### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re Adoption of I.J.E. and T.M.E. 

### FILED

October 19, 2018

No. 17-1133 (Nicholas County 17-A-21) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner J.E.E., by counsel Harley E. Sto llings, appeals the Circuit Court of Nicholas County’s October 18, 2017, order finding that he abandoned children I.J.E. and T.M.E. 1
Respondent R.M., by counsel Nigel E. Jeffries, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circ uit court erred in making certain factual findings, failing to consider certain facts, and finding that he abandoned the children.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

Prior to the initiation of these proceedings, pet itioner, the biological father of the children at issue, and the children’s mother were married. The marriage resulted in the birth of both children at issue. In November of 2011, petitio ner and the children’s mother were divorced by order of the Family Court of Clay County. Accordi ng to the parties, the fa mily court ordered that petitioner was to have no contact with the children until he completed the following services: (1)

Batterer’s Intervention Preventi on Program (“BIPPS”); (2) indivi dualized parenting education; and (3) adult life skills education. 2 The family court further orde red petitioner to pay monthly

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).

2 The sparse record in this matter contains only (1) the docket sheet for the underlying proceedings, (2) the order on appeal, (3) petitione r’s petition to modify the parenting plan and child support obligation, and (4) petitioner’s financ ial statement. The record does not contain any of the orders from the family court concerning the parties’ divorce, th e subsequent parenting plan, or the order denying petiti oner’s motion for modification. As su ch, the statement of facts in this memorandum decision is based, in pa rt, upon the parties’ representations.

1child support. Following the divorce, the moth er remarried in December of 2011. She and the children have resided with the stepfather , respondent herein, since that time.

In April of 2016, petitioner filed a motion to modify the parenting plan and child support

in an effort to exercise visita tion with the children. According to respondent, the family court

denied this motion on the basis th at petitioner failed to comply with the services previously ordered. Accordingly, the family court found that it wa s in the children’s best interests to have no contact with petitioner until such time as he complied with those services.

Petitioner was incarcerated for a burglary c onviction in February of 2017 and remained incarcerated throughout th e underlying proceedings. 3 As a result of his in carceration, petitioner’s monthly child support obligation was reduced to zero. In August of 2017, the children’s mother and stepfather filed a petition for adoption in the Circuit Court of Nicholas County in which they alleged that petitioner abandoned the children. In October of 2017, the circuit court held a hearing on the contested adoption. Ultimately, th e circuit court found that petitioner abandoned

the children. It is from this order that peti tioner appeals.

This Court has previously establishe d the following standard of review:

“In reviewing challenges to the findi ngs and conclusions of the circuit court, we apply a two-prong deferential st andard 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 f actual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 1, In re the Adoption of Jon L., 218 W.Va. 489, 625 S.E.2d 251 (2005).

Syl. Pt. 1, Joshua D.R. v. David A.M. , 231 W.Va. 545, 746 S.E.2d 536 (2013) (quoting Syl. Pt. 2,

Walker v. W. Va. Ethics Comm’n , 201 W.Va. 108, 492 S.E.2d 167 ( 1997)). Upon our review, we find no error in the proceedings below.

First, petitioner alleges that the circuit cour t erred in finding that “[w]hile [petitioner]

avers that he did not know the childre n’s address, it is apparent that he made little to no effort to ascertain it.” Before this Court, petitioner fa ils to outline what steps he took to obtain the

children’s address so that he coul d contact them or otherwise show that the circuit court’s order in this regard is contrary to the evidence. In short, petitioner wholly fails to provide any argument that he did, in fact, attempt to obtain the children’s address. In stead, petitioner argues that he was “making progress toward reestablishi ng parenting privileges at the time of the filing of the adoption petition[,]” as evidenced by his alleged particip ation in previously ordered services. Because petitioner does not provide any ar gument to show that the circuit court erred in finding that he made little to no effort to ascertai n the children’s address, we find that he is not

3 Petitioner asserts, without any evidence to supp ort his claim, that he was incarcerated as early as May of 2016. However, he also alternately asserts at multiple points in his brief that he was incarcerated in May of 2017. The circuit court’s order on a ppeal, however, indicates that “[petitioner] has been incarcera ted upon a conviction of burglary since February 9, 2017. . . .”

2entitled to relief in this regard. However, to the extent that petitioner is arguing that his alleged compliance with the required se rvices was in furtherance of contacting the children and, thus, renders the circuit court’s finding err oneous, we similarly find no error.

