FILED

March 1, 2017

released at 3:00 p.m.

RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

IN RE: ADOPTION OF L.A.

No. 16-0149 (Logan County No. 15-A-30-W)

MEMORANDUM DECISION

The petitioner herein and respondent below, S.A.1 (“Father”), by counsel Paul R.

Sheridan and Ira Clinton Adams, III, appeals from an order entered January 14, 2016, by the

Circuit Court of Logan County. By that order, the circuit court granted the stepparent

adoption petition of the respondents herein and petitioners below, C.S. (“Mother”) and H.B.

(“Stepfather”), by counsel M. Timothy Koontz. On appeal to this Court, Father contends that

the circuit court erred by granting the stepparent adoption petition and terminating his

parental and custodial rights to his infant child.

Upon our review of the parties’ arguments, the appendix record, and the pertinent

authorities, we find that the circuit court erred by granting the subject stepparent adoption

because the record evidence demonstrates that Father did not abandon his child. 

Accordingly, we reverse the circuit court’s January 14, 2016, order and remand this case for

further proceedings consistent with this opinion. Because this case does not present a new

or significant issue of law, and for the reasons set forth herein, we find this case satisfies the

“limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate

Procedure and is proper for disposition as a memorandum decision.

The facts giving rise to the instant proceeding began in September 2012 with the birth

of the parties’ child. Father and Mother lived together with their child, and Father supported

the family with his employment earnings. In December 2013, the parties separated, and

Mother and child moved out of Father’s home. Thereafter, Mother initiated proceedings in

the Family Court of Logan County by which she sought and was awarded child support, with

1

Insofar as the case sub judice involves sensitive facts, we will refer to the parties by

their initials and refrain from including unnecessary identifying information about the minor

child involved in these proceedings. See, e.g., In re: S.H., 237 W. Va. 626, ___ n.1, 789

S.E.2d 163, 165 n.1 (2016). See also W. Va. R. App. P. 40(e) (restricting use of personal

identifiers in cases involving children).

1
Father receiving supervised visitation with the parties’ child. In July 2014, Father’s

employment was terminated.2 Although Father had been paying his court-ordered child

support obligation through mandatory wage withholding, after he was dismissed from his

employment, Father had no income from which to pay his support obligation. Mother then

filed a petition for contempt based upon Father’s nonpayment of child support. Father

responded by filing a petition to modify his support obligation. Neither party filed a petition

or motion regarding Father’s visitation with the child.

The family court held a hearing on the contempt and modification petitions in January

2015. During the hearing, the court observed that an earlier hearing had been held in June

2014, but no transcript or order from that hearing existed from which to ascertain the nature

of the proceedings. Counsel opined that the June hearing had reviewed the status of the case

as well as Father’s visitation privileges with the child, but no details were provided. 

Visitation was not further discussed during the January 2015 hearing nor was Father deemed

to be unfit to visit with his child; the remainder of the hearing addressed the pending child

support issues. By order entered April 7, 2015, the family court resolved the child support

issues by ordering Father to claim the child on his income tax return, requiring him to pay

his full tax refund to Mother to satisfy child support arrearages and future support

obligations, permitting Mother to place a lien upon Father’s income tax return, and

modifying Father’s prospective support obligation. The court further ordered that

[Father’s] visitation with the parties [sic] minor child is terminated at his

parent’s house and/or any other place. At such time when [Father] can

successfully pass a drug screening test, he can petition the court for visitation. 

[Father’s] visitation is terminated until further order of this court.

Father did not appeal this ruling.

Mother then, on April 10, 2015, filed an amended petition for contempt for Father’s

alleged failure to comply with the family court’s April 7, 2015, order. Father appeared pro

se during the ensuing May 26, 2015, contempt hearing. Ultimately, the family court refused

to hold Father in contempt because (1) Father’s visit with the child on March 22, 2015,

occurred before the entry of the court’s order terminating his visitation privileges and (2) the

delay in Father’s payment of his income tax refund to Mother was caused, in part, by the tax

lien Mother had levied on said refund. Despite making no finding as to Father’s parental

fitness, the family court ruled during the hearing that “I’ll cut off visitation until [Father] can

2

It appears that Father had a work-related drug test in June 2014. The result of this

drug test was positive and led to Father’s subsequent dismissal from his employment.

