Ryan P. v. Vicky P. and Elias P. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Ryan P., FILED
Respondent Below, Petitioner June 28, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-1060 (Wayne County 12-A-003) OF WEST VIRGINIA
Vicky P. and Elias P.,
Petitioners Below, Respondents
MEMORANDUM DECISION
Petitioner Ryan P.’s appeal, filed by counsel J. Patrick L. Stephens, arises from the
Circuit Court of Wayne County, wherein it granted respondents’ petition for a name change and
the adoption of the subject child by order entered on July 26, 2012. Respondents Vicky P. and
Elias P., by counsel Alison R. Gerlach, filed a response.
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.
Petitioner is the child’s natural father and respondents are the biological mother and
stepfather of the child. In January of 2012, respondents filed a petition for Elias P. to adopt the
child and change the child’s last name. To institute this adoption and name change, respondents
alleged abandonment, asserting that petitioner failed to provide proper parenting and only rarely
provided child support. In July of 2012, the circuit court granted respondents’ petition. In doing
so, it found that the presumptions of abandonment contained in West Virginia Code § 48-22-306
did not apply because petitioner has provided financial support to the child. However, it also
found that Elias P. is of good moral character, fit to adopt the child, has provided financial and
emotional support to the child, and has the financial ability to support and educate the child,
whereas petitioner failed to communicate with the child and failed to appear at the final hearing.
Petitioner failed to exercise his visitation rights, and at the time the petition was filed, he had not
seen the child since July of 2011. Further, the circuit court found that petitioner failed to inquire
into the well-being of the child and failed to communicate with the child in any manner. The
circuit court concluded that petitioner abandoned his parental rights to the child and that it would
be in the child’s best interests to grant respondents’ request for adoption. From this order,
petitioner appeals.
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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.
In re Jenna A.J., --- S.E.2d --- 2013 WL 2302047 (quoting Syl. Pt. 2, Walker v. W.Va. Ethics
Comm., 201 W.Va. 108, 492 S.E.2d 167 (1997)).
Petitioner argues that the circuit court erred by ruling that the statutory presumptions
contained in West Virginia Code § 48-22-306 do not apply and by finding that petitioner had
abandoned the child. Petitioner argues that the circuit court’s inquiry of abandonment should
have ended once it found that petitioner had provided the child financial support. Petitioner
asserts that this finding alone was enough to resist the presumption of abandonment. However,
petitioner reads our precedents too broadly. The circuit court made other findings sufficient to
establish that petitioner had abandoned his parental rights to the child.
Upon our review of the record and the circuit court’s order, we find no abuse of
discretion. The circuit court made findings that supported the name change and adoption to
promote the best interests of the child. Its conclusion was not inconsistent with abandonment as
it is defined in West Virginia Code § 48-22-102.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 28, 2013
CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
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