioner, Sherrie L.R. (“the petitioner mother”), and the respondent,

David A.M., were married on August 29, 1998. They had one child together, a son, C.M.,

who was born on October 12, 2000. The parties separated on December 5, 2005, following

allegations of domestic violence by the petitioner mother. In January of 2006, upon the

referral of C.M.’s pediatrician, the petitioner mother began taking C.M. to see Jeff Collins,

a licensed psychologist, for weekly counseling sessions to address C.M.’s emotional and

behavioral problems, including his violent and aggressive behaviors toward the petitioner

mother.




                                              1

                 The petitioner mother subsequently filed for divorce and, in an order entered

on February 27, 2007, the divorce was granted, in part, on the basis of “cruel or inhuman

treatment.” Through its order, the family court imposed a fifteen-year injunction against the

respondent from molesting or interfering with the petitioner mother, including refraining

from contacting her, either in person or by telephone, for “the purpose of harassment or

threats[.]”1 Also, in this divorce order, the petitioner mother was granted primary custody of

the child and the respondent was granted supervised visitation “[b]ased upon the testimony

of the parties and the child’s counselor, Mr. Jeff Collins[.]” Because C.M. had been

receiving counseling from Mr. Collins for approximately one year at the time of the final

divorce hearing, the family court ordered that the respondent’s supervised visitation take

place in Mr. Collins’s office, “as Mr. Collins shall deem advisable.”



                 On June 15, 2011, the petitioner mother and her husband, petitioner Joshua

D.R. (“the petitioner stepfather”),2 filed a verified petition for adoption in the Circuit Court

of Marion County in which the petitioner stepfather sought to adopt C.M. In their petition,

they allege that the respondent had neither financially supported nor engaged in any contact

with C.M. during the six months preceding the filing of the petition for adoption, although


       1
       The family court concluded that the lengthy injunction was justified “by the repeated
[domestic violence] charges and two (2) convictions of [the respondent] for violations of
domestic violence protective orders since the initiation of this [divorce] action.”
       2
           The petitioners were married on July 10, 2010.

                                               2

he was physically and financially able and had not been prevented from doing so. On or

about August 4, 2011, the respondent filed a verified response and objection to the adoption

alleging that he was current with his child support payments and that his efforts to maintain

contact with his son had been “hindered by persistent interference from the child’s mother.”



              On August 15, 2011, a hearing was held before the circuit court on the adoption

petition. Mr. Collins, the licensed psychologist who supervised the visitation between the

respondent and C.M., testified that in January 2009, he received a telephone message from

the respondent that he was “[n]ot going to be able to make it back anymore [for supervised

visitation with C.M.]” and that he was going to “petition the Court about that matter.”

Indeed, thereafter, no further visitation between the respondent and C.M. occurred at Mr.

Collins’s office. And, although the respondent advised Mr. Collins that he was going to

“petition the Court” about visitation, he never did.



              The record contains two letters from Mr. Collins to the family court dated June

9, 2008, and April 23, 2009, respectively, each reporting on the status of both the counseling

of C.M. and the supervised visitation between C.M. and the respondent. In the June 9, 2008,

letter, Mr. Collins recommended that the respondent: (1) undergo a psychological evaluation

to assess the threat of violence and his overall level of functioning; (2) undergo a substance

abuse evaluation to address and/or rule out substance abuse issues; and (3) engage in


                                              3

individual therapy to aid him in his role as a parent and with his ability to cope with ongoing

stressors. Also, in this June 9, 2008, letter, Mr. Collins reported, in part, as follows:

                      I am aware of the current allegations that have surfaced
              which include [the respondent] abusing drugs, acquiring a
              weapon and threatening to shoot [the petitioner mother] in the
              face. I am aware that . . . because of the circumstances that
              occurred when she received this information, [C.M.] is also
              aware of this threat. At this time, [C.M.] is very frightened and
              terrified that his mother will be harmed by his father. [C.M.]
              has voiced these concerns in other sessions as well. . . .

                     One of the main concerns regarding [the respondent] is
              the issue of stability.

                                             • • •

                      In closing, . . . [t]here are many serious issues which need
              to be addressed which include . . . the threat of physical violence
              to [the petitioner mother], [C.M.]’s emotional trauma regarding
              this alleged threat and the allegation of substance abuse. . . .



