PER CURIAM:
The petitioners herein and petitioners below, C.B.
Mother and Father were married to each other when the subject child, C.R., was born in 2001. In 2004, Father, who was an approved childcare provider, allegedly sexually abused a six-year-old child for whom he was caring. Father was convicted of two counts of first degree sexual abuse in the Circuit Court of Harrison County on January 9, 2007. He served approximately two and one-half years for these convictions and is currently serving twenty-five years of probation; as a result of these convictions, he also is registered as a sex offender. A condition of his probation requires Father to petition the court for permission to have visitation with any minor child. It does not appear that Father has ever requested permission to visit with C.R., and he last visited with his child in 2005. Father has, however, paid court-ordered child support for C.R. through wage withholding since his release from incarceration.
Mother and C.R. have been living continuously with Stepfather since July 2006. Stepfather considers himself to be the child's father, and the child considers Stepfather to be likewise. Mother and Father were divorced by order entered August 7, 2009. Because he was incarcerated and required to register as a sex offender upon his release, Father was not granted visitation with C.R. in the final divorce order. Additionally, consistent with the conditions of his supervised release and probation, the parties' divorce order specifically requires Father to petition the court to modify the child's custody to permit Father to request supervised visitation with his child. It does not appear from the record that Father has ever requested permission from the court to visit with his child or that he has had, or has attempted to have, any other contact with the child. Mother and Stepfather were married on October 2, 2010.
On June 21, 2012, Mother and Stepfather filed a "Petition for Adoption" in the Circuit Court of Harrison County to permit Stepfather to adopt C.R. C.R. desires to be adopted by Stepfather and would like to take Stepfather's last name. Father, however, refused to consent to the adoption, sent a letter to the court specifically objecting thereto, and appeared pro se at the adoption hearing. By order entered April 18, 2013, the circuit court denied the adoption, ruling that "the biological father has not abandoned the minor child." In this regard, the circuit court relied upon W. Va.Code § 48-22-306(a) (2001) (Repl.Vol.2009), which requires both a birth parent's failure to financially support his/her child and a failure to visit or communicate with his/her child to establish the presumption of abandonment. Citing Syl. pt. 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873 (1998). The court further recognized the petitioners' concerns regarding Father's parental fitness in light of his conviction and incarceration for sexual abuse of another child, but determined that "West Virginia's adoption statutes, W. Va.Code §§ 48-22-101, et seq., ... do not provide the proper forum for the termination of the biological father's parental rights in this particular regard." From this adverse ruling, Mother and Stepfather appeal to this Court.
In the instant proceeding, we are called upon to determine whether the circuit court properly applied the applicable law to deny the requested stepparent adoption. We previously have held that,
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Furthermore, insofar as the instant
The sole issue presented for our consideration and resolution in this proceeding is whether the circuit court properly interpreted and applied the pertinent adoption statutes to deny the requested stepparent adoption based upon its conclusion that Father had not abandoned his child. On appeal to this Court, Mother and Stepfather argue that Father's conduct constitutes abandonment and that the circuit court erred by denying their adoption petition. Based upon our application of the governing law to the facts of this case, we agree with the petitioners that the circuit court erred by denying the requested stepparent adoption.
In West Virginia, adoptions are governed by statute. See generally W. Va.Code § 48-22-101 et seq. When addressing an issue of statutory construction and application, we previously have ruled that "[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. at 587, 466 S.E.2d at 438. Thus, "[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). Accord Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968) ("Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.").
At issue in the instant proceeding is whether Father has abandoned his child so as to warrant a termination of Father's parental rights to permit Stepfather to adopt the child. Because the subject child was born during the parents' marriage, both Mother's and Father's consent to the adoption, or relinquishment of parental rights to permit the adoption, is required unless one of the statutory exceptions to the consent/relinquishment requirement is satisfied:
In the case sub judice, Mother has joined in Stepfather's petition to adopt the minor child so her consent to the adoption comes within the third exception to the consent/relinquishment requirement. See W. Va.Code § 48-22-301(b)(3). Father's parental rights to the subject child have not been terminated within the contemplation of W. Va.Code § 48-22-301(b)(1). Therefore, to obviate the consent/relinquishment requirement, it is necessary to find that Father has abandoned his child pursuant to W. Va.Code § 48-22-306. See W. Va.Code § 48-22-301(b)(2).
W.Va.Code § 48-22-306 (2001) (Repl.Vol. 2009), entitled "Conduct presumptively constituting abandonment," provides, in pertinent part, as follows:
Thus, to establish the statutory presumption of abandonment to overcome the consent/relinquishment requirement, the plain language of W. Va.Code §§ 48-22-306(a)(1-2) requires the failure of the child's parent to (1) financially support the child within the parent's means and (2) visit or communicate with the child when the parent knows where the child resides, is physically and financially able to do so, and has not been prevented from doing so, for a period of six months prior to the filing of the adoption petition. See also Syl. pt. 2, In re Jeffries, 204 W.Va. 360, 512 S.E.2d 873 (1998) (affording similar construction to predecessor of W. Va.Code § 48-22-306(a)). W. Va.Code § 48-22-306(d) additionally allows the parent to demonstrate compelling circumstances that have precluded the parent from financially supporting or visiting or communicating with the child.