2
show some employment and some initiative.” This ruling is memorialized in the resultant

June 18, 2015, final order, which directed that Father’s “visitation with the parties [sic] minor

child is hereby terminated at this time[,] and . . . [Father] will need to petition the Court for

any visitation to be reinstated until further order of this Honorable Court.” Father, who was

not represented by counsel, did not appeal this ruling.

Father’s parents, the child’s paternal grandparents, subsequently filed a petition for

grandparent visitation. In August 2015, Father filed a pro se petition for modification

whereby he sought reinstatement of his visitation privileges. In support of his request for

visitation, Father stated “I’m requestion [sic] that my visiontation [sic] to be reinstated as I

can now pass a drug test. I [sic] no longer using drug and leaving [sic] with my partents [sic]

and looking for a job.” The family court considered both of these petitions during a hearing

held on September 23, 2015. As to the grandparents’ petition, the family court held such

request in abeyance insofar as Father still possessed his parental rights to the child. With

respect to the Father’s petition, the family court awarded him supervised visitation, every

other Monday, for thirty minutes at a local McDonald’s restaurant. During the hearing, the

family court explained her ruling as follows:

I wouldn’t grant this visitation if I thought the child were in any danger. 

And that’s the only reason I’m granting it is under very, very controlled

circumstances. But I think, just so I have this on the record, in case [Mother’s

attorney] decides to appeal, I think it’s better to have some kind of very

controlled parenting time, than to have no parenting time at all if there’s a way

to control the situation. Because I’m hoping that [Father] is telling us the truth

and that he has his life together.[3] And if he does, then he’s eventually going

to get parenting time. Restricted at first, supervised at first, but eventually

he’ll get parenting time back. And I don’t want it to be a shock to your [child]

to go this period of time and have no contact with him at all and then all of a

sudden have this person reappear in [the child’s] life. So, rather than have, go

from zero to something, let’s go from zero to something very, very, very

controlled.

3As part of these proceedings, Father submitted to a drug test, which came back

negative for the presence of drugs in his system. Mother also requested, and was granted,

permission from the court to conduct hair follicle testing on Father, at her expense, to detect

drug usage over a longer period of time. It does not appear from the record, though, that

Mother has ever requested Father to submit to a hair follicle test.

3
(Footnote added). The award of supervised visitation is memorialized in the family court’s

September 25, 2015, order.4 This order was not appealed.5

On the same day as this family court hearing was held, Mother and Stepfather

tendered,6 to the Circuit Court of Logan County, a petition for stepparent adoption alleging

that Father had abandoned the parties’ child by not providing support or visiting with the

child for the immediately preceding six months. While the stepparent adoption petition was

pending, Father resumed visits with his child, visiting every two weeks in accordance with

the family court’s order.

The circuit court held the final stepparent adoption hearing on December 14, 2015;

Mother and Stepfather were represented by counsel, while Father appeared pro se. During

the hearing, Father testified as to the restoration of his visitation privileges, but was unable

to provide documentation thereof. Mother and Stepfather’s attorney provided the circuit

court with a family court order purportedly reflecting such ruling, but it is not clear whether

the order actually presented to the circuit court was the family court’s order holding in

abeyance the grandparents’ visitation petition or whether it was the family court’s order

reinstating Father’s visitation. Ultimately, the circuit court found that Father had failed to

support, contact, or visit with the parties’ child during the six months immediately preceding

the filing of the stepparent adoption petition, which conduct the court found constituted a

statutory presumption of abandonment pursuant to W. Va. Code § 48-22-306 (2001) (Repl.

4The family court’s order also noted that Father had a history of substance abuse that

had been addressed at prior family court hearings and had resulted in the termination of his

parenting time with the parties’ child, though no specific dates are given for said hearings

or rulings. While the parties have made various representations regarding Father’s alleged

drug use, there are no judicial findings of fact in the record finding Father to be an unfit

parent as a result thereof. Moreover, it does not appear that any complaints have ever been

made to Child Protective Services seeking to terminate Father’s parental rights based upon

parental unfitness attributable to his alleged drug use.

5The family court’s decision to hold in abeyance the grandparents’ petition for

grandparent visitation is reflected in a separate order, which also does not appear to have

been appealed.

6Although Mother and Stepfather presented their petition for stepparent adoption to

the circuit court on September 23, 2015, the circuit court did not order the petition to be filed

until October 1, 2015. The reason for this delay is not clear from the record.

