STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

October 1, 2013 In Re: The Adoption of D.T. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

No. 12-1512 OF WEST VIRGINIA
 (Mercer County No. 12-A-2) 

MEMORANDUM DECISION 

Petitioner C.T. Jr., by counsel Michael P. Cooke, appeals an October 19, 2012 order of 

the Circuit Court of Mercer County, which allowed Respondent M.W. to adopt petitioner’s 

natural child, D.T. Respondent, by counsel P. Michael Magann, filed a response in favor of the 

adoption. 

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. 

Child D.T. was born to petitioner and the child’s mother, A.W, in February of 2007. 

Shortly after the child’s birth, the parents separated. A.W. then met respondent, and the two 

began a relationship. In July of 2010, they married. During this three-and-a-half year period, 

petitioner was incarcerated for all but six months. Petitioner was then released late in 2010, but 

was re-incarcerated one month later after pleading guilty to manslaughter. Petitioner remains 

incarcerated for this conviction and was in prison when respondent filed his petition for adoption 

in January of 2012. Following an evidentiary hearing, the circuit court found that (1) petitioner 

had abandoned D.T. and (2) D.T.’s best interests would be served through adoption by 

respondent. Consequently, the circuit court granted respondent’s petition for adoption. 

Petitioner’s appeal followed. 

We bear in mind the following: 

“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). 

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Petitioner raises two assignments of error. He first argues that the circuit court erred in 

terminating his parental rights, due to his alleged abandonment of D.T., when it granted 

respondent’s petition for adoption. Petitioner asserts that he did not abandon D.T. merely 

because his child support was set at zero dollars. Petitioner further argues that his attempts to 

communicate with the child were unsuccessful because he did not know the child’s phone 

number and also asserts that correspondence sent through air mail was returned to him. 

Upon our review of the parties’ briefs and the appendix submitted on appeal, we find no 

error or abuse of discretion by the circuit court in granting respondent’s petition to adopt D.T. To 

determine abandonment as a part of adoption proceedings, West Virginia Code § 48-22-306, 

provides, in part: 

(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 uninterrupted for 

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

Moreover, West Virginia Code § 48-22-102 defines abandonment as “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 parental claims to the child.” 

The adoption hearing transcript provides that A.W. testified that petitioner has not paid child 

support since 2010, when he petitioned the family court to modify his child support payments to 

zero dollars per month. Although this petition was granted, petitioner was then, and currently is, 

in arrears with the payments he was ordered to make prior to this reduction. With regard to 

communication between petitioner and the child, A.W. testified that petitioner sent the child a 

birthday card on her first birthday, but has not sent any cards since. From this evidence, we 

cannot say the circuit court erred. 

After an adoptive parent has demonstrated presumption of abandonment, the biological 

parent has the opportunity to rebut this presumption. Subsection (d) of West Virginia Code § 48­

22-306 provides: 

(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: 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. 

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We do not find petitioner’s incarceration and reduction in child support as circumstances 

compelling enough to rebut the presumption of abandonment under the facts of this case. A 

review of the record indicates that even during periods when petitioner was not incarcerated, he 

was not diligent with making child support payments. Nor do we find that petitioner has rebutted 

the presumption that he had compelling circumstances, which prevented him from 

communicating with his child during the six months prior to respondent’s petition for adoption. 

Contrary to A.W.’s testimony, petitioner testified that he sent D.T. a birthday and Christmas card 

every year, not just in 2008 for the child’s first birthday. However, petitioner has not produced 

any evidence to support this assertion, nor did he show that he has communicated, or attempted 

to communicate, with the child in other ways. Petitioner admitted at the hearing that he has not 

seen D.T. since 2007 and that he has never petitioned for visitation or parenting time with her. 

Our review of the record also supports the circuit court’s findings that adoption is in D.T.’s best 

interests as she has bonded with respondent and respondent has fulfilled her emotional and 

financial needs since D.T. was an infant. Accordingly, we find that the circuit court did not abuse 

its discretion in granting respondent his petition for adoption. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 1, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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