              Mr. Collins’s April 23, 2009, letter, which appears to be his final report to the

family court, indicates that although the respondent had continued to request unsupervised

visitation with his son, Mr. Collins did not recommend such visitation because of his

“concerns regarding [the respondent father’s] stability” and because the respondent was

unable to complete a list of expectations that he had given to him.3 Mr. Collins further




       3
        The list of recommendations to which Mr. Collins refers is set forth in the June 9,
2008, letter to the family court.

                                               4

reported that his biggest concern regarding visitation was the respondent’s instability, which

caused C.M.’s level of functioning to decrease.



              Mr. Collins testified that between January 2007, when the supervised visitation

began, and January 2009, when the respondent reported that he would not be returning for

supervised visitation, the respondent appeared for only thirteen supervised visitations with

his son. The respondent’s last visitation with C.M. at Mr. Collins’s office was on September

22, 2008.4 Mr. Collins expressed his belief that C.M.’s uncertainty as to whether his father

was going to appear for visitation led to C.M. feeling “rejected or abandoned,” which led to

C.M. “feeling sad and ultimately feeling angry as well.” Mr. Collins further testified that he

saw C.M. approximately one week prior to the adoption hearing at which time C.M. told him

that he hoped that the adoption would occur and that he is fearful of his father and does not

feel comfortable being alone with him.



              Also testifying at the adoption hearing was the respondent, who indicated that

he was current on his child support.5 He further testified that while he loves his son, he had




       4
      The petitioner mother testified that she thought the last supervised visit was in
December of 2008. See infra note 16.
       5
       Approximately one week prior to the adoption hearing, the respondent paid his child
support arrearage in the amount of $2,326.

                                              5

become frustrated with trying to see him because the protective order6 prevents him from

telephoning the petitioner mother or going to her home,7 and that he was essentially tired or

frustrated with the supervised visitations in Mr. Collins’s office. Although the respondent

testified that the petitioner mother thwarted his attempts to contact C.M. by telephone, Mr.

Collins reported in both his letter to the family court dated April 23, 2009, and in his

testimony at the adoption hearing, that both he and the petitioner mother had difficulty in

getting C.M. to speak with the respondent by telephone.



              At the adoption hearing, the respondent also testified that he loves C.M. and

that he never wanted to stop seeing him. However, he admitted that he had not seen him for

“three-and-a-half, four years.” The respondent further testified that since his divorce from

the petitioner mother in 2007, he often sent birthday, Christmas, and Valentine’s Day cards

and gifts to C.M.8 He also testified that he mailed a gift card to C.M. for Christmas in 2010,

but that it was returned to him in the mail. Aside from the respondent’s representation in this




       6
       The respondent father was referring to the fifteen-year injunction imposed against
him by the family court in the final divorce order. See supra note 1.
       7
        The injunction imposed against the respondent in the final divorce decree only
prohibits him from contacting the petitioner mother, either in person or by telephone, for the
purpose of harassing or threatening her. It does not appear to prohibit contact for other
purposes. See supra note 1.
       8
        The respondent testified that he might have missed two Valentine’s Days, maybe a
birthday, but he does not think that he missed any Christmases.

                                              6

regard, he failed to present any evidence that he sent a gift card and that it was returned to

him.



              During the petitioner mother’s testimony at the adoption hearing, she stated that

she never saw a gift card from the respondent for C.M. for Christmas 2010, but, if she had

received it, she would not have returned it to him.9 The petitioner mother acknowledged that

the respondent had occasionally sent cards and gifts to their son since their divorce and that

she had always given those gifts and cards to him, if they were appropriate.10 The petitioner

mother explained that on one occasion, the respondent sent a package to C.M. with “his

wallet and belongings in it with a suicide letter[.]” When asked to explain what C.M.’s

current thoughts or opinions were concerning his father, the petitioner mother testified that

C.M. is “scared of his dad from our past living together and things that have happened[.]”11




       9
        The petitioner mother also testified that she did not know the respondent’s address
to mail a gift card back to him and, in fact, she had to obtain his address through his
probation officer for the purpose of serving him with the petition for adoption.
       10
        The petitioner mother testified that even if she did not physically give an
inappropriate card to C.M. from the respondent, she would still tell him that his father had
sent him a card.
       11
         The petitioner mother also testified that she “still [has] a relationship with [her]
stepchildren, who are “all grown” and that on May 30, 2011, her stepson told her in front of
C.M. that the respondent had “grabbed him by the throat for the last time and threw beer
bottles at his head,” which caused C.M. to fear his father even more.