Applying these factors to the case presently before us, we find that the circuit court erred by concluding that Father's involuntary payment of child support through wage withholding was sufficient to overcome the first factor of the statutory presumption of abandonment. See W. Va.Code § 48-22-306(a)(1). The last time Father had contact with his child was in 2005. Father and Mother remained married until August 2009. At no time during this period did Father provide any financial support for his child, either voluntarily or because he was required to do so by court order, even though he had an irrefutable duty to support his child. To this end, we previously have held that "[t]he duty of a parent to support a child is a basic duty owed by the parent to the child[.]" Syl. pt. 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 (1991). Accord In re Jamie Nicole H., 205 W.Va. 176, 183, 517 S.E.2d 41, 48 (1999) ("[P]rovision of ... financial support for children is one of the most basic components of parental responsibility."); Supcoe v. Shearer, 204 W.Va. 326, 330, 512 S.E.2d 583, 587 (1998) (per curiam) ("[T]he
Moreover, although Father was incarcerated from 2007 to 2009, incarceration does not relieve a parent of the duty to provide financial support for his/her child. See, e.g., In re L.N.D., 219 S.W.3d at 828 ("Incarceration did not discharge Father's ... obligation to make a minimal financial contribution for [his child's] support so as to demonstrate an intent to continue the parent-child relationship." (citations omitted)).
Father finally began providing financial support for his child in November 2009 when his wages were withheld specifically for the purpose of fulfilling his child support obligation. Unlike subsection (2) which requires the lack of communication to exist for the six months immediately preceding the adoption petition, the support requirement of subsection (1) contains no such temporal parameters. Compare W.Va.Code § 48-22-306(a)(2) with W.Va.Code § 48-22-306(a)(1). Thus, while Father may have been involuntarily providing support for his child through wage withholding since his employment upon his release from incarceration, Father never financially supported his child until he was judicially required to do so and his wages were involuntarily withheld. Moreover, at no time since Father last had contact with his child in 2005 has he ever voluntarily provided financial support despite his basic obligation to do so. See, e.g., In re Jamie Nicole H., 205 W.Va. at 183, 517 S.E.2d at 48 ("[P]rovision of ... financial support for children is one of the most basic components of parental responsibility."); Syl. pt. 3, in part, Wyatt v. Wyatt, 185 W.Va. 472, 408 S.E.2d 51 ("The duty of a parent to support a child is a basic duty owed by the parent to the child[.]"). Upon these facts, we conclude that the petitioners have presented sufficient evidence to prove the first prong of the statutory presumption of abandonment set forth in W. Va.Code § 48-22-306(a)(1).
Considering the second prong of the statutory presumption of abandonment, W. Va. Code § 48-22-306(a)(2), we conclude that the petitioners also presented sufficient evidence to establish that Father has failed to "visit or otherwise communicate with the child" for the six-month period immediately preceding their petition for stepparent adoption. The uncontested evidence of record shows that Father last visited with his child in 2005, some nine years ago, and that he did not have contact with his child in the six months prior to the filing of the instant adoption petition. For the time period from 2005 until his incarceration in 2007, Father has not provided a reason to excuse his lack of visitation or communication with the child other than that Mother may have discouraged, but not outright forbidden, such contact in light of the then-pending sexual abuse charges involving another child.
On April 23, 2007, the circuit court sentenced Father to two consecutive terms of imprisonment of one to five years followed by twenty-five years of probation and supervised release. Among the conditions imposed upon Father's supervised release was the requirement that he "not exercise visitation with any minor child ... without petitioning the Court for a modification of this condition and being granted permission to do so in accord[ance] with West Virginia Code § 62-12-9(a)(4)[.]"[
However, since Father's release from incarceration in October 2009, he has not petitioned these courts to excuse him from either his supervised release conditions or the parties' final divorce decree to allow him to exercise supervised visitation with his child. Thus, while these conditions may have prevented him from visiting his child in the first instance, see W.Va.Code § 48-22-306(a)(2), Father's failure to request that these conditions be lifted precludes him from claiming that there exist "compelling circumstances" to justify his failure to visit or otherwise communicate with his child. See W.Va.Code § 48-22-306(d). Moreover, Father has not contended that he was unaware of the child's location, financially unable to visit his child, or that Mother or Stepfather had prevented him from establishing or maintaining such contact as contemplated by W.Va.Code § 48-22-306(a)(2) to provide justification for a parent's failure to communicate or otherwise have contact with his/her child. Based upon Father's complete lack of contact with his child, during both the statutory six-month
Because the elements of the statutory presumption of abandonment set forth in W. Va.Code § 48-22-306 have been satisfied in this case, neither Father's consent to the requested stepparent adoption nor his relinquishment of his parental rights to his child is required in this case.
For the foregoing reasons, the April 18, 2013, order of the Circuit Court of Harrison County is hereby reversed, and this case is
Reversed and Remanded.
Since Father's sentencing and release from incarceration, this statute has been amended; however such statutory changes do not materially alter the version of the statute that is applicable to the case sub judice. Compare W. Va.Code § 62-12-9(a)(4) (2013) (Supp.2013) with W. Va. Code § 62-12-9(a)(4) (2001) (Repl.Vol.2010).