Petitioner acknowledges that th e family court’s prior orde r barred him from contacting the children until such time as he completed th e BIPPS program, parenting education, and adult

life skills education. Acco rding to petitioner, his prior “pe tition seeking visitation alleged, among other things, ‘I have also taken my parenting cl ass.’” He goes on to assert that he “testified during the adoption hearing that he had take n the BIPPS class in Randolph County.” However, on appeal to this Court, petiti oner provides no evidence to corroborate his self-serving assertions that he completed these two requirements. More over, petitioner acknowledges that he did not complete all of the services required of him, as he asserts that “the parenting skills class required of him was not available in prison.” Regardless of whether this service was unavailable due to his incarceration, petitioner makes no effort to explain why he di d not complete the service at any point between November of 2011, when the family court ordered he do so, and his incarceration in February of 2017. Simply put, the record is clear that petitioner did not undertake the steps necessary to contact his children. Accordingly, we find no error in the circuit court’s finding that he made no e ffort to contact the children, rega rdless of whether that finding was based on petitioner’s admitted failure to obtain the children’s address or undertake the services necessary to contact the children in acc ordance with the family court’s prior order.

Next, petitioner argues that the circuit court refused to note that he “was incarcerated from May 9, 2017, through the present. . . .” As noted above, petitioner’s brief contains at least two different dates upon which he alleges that his incarceration began and none of his assertions are supported by any evidence. Regardless of the date of his incarcerati on, petitioner’s argument is predicated on the circuit court’s failure to recognize that he was incarcerated during the proceedings and, thus, unable to visit the children. We do not agree, as the circuit court’s order specifically indicates that pet itioner “has been incarcerated u pon a conviction of burglary since February 9, 2017. . . .” As such, it is clear that the circuit court recogni zed that petitioner was incarcerated during the proceedings and that his incarceration resulted in a restriction on his travel. The order on appeal show s that the circuit co urt appropriately ac knowledged petitioner’s incarceration and considered the same in reaching its decision. As such, petitioner is entitled to no relief in this regard.

Finally, the Court finds no error in the circ uit court’s finding that petitioner abandoned the children or its finding that petitioner failed to establish compelling circumstances to rebut the presumption of abandonment. In support of this assignment of error, petitioner argues that he was incarcerated for the entirety of the adoptio n proceedings and his incarceration denied him the opportunity to communicate, visi t, or support the children. Sp ecifically, petitioner argues that an incarcerated parent is unable to pay child sup port; claims that the circuit court penalized him for seeking to have his child s upport obligation reduced to zero while incarcerated; and asserts that he was “doing what he could to have his pa renting privileges restored.” The Court, however, finds that petitioner’s arguments in support of th is issue misstate the fact s of the case and the relevant legal authority.

Pursuant to West Virgin ia Code § 48-22-306(a),

3[a]bandonment of a child over the age of six months shall be presumed when the birth parent: (1) Fails to financially suppor t the child within the means of the birth parent; and (2) Fails to visi t 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 pers on 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 immediat ely preceding the filing of the adoption petition.

Moreover, West Virginia Code § 48-22-306(d) pr ovides that

[n]otwithstanding any provision in this sect ion 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, visi ting 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.

According to petitioner, he esta blished compelling circumstances for his failure to contact the children and provide support because of his incarceration. We do not agree.

First, this Court has held that “incarcera tion does not relieve a parent of the duty to provide financial suppor t for his/her child.” In re Adoption of C.R. , 233 W.Va. 385, 758 S.E.2d 589 (2014). Moreover, it is clear th at petitioner failed to pay child support as ordered prior to his incarceration. While pe titioner asserts that he paid child s upport prior to his incarceration, he provides no evidence in support of this assertio n. On the contrary, the evidence below showed that petitioner failed to pay hi s child support prior to incarcerati on. Specifically, the circuit court noted that, as of August of 2017, petitioner “owed back child support in the amount of $ 24,314.18 .” Further, the circuit court found that “[a]s a result of his incarceration [petitioner’s] child support obligation was decreas ed to zero dollars per month while he is incarcerated. . . .” Given that his child support obliga tion was reduced to zero, it is clear that petitioner failed to pay his child support as ordered prior to incarcerat ion, as evidenced by his arrearages. Thus, this

element of abandonment is satisfi ed, especially in light of pe titioner’s failure to establish compelling circumstances to rebut the same.

Additionally, in finding that petitione r abandoned the childre n, the circuit court specifically found that he “has not had contact with the children sin ce 2013.” While it is true that he was initially precluded from contacting the children by the family court’s order barring contact until such time as he completed the required services, we fi nd that this does not constitute a compelling circumstance to rebut th e presumption of abandonment, especially given petitioner’s willful refusal to complete those services for a period of several years. See Id . at 391, 758 S.E.2d at 595 (holding that although restrictions on a father’s contact with his child as imposed by the terms of supervised release and a final divorce decree “may have prevented him from visiting his child in the first instance, . . . [the] Father’s failure to request that these conditions be lifted precludes him from claiming that there exist ‘compelling circumstances’ to

4justify his failure to visit or otherwise communi cate with his child”). Petitioner argues that he petitioned the family court for a modification of th e parenting plan such that he could exercise visitation with the children, but we find that this was a hollow request given his admitted failure to comply with the necessary services. As su ch, we find that petitio ner failed to establish compelling circumstances to rebut the presumpti on of abandonment, and th at the circuit court’s finding that petitioner abandoned th e children was not in error.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.

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