                                              7

              C.M.’s guardian ad litem (“guardian”) filed an answer in the circuit court in

which she reported that C.M. had infrequent contact with his biological father and had not

seen him in “quite a long time.” The guardian further reported that C.M. wants very much

to be adopted by his stepfather, whom she describes as a “very positive role model” for C.M.

The guardian expressed her opinion that the respondent’s parental rights should be

terminated and that C.M. should be adopted by the petitioner stepfather because,

              [f]or all intents and purposes, [the respondent] has abandoned
              [C.M.] and does not exercise his parental rights. I[t] is clearly
              not in the infant’s best interest to allow [the respondent] to
              remain as the infant’s legal parent. [C.M.] deserves to have an
              interested and loving father, and that person would be [the
              petitioner stepfather].



              On September 2, 2011, the circuit court entered an order denying the adoption

petition on the grounds that the respondent was current on his child support payments12 and

had made “minimum contact” with the child, including gifts for his birthday, Christmas and

Valentine’s Day, such that the court could not find abandonment.




       12
         As indicated above, the respondent paid his child support arrearage approximately
one week prior to the adoption hearing. Prior to that payment, the record reflects that the last
child support payment made by the respondent was December 7, 2010, which appears to have
been an automatic withholding made by the Bureau for Child Support Enforcement.

                                               8

                                  II. Standard of Review

              We are asked to review a circuit court’s order entered upon a petition for

adoption. Our standard of review in this regard is well established:

                      “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).



                                       III. Discussion

              In this appeal, we are asked to determine whether the circuit court abused its

discretion by determining that the respondent had not abandoned C.M. and by denying the

petition for adoption filed by the petitioners. The petitioners assert that this matter is

governed by West Virginia Code § 48-22-306(a) (2009), which sets forth a presumption of

abandonment where there is no financial support of the child and no visitation or contact with

the child during the six months immediately preceding the filing of the petition for adoption.

The petitioners argue that the evidence demonstrated that, during the six-month period

immediately preceding the filing of their petition for adoption on June 15, 2011, the

respondent failed to financially support C.M. and failed to visit or communicate with him.

The petitioners argue that the circuit court failed to apply this statutory six-month period to

                                              9

its analysis of whether the respondent had abandoned C.M. See W. Va. Code § 48-22­

306(a). The petitioners also argue that although the circuit court appointed a guardian ad

litem for C.M., it did not fully consider the guardian’s opinion that the adoption should be

granted nor did it refer to the guardian’s opinion in its order.



              In his summary response to this Court, the respondent asserts that the circuit

court correctly denied the petition for adoption because the mere nonpayment of child

support is not enough to invoke the statutory presumption of abandonment. The respondent

argues that as of the hearing on the petition for adoption, he was no longer in arrears on his

child support, therefore, the petitioners could not show that he was not financially supporting

his child. The respondent adds that he mailed a gift card to C.M. for Christmas of 2010, but

that it was returned to him in the mail, presumably, he argues, by the petitioner mother. He

also asserts that the circuit court acknowledged that the guardian was present for the adoption

hearing and that it had received her answer that was filed with the court.



              In determining whether the circuit court abused its discretion in denying the

petition for adoption, we must first consider whether the petitioners presented sufficient

evidence below to invoke the statutory presumption of abandonment set forth in West

Virginia Code § 48-22-306(a) and, if so, whether the respondent presented sufficient

evidence to rebut that presumption. In this regard, we note that “[t]he standard of proof


                                              10

required to support a court order limiting or terminating parental rights to custody of minor

children is clear, cogent and convincing proof.” Syl. Pt. 6, In Re Willis, 157 W.Va. 225, 207

S.E.2d 129 (1973).



              We begin our analysis with the premise that a biological parent has a right to

custody of his or her child. As we have previously explained,

              “[i]n the law concerning custody of minor children, no rule is
              more firmly established than that the right of a natural parent to
              the custody of his or her infant child is paramount to that of any
              other person; it is a fundamental personal liberty protected and
              guaranteed by the Due Process Clauses of the West Virginia and
              United States Constitutions.” Syllabus Point 1, In re Willis, 157
              W.Va. 225, 207 S.E.2d 129 (1973).