4
Vol. 2015). The circuit court finalized the stepparent adoption by order entered January 14,

2016.7

Thereafter, Father, represented by counsel, filed a Rule 60(b) motion for relief from

the final adoption order on February 11, 2016.8 Through this motion, Father sought to clarify

the perceived facts upon which the circuit court had based its ruling and provide proof that

he had requested the restoration of visitation during the statutory six-month presumption

period and that he had been regularly visiting with his child since the restoration of his

visitation privileges. By order entered February 17, 2016, and corrective order entered

February 18, 2016,9 the circuit court denied Father’s request for relief. Father now appeals

to this Court.

On appeal to this Court, Father challenges the circuit court’s findings of fact and

conclusions of law in its final order granting the subject stepparent adoption. We previously

have held that “[t]his 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.” Syl. pt. 4, Burgess v.

Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996). We conduct a plenary review of the

circuit court’s interpretation of the governing statutory law and its application to the facts of

this case. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415

(1995) (“Where the issue on an appeal from the circuit court is clearly a question of law or

involving an interpretation of a statute, we apply a de novo standard of review.”).

The sole issue presented for this Court’s consideration and resolution is whether the

circuit court correctly ruled that Father had shirked his responsibilities to his child so as to

permit a finding of abandonment under W. Va. Code § 48-22-306 (2001) (Repl. Vol. 2015)

7Later in January 2016, the two visitation petitions pending in family court, i.e.,

Father’s visitation petition and his parents’ grandparent visitation petition, which had been

scheduled for status hearings on December 16, 2015, but which hearings were continued at

Mother’s request, were dismissed given the final order in the stepparent adoption case.

8

Insofar as Father filed his petition for appeal herein one day after his Rule 60(b)

motion for relief from the final adoption order and before the circuit court had ruled on said

motion, only the circuit court’s final stepparent adoption order is before the Court in the

instant proceeding.

9The circuit court’s initial order on February 17, 2016, incorrectly stated that Father

had not appeared for the final stepparent adoption hearing. The court’s February 18, 2016,

order corrected this statement to reflect Father’s appearance.

5
sufficient to support the subject stepparent adoption. Pursuant to W. Va. Code § 48-22-

306(a),

[a]bandonment 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.

See also W. Va. Code § 48-22-102 (2001) (Repl. Vol. 2015) (defining “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 parental claims to the child”); Matter of Adoption of Schoffstall, 179 W. Va. 350, 352, 368

S.E.2d 720, 722 (1988) (noting that “abandonment” is “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” (citations omitted)).

Under W. Va. Code § 48-22-306(d), this statutory presumption may be overcome by

showing there existed “compelling circumstances” to prevent the child’s parent from

fulfilling his/her parental responsibilities:

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.

Moreover,

[f]or 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-

6
3c(a)(1)[10] [1997] requires the parent to financially support the child, within

the means of the parent. Furthermore, W. Va. Code § 48-4-3c(a)(2)[11] [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.

Syl. pt. 2, In re Jeffries, 204 W. Va. 360, 512 S.E.2d 873 (1998) (footnotes added).

Finally, the burden of proof required to terminate a parent’s parental rights, such as

would be required in the stepparent adoption matter sub judice, is clear and convincing

evidence. See Syl. pt. 6, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“The standard

of proof required to support a court order limiting or terminating parental rights to the

custody of minor children is clear, cogent and convincing proof.”).

In granting the stepparent adoption, the circuit court found that Father had both failed

to support and failed to communicate with his child during the six months immediately

preceding the filing of the stepparent adoption petition resulting in a statutory presumption

of abandonment pursuant to W. Va. Code § 48-22-306(a). Although Father, who appeared

at the adoption hearing pro se, attempted to present evidence of compelling circumstances

to rebut the statutory presumption of abandonment, the testimony presented at the hearing

was confusing, particularly insofar as it is not clear whether the circuit court was presented

with the family court’s order restoring Father’s visitation privileges or the family court’s

order, entered the same day as the preceding order, holding in abeyance the grandparents’

petition for visitation. Upon our review of the record in this case, we find that the circuit

court erred in concluding that Father had abandoned his child.

