                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                     FILED
In Re: The Adoption of K.C
                                                                                   May 18, 2015
                                                                                RORY L. PERRY II, CLERK
No. 14-0285 (Roane County 13-A-17)                                            SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner father, by counsel Ryan M. Ruth, appeals the Circuit Court of Roane County’s
February 10, 2014, order granting respondent great-grandparents the adoption of minor child,
K.C. Respondent great-grandparents, by counsel H. Beth Sears, filed a response. The guardian ad
litem, Anita Harold Ashley, filed a response on behalf of the child in support of the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in determining that his
incarceration was not a compelling circumstance preventing him from supporting, visiting, or
otherwise communicating with the child.

       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.

        In December of 2013, Respondent great-grandparents filed a petition for adoption of the
minor child, K.C., born on August 4, 2008. Respondent great-grandparents have had sole
custody of the minor child since his release from the hospital at birth and continuing for an
uninterrupted period of over five years. The birth parents were both incarcerated at the time of
the child’s birth. Petitioner objected to the proposed adoption in a letter to the circuit court,
alleging that he sent the child cards and birthday money, during the time he was incarcerated.

        In February of 2014, the circuit court held a final adoption hearing. Because both
petitioner and the birth mother were incarcerated at the time of the final hearing, they were
appointed guardians ad litem to represent them prior to the hearing. The circuit court also
appointed a guardian for the minor child. Respondent great-grandparents contended at the final
hearing that the birth parents’ consent to the adoption was not required because both petitioner
and the birth mother abandoned the child and that no compelling circumstances existed to excuse
the abandonment. The child’s guardian supported respondent great-grandparents’ adoption
petition and agreed that they provided the child with a safe, stable home and that the bond
between the child and respondent great-grandparents was strong. The child’s guardian
recommended that the circuit court formalize the relationship between the child and respondent
great-grandparents. The circuit court determined that all the statutory provisions were met, that
the adoption was in the best interest of the child, and, finally, ordered the adoption. It is from this
order that petitioner appeals.

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        Petitioner’s sole assignment of error on appeal is that the circuit court should have
determined that his incarceration was a compelling circumstance preventing him from
supporting, visiting, or otherwise communicating with the child. “This Court reviews the circuit
court’s final order and ultimate disposition under an abuse of discretion standard. We review
challenges to findings of fact under a clearly erroneous standard; conclusions of law are
reviewed de novo.” Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114
(1996).” In re Carey L.B., 227 W.Va. 267, 273, 708 S.E.2d 461, 467 (2009). “[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). Upon our review, we find no error in the circuit court’s findings or the ultimate
disposition in ordering the adoption, especially in light of the child’s best interests.

        Pursuant to West Virginia Code § 48-22-306, a birth parent has abandoned his/her child
when the birth parent fails to financially support the child and fails to visit or otherwise
communicate with the child. In support of his assignment of error, petitioner argues that he did
not abandon the child inasmuch as he (1) sent money to the child’s grandmother, (2) sent money
to the child’s biological mother when she was not incarcerated, (3) begged the respondents and
their family to bring the child to see him, (4) sent the child cards every couple of weeks, and (5)
sent the child birthday money. However, during the proceedings below, the only evidence
petitioner presented was a letter submitted to the circuit court disputing the claims of
abandonment and claiming that he sent money and cards to the child. The record shows that
petitioner submitted this letter without any other supporting documentation or evidence.
Respondent great-grandparents argue that the evidence of abandonment was unchallenged,
except for this letter. We agree, as the circuit court specifically found the petitioner did not send
any “financial support, cards, gifts, letters, or other communication.” Respondent great-
grandparents thus met their burden in proving that the child was abandoned by petitioner.

        The burden then shifted to petitioner to show circumstances compelling the
abandonment. Petitioner contends that his incarceration should constitute compelling
circumstances preventing him from supporting, visiting, or otherwise communicating with the
child. However, we find that while petitioner had no ability to visit with the child while
incarcerated, the fact the he was incarcerated did not prevent him from supporting, or otherwise
communicating with the child. We have recently ruled on the issue of abandonment in the
context of incarceration, holding that “incarceration does not relieve a parent of the duty to
provide financial support for his/her child.” In re: Adoption of C.R, 233 W.Va. 385, 758 S.E.2d
589 (2014). In that case, the father did not visit the child and only paid child support
involuntarily through income withholding. Additionally, the father did nothing to avail himself
of remedies that could have permitted supervised visits with the child once he was released from
incarceration. The facts in C.R. mirror those of the instant case. Petitioner herein offers no
evidence to support his assertions. Petitioner asserts that he sent money to the child’s family
members but does not assert that he provided any money to the respondent great-grandparents,
who have always had the child in their custody. Petitioner claimed that his family would support
his claims but none of his family members were present for the final adoption hearing to present
such evidence.

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       We have previously held that

       “[t]he controlling principle . . . is the welfare of the child and . . . 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.” State ex rel. Kiger v. Hancock,
       153 W.Va. 404, 405, 168 S.E.2d 798, 799 (1969).

In re Antonio R.A., 228 W.Va. 380, 388, 719 S.E.2d 850, 858 (2011). According to the child’s
guardian, the child has thrived in the care of respondent great-grandparents, who have been his
complete emotional and financial support for his entire life. As such, the child’s best interests are
served by respondent great-grandparents’ adoption.

       For the foregoing reasons, the circuit court’s February 10, 2014, order granting the
adoption of minor child, K.C. is hereby affirmed.

                                                                                          Affirmed.


ISSUED: May 18, 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




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