Syl. Pt. 2, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003). However,

the right of a natural parent to the custody of his or her infant child must also be balanced

against the welfare of the child. “Although parents have substantial rights that must be

protected, the primary goal . . . in all family law matters, must be the health and welfare of

the children.” Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

Indeed,

              “[a] parent has the natural right to the custody of his or her
              infant child and unless the parent is an unfit person because of
              misconduct, neglect, immorality, abandonment or other
              dereliction of duty, or has waived such right, or by agreement or
              otherwise has permanently transferred, relinquished or
              surrendered such custody, the right of the parent to the custody
              of his or her infant child will be recognized and enforced by the


                                             11

              courts.” Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va.
              404, 168 S.E.2d 798 (1969).

Syl. Pt. 1, In re Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (2009) (emphasis added).



              In the case sub judice, the petitioners maintain that the respondent has

abandoned C.M. The Legislature has defined “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 claims to the child.”

W.Va. Code § 48-22-102 (2009). Similarly, in Carey L.B., we stated that “[t]his 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 Schoffstall, 179 W.Va. 350, 352, 368 S.E.2d 720, 722 (1988) (citations

omitted).” Carey L.B., 227 W.Va. at 274, 708 S.E.2d at 468. Further, as referenced above,

there is a statutory presumption of abandonment of a child over the age of six months under

West Virginia Code § 48-22-306, which provides, in pertinent part, as follows:

              (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

                                              12

              uninterrupted for a period of six months immediately preceding
              the filing of the adoption petition.

                                            • • •

              (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[.]

These statutory provisions have been echoed and applied in prior decisions of this Court:

                      “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) [1997] requires the parent to
              financially support the child, within the means of the parent.
              Furthermore, W.Va. Code § 48–4–3c(a)(2) [1997] 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.”
              Syllabus Point 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873
              (1998).13

Syl. Pt. 3, Carey L.B., 227 W.Va. 267, 708 S.E.2d 461 (footnote added). With these

principles in mind, we turn to the evidence in the case at bar.




       13
         In 2001, the Legislature recodified and renumbered the domestic relations statutes
such that West Virginia Code § 48-4-3c, as cited Carey L.B., is currently West Virginia Code
§ 48-22-306.

                                             13

                 The record reflects that the petitioners demonstrated through clear, convincing,

and cogent evidence that the respondent had not provided child support for his son during

the six months preceding the filing of the petition for adoption. In fact, as previously noted,

it was not until one week prior to the adoption hearing that the respondent made a payment

in the amount of $2,326 to the Bureau for Child Support Enforcement, which covered his

child support arrearage. Given that the child support obligation was established at $101 per

month, we observe that the respondent’s arrearage appears to have been greatly in excess of

six months. Moreover, the payment of the arrearage nearly two months after the petition for

adoption was filed does not meet the relevant inquiry as established by the Legislature, which

is whether the respondent provided financial support during the six months immediately

preceding the filing of the petition for adoption.14 Because the respondent did not financially

support his son during the applicable six-month time period, the petitioners have satisfied the

first of the two statutory requirements for abandonment. W.Va. Code § 48-22-306(a)(1).



                 We now consider the second statutory factor for abandonment of a child by a

parent: the failure to “visit or otherwise communicate with the child.” W.Va. Code § 48-22­

306(a)(2). The respondent testified at the adoption hearing that he had not seen his son C.M.

in three and a half to four years. According to Mr. Collins’s testimony, supervised visitation

between the respondent and C.M. began in January 2007, and the last supervised visitation


       14
            See supra West Virginia Code § 48-22-306(a).

                                                14

occurred on September 22, 2008.15 He further testified that during this time frame, the

respondent appeared for visitation with his son only thirteen times, which led to C.M. feeling

“rejected or abandoned.” Mr. Collins also testified that in January 2009, the respondent

advised him that he would not be returning for any further supervised visitation and that he

was going to petition the court about visitation. It is undisputed that the respondent never

sought to modify the terms of his visitation with his son.