Pursuant to W. Va. Code § 48-22-306(a)(1), the first factor necessary for a finding of

presumptive abandonment is the parent’s failure to provide financial support for his/her child

“within the means of the birth parent.” (Emphasis added). The evidence in this case is

uncontradicted that, at the relevant time, Father was not employed and had no income from

10In 2001, the Legislature recodified the adoption statutes, but the pertinent language

is substantially unchanged.

11See note 10, supra.

7
which to fulfill his support obligation. In other words, Father had no “means” by which to

pay child support. Id. Around the time that the six-month presumption period commenced,

Father had given his entire income tax refund check to Mother in payment of past due child

support, with any excess to be applied to future child support payments. Moreover, while

Father was unemployed and without job prospects for the first part of this six-month period,

during the second half of this time, Father was actively seeking employment and applying

for jobs throughout Logan County.12 We conclude that Father demonstrated both that he

provided support for his child “within [his] means”13 and that there existed compelling

circumstances,14 i.e., his unemployment, to explain his nonpayment of support.15

The second factor required to support a statutory presumption of abandonment is the

parent’s failure to “visit or otherwise communicate with the child when . . . [he/she] 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.” W. Va. Code § 48-22-306(a)(2).

The term “abandonment” also contemplates “a settled purpose to forego all duties and

relinquish all parental claims to the child.” W. Va. Code § 48-22-102. Under the facts

presented by the appendix record, we find neither statutorily presumed abandonment nor “a

settled purpose to . . . relinquish all parental claims” to exist in this case. Id. It is apparent

from the record evidence herein that, during the six-month statutory presumption period,

Father could not visit with his child because the family court had prevented him from doing

so after Mother had requested visitation, even supervised visits, to cease due to Father’s

alleged drug use. However, none of the family court orders terminating Father’s visitation

12Furthermore, insofar as the six-month period referenced in W. Va. Code § 48-22-

306(a) appears to refer to the parent’s communication and visitation with the child rather than

the provision of support, we note that Father has provided support in addition to the

aforementioned income tax refund. When the child was first born, Father supported both

Mother and the parties’ child until Mother and child left his residence. Thereafter, Father

provided child support through mandatory wage withholding until his employment was

terminated. Additionally, Father’s counsel noted, during oral argument, that Father is now

working and repaying his child support arrearages.

13W. Va. Code § 48-22-306(a)(1).

14W. Va. Code § 48-22-306(d).

15Furthermore, even if Father had inexcusably failed to support his child, “failure to

pay child support alone does not constitute abandonment of the natural parents’ rights in an

adoption proceeding.” Syl. pt. 2, in part, Matter of Adoption of Schoffstall, 179 W. Va. 350,

368 S.E.2d 720 (1988).

8
rights contained in the appendix record disclose any findings of fact by the presiding judge

upon which to base the court’s conclusion that visitation between Father and his child should

end, either because Father was unfit, because such visits were harmful to the parties’ child,

or for any other reason.16 Ultimately, the family court indicated that it would consider

restoring Father’s visitation privileges, upon Father’s petition for reinstatement, once he

“show[ed] some employment and some initiative.” Not only was this an improper condition

to place upon Father’s right to visit with his child,17 but such admonishment did not deter

Father’s commitment to seek and exercise visitation.

Following the family court hearings and orders of spring 2015 terminating Father’s

visitation privileges, Father stopped using drugs and started looking for employment. In

August 2015, during the subject six-month presumption period, Father, pro se, filed a petition

to reinstate his visitation privileges. And, once his visitation with his child had been restored

in September 2015, Father regularly exercised his visitation privileges, every other week,

until the time of the final adoption hearing. Such proactive conduct by Father does not

suggest that he intended to forego all contact with his child. Rather, upon these facts, we are

left with the inevitable conclusion that Father did not abandon his child under any definition

16Neither has there been a referral to Child Protective Services seeking to terminate

Father’s parental rights based upon concerns that Father is not capable of parenting his child

or that he is a danger to his child as a result of his alleged drug use.

17While we cannot afford Father relief from these orders from which he did not

appeal, we would be remiss if we did not note that family law jurisprudence, both in West

Virginia and in our sister jurisdictions, recognizes that a court cannot withhold visitation

from a parent based solely upon the parent’s nonpayment of child support. See, e.g., Syl. pt.

2, Ledsome v. Ledsome, 171 W. Va. 602, 301 S.E.2d 475 (1983) (“The right of a parent, not

in custody of his or her child, to visit that child may not ordinarily be made dependent upon

the payment of child support by that parent. However, when a court finds that the parent’s

refusal to make child support payments is contumacious, or willful or intentional, that

parent’s visitation rights may be reduced or denied, if the welfare of the child so requires.”). 