               It is clear from the record and the argument before this Court that the

respondent resides in the same general vicinity as his son and that he was neither physically

nor financially prevented from seeing him. The respondent’s testimony that the petitioner

mother somehow hindered his visitation efforts is inconsistent with the uncontroverted

evidence that he voluntarily chose to terminate supervised visitation. Thereafter, his only

contact with C.M. was an occasional card or gift.16 Regrettably, and as indicated previously,

       15
        The petitioner mother testified at this hearing that she thought the last supervised
visit was around Christmas of 2008. Whether September or December of 2008, the
respondent’s last physical interaction with C.M. occurred well outside the statutory six-month
period for purposes of determining abandonment by a parent. See W.Va. Code § 48-22­
306(a).
       16
          We are mindful of an earlier decision of this Court wherein the abandonment of a
child is described as where the parent “does not visit the children, and does not in any other
reasonable way, given his position in life and the opportunities for the exercise of his parental
rights, exercise the authority or undertake the responsibilities of a parent . . . .” In re Harris,
160 W.Va. 422, 428, 236 S.E.2d 426, 430 (1977). While In re Harris involved a divorced
mother’s request to change the surname of her child where the child’s father was still living,
our description of abandonment therein seemingly contemplates that parenting requires more
                                                                                     (continued...)

                                                15

even those limited communications were, at times, inappropriate, such as the package

containing a suicide letter that the respondent sent to C.M. Nonetheless, the respondent cites

Carey L.B. for his argument that his occasional gifts and cards demonstrate that he did not

abandon his son. In Carey L.B., we stated that:

              [o]n 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 . . . 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.

Carey L.B., 227 W.Va. at 267, 708 S.E.2d at 470. (Emphasis added). In the case at bar,

looking “most importantly” to the six months prior to the filing of the adoption petition, the

only contact the respondent arguably had with C.M. was the respondent’s testimony that he

allegedly mailed a gift card to C.M. for Christmas in 2010. Id. The respondent’s

representation that the petitioner mother mailed the gift card back to him is not corroborated

by any evidence of record. Moreover, the petitioner mother testified that she neither saw nor

returned a gift card.



              Based on the foregoing, we conclude that clear, cogent, and convincing

evidence exists in the record that the respondent has failed to financially support, visit or



       16
        (...continued)
than an occasional card or gift.

                                               16

otherwise communicate with C.M. for a continuous six-month period preceding the filing of

the adoption petition, although he knew where his son lived, was not physically or financially

prevented from seeing his son, and was not prevented from doing so by the petitioner mother.

See Syl. Pt. 3, Carey L.B., 227 W.Va. 267, 708 S.E.2d 461. Thus, under West Virginia Code

§ 48-22-306, abandonment is presumed and the burden shifted to the respondent to rebut that

presumption by demonstrating the existence of “compelling circumstances preventing said

parent from supporting, visiting or otherwise communicating with the child[.]” W.Va. Code

§ 48-22-306(d).



              We further find that the respondent failed to rebut the presumption of

abandonment. His payment of his child support arrearage after the petition for adoption was

filed in no way proves that he provided financial support for C.M. during the six months

preceding the filing of the petition for adoption. To the contrary, it proves otherwise.

Further, his allegation that he mailed a gift card to C.M. for Christmas 2010 was wholly

insufficient to overcome the presumption of abandonment, particularly given his voluntary

termination of the supervised visitation with his son. Accordingly, we find that the circuit

court abused its discretion in its ultimate disposition finding that the respondent had not

abandoned C.M.




                                             17

                 Because we find from the record that it is in the best interest of C.M. to be

adopted by Joshua, his stepfather,17 we remand this case to the circuit court for prompt

resolution through the entry of an order granting the petition for adoption pursuant to West

Virginia Code § 48-22-701(d).18



                                         IV. Conclusion

                 For the reasons set forth herein, the circuit court’s September 2, 2011, order

is reversed and this action is remanded to the circuit court for further proceedings consistent

with this opinion.

                                                     Reversed and Remanded With Directions.




       17
         West Virginia Code § 48-22-701(a) (2009) provides, in part, that the court shall
decree the adoption if “(4) . . . it is in the best interests of the child to order such adoption.”
We conclude that the adoption is in the best interest of C.M. based on the evidence in the
record.
       18
            In this regard, we note that West Virginia Code § 48-22-701(d) provides, in part, as
follows:

       [T]he court or judge thereof shall make an order reciting the facts proved and
       the name by which the child shall thereafter be known, and declaring and
       adjudging that from the date of such order, the rights, duties, privileges and
       relations, theretofore existing between the child and those persons previously
       entitled to parental rights, shall be in all respects at an end . . . .


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