See also Wilson v. Wilson, 73 Idaho 326, 328, 252 P.2d 197, 198 (1953) (“It is only under

extraordinary circumstances that a parent should be denied the right of visitations . . . . 

Default in the payment of support money is not in itself sufficient reason to deprive the father

of the right to see and visit his child.”); Block v. Block, 15 Wis. 2d 291, 297, 112 N.W.2d

923, 927 (1961) (“The rights of visitation should not be denied a parent to punish him

because of his failure to pay support money for the child. The paramount reason for

visitation is the benefit to be derived by the child from associating with its parents and its

welfare should not be jeopardized by an order conditioned upon payment of support money

. . . even though such order might prove effective as a collection device.” (citations omitted)).

9
of the term. Moreover, to the extent that Father did not visit with his child during the sixmonth statutory presumption period, the record is clear that Father was prevented from

exercising his visitation privileges by orders of the family court and, further, that such orders

constitute “compelling circumstances”18 under the particular facts of this case.

In the final analysis, adoption is a creature of statute. As such, the adoption statutes

must be strictly complied with in determining whether to grant a petition seeking to adopt a

minor child in a given case. See, e.g., In re the Adoption of Jon L., 218 W. Va. 489, 494, 625

S.E.2d 251, 256 (2005) (“[W]e recognize that adoptions in West Virginia, and elsewhere, are

governed by statute.”). See also Franklin v. White, 263 Ala. 223, 225, 82 So. 2d 247, 249

(1955) (“[T]he right of adoption is purely statutory.” (internal quotations and citations

omitted)); In re Adoption of Watson, 45 Haw. 69, 73, 361 P.2d 1054, 1056 (1961) (“The

proceedings being wholly statutory, adoption may be effected only by compliance with the

prescribed requirements of the law.”). Under the facts and circumstances presented in this

case, we cannot conclude that Mother and Stepfather have established the statutory

presumption of abandonment set forth in W. Va. Code § 48-22-306(a) necessary to compel

the subject stepparent adoption over Father’s objections. Accordingly, we reverse the circuit

court’s order granting such adoption and remand this case for further proceedings consistent

with this opinion.19

18W. Va. Code § 48-22-306(d).

19To the extent that Father also seeks relief from this Court to reinstate his visitation

privileges with the parties’ child, such issue is not properly before the Court insofar as the

circuit court in the subject stepparent adoption proceeding ruled only on the adoption matter,

while the issue of visitation was under consideration in the concurrent family court

proceeding. Accordingly, any request for reinstatement of Father’s visitation privileges

should be brought before the family court. Should the visitation proceedings be revisited,

the family court should follow Rule 47 of the West Virginia Rules of Practice and Procedure

for Family Court to determine whether the appointment of a guardian ad litem is needed to

protect the safety or best interest of the parties’ child insofar as the deprivation and restriction

of Father’s visitation privileges have been attributed to Father’s alleged drug use. See W. Va.

R. Prac. & Proc. Fam. Ct. App. B, at 2 (“Courts shall not routinely assign guardians ad litem

for children . . . unless the court has reasonable cause to suspect the parenting issues involve

a child’s safety or the best interest of the child warrants further investigation by the court.”

(emphasis added)). Furthermore, should the court deem it appropriate to reinstate Father’s

visitation privileges with his child, such process should be accomplished gradually. See Syl.

pt. 3, in part, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (“It is a

traumatic experience for children to undergo sudden and dramatic changes . . . . Lower

courts in cases such as these should provide, whenever possible, for a gradual transition

10
For the foregoing reasons, the January 14, 2016, order of the Circuit Court of Logan

County is hereby reversed, and this case is remanded for further proceedings.

Reversed and Remanded.

ISSUED: March 1, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

period, especially where young children are involved. Further, such gradual transition

periods should be developed in a manner intended to foster the emotional adjustment of the

children to this change and to maintain as much stability as possible in their lives.”). The

family court, upon the evidence presented to it, may determine whether such visitation should

be supervised, but, in any event, the reintroduction of visitation should be accompanied by

a transition period and accomplished in a gradual manner given the substantial length of time

during which Father and child have had no contact with each other.

11