Best Interests Cannot Substitute for Statutory Abandonment in Stepparent Adoption—Interference with Visitation Defeats the Abandonment Presumption

1. Introduction

This appeal arose from a stepparent adoption petition filed by the child’s father (R.H.) and stepmother (S.H.) seeking to adopt R.E.H. without the biological mother’s (K.M.’s) consent. The parties’ history included a prior Tennessee child-welfare/custody matter that resulted in the father becoming the child’s primary residential parent and the mother receiving defined in-person visitation (four consecutive days monthly) plus “unimpeded” Facetime calls twice weekly. After the case was transferred to West Virginia family court, the parents did not refile pending motions. Years later, the mother sought modification/enforcement in family court alleging the father had blocked in-person and video contact; the next day, the father and stepmother filed the stepparent adoption petition and obtained a stay of the family court proceedings.

The central legal issue was narrow but consequential: whether the mother’s consent could be excused because she had “abandoned” the child under the statutory presumption in West Virginia Code § 48-22-306(a), particularly where the father admitted he stopped visitation without court approval and ignored repeated efforts by the mother to communicate and enforce her court-ordered contact.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the denial of the stepparent adoption. The Court held that the circuit court correctly focused on the statutory prerequisites for adoption—especially the consent requirement and the limited statutory exception for abandonment—and did not err by rejecting the petitioners’ attempt to pivot the case to a broad “best interests” comparison of households. The record supported the circuit court’s finding that the mother had not abandoned the child within the six months immediately preceding the filing of the adoption petition and, to the extent contact lapsed, it was because the father prevented visitation/communication.

The Court also rejected arguments that the circuit court improperly confined its evaluation to the six-month window; under controlling law, that period is determinative for presumptive abandonment, though outside conduct may be considered for credibility and intent. Finally, the Court found no merit in the contention that denying adoption deprived the child of permanency because the mother did not challenge the father’s custody, meaning the child already had the stability typical for children of separated parents.

3. Analysis

3.1 Precedents Cited

In re Adoption of R.L., 249 W. Va. 89, 894 S.E.2d 871 (2023)

The Court began with the standard of review from In re Adoption of R.L.: adoption dispositions are reviewed for abuse of discretion, while underlying factual findings are reviewed for clear error. This framing mattered because the circuit court’s decision turned heavily on credibility and factfinding—e.g., whether the mother attempted to maintain contact, whether the father obstructed contact, and whether the mother failed to support the child “within [her] means.”

In re Adoption of H.G., 246 W. Va. 105, 866 S.E.2d 170 (2021)

The petitioners relied on Syllabus Point 6 of In re Adoption of H.G. to argue the court should consider conduct beyond the six months before filing. The Supreme Court accepted the principle but enforced its limits:

• The determinative period for presumptive abandonment under West Virginia Code § 48-22-306(a)(2) is “the six-month period immediately preceding the filing of the adoption petition.”
• Conduct outside that window may be considered only as relevant to the parent’s “credibility and intentions,” not to expand the statutory abandonment period itself.

Applying that framework, the Court noted the circuit court did consider broader history while still correctly anchoring the abandonment presumption to the statutory six-month period.

State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013) (quoting State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996))

These cases were invoked for appellate briefing discipline: issues “not supported with pertinent authority” are not considered. The Court used that rule, along with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, to decline review of the petitioners’ “pseudo-‘disposition five’” argument because it lacked supporting authority and developed legal argument.

In re Adoption of Mullins by Farley, 187 W. Va. 772, 421 S.E.2d 680 (1992)

The Court relied on In re Adoption of Mullins by Farley to rebut the petitioners’ “permanency” argument. The cited point was that denial of an adoption petition does not necessarily undermine a child’s stability where the existing custodial arrangement remains intact. Here, because the mother did not challenge the father’s continued custody, the child’s stability and permanency were not rendered precarious by denying adoption.

3.2 Legal Reasoning

(a) Adoption is statutory; “best interests” does not erase consent requirements

The petitioners characterized the circuit court’s approach as improperly ignoring the child’s “polar star” best interests. The Supreme Court rejected that framing by emphasizing the statutory architecture:

• West Virginia Code § 48-22-301(b) requires a parent’s consent or relinquishment for adoption unless a statutory exception applies.
• One such exception is abandonment under West Virginia Code § 48-22-306.
• Therefore, a court cannot reach a freestanding best-interests comparison to bypass the threshold statutory prerequisites (consent or a proven statutory substitute like abandonment).

In effect, the decision distinguishes two phases that litigants sometimes blur: (1) whether consent is excused under a statutory ground (here, abandonment) and only then (2) whether the adoption should be granted considering the child’s welfare. The Court held the case never cleared phase (1).

(b) Presumptive abandonment requires proof of both support failure and contact failure—without custodial prevention

The governing statute, West Virginia Code § 48-22-306(a), presumes abandonment (for a child over six months) only when both of the following are established for “a period of six months immediately preceding the filing of the adoption petition”:

• Failure to financially support the child within the parent’s means; and
• Failure to visit or otherwise communicate when the parent knows the child’s residence, is physically and financially able, and “is not prevented from doing so” by the custodial person/agency.

The circuit court found (and the Supreme Court agreed) that the record was “replete with evidence” of the mother’s attempts to maintain court-ordered visitation that were “thwarted” by the father’s admitted unilateral cessation of visits without court approval and his receipt of “sporadic e-mails” seeking contact. This directly negated a required element of the presumption—i.e., that the parent “is not prevented” from contact.

(c) The “conditions” argument failed because it was untethered to the custody order and record

In reply, petitioners argued the Tennessee order conditioned visitation on the mother’s compliance with screenings/assessments, license restoration, and stability, claiming that justified withholding visitation. The Court rejected this as lacking record support: the order granted specific visitation and phone contact; it described what the mother would need to show to expand visitation, not what she must show to receive the visitation already awarded. Critically, the mother was not seeking extra visitation, and the father never petitioned to modify the existing visitation before self-help enforcement.

(d) The court properly confined abandonment to the statutory six-month window while using earlier conduct for credibility and intent

Responding to the petitioners’ complaint that limiting evidence to six months excluded “extensive evidence of [the mother’s] unfitness,” the Court did three things:

• Reaffirmed the determinative six-month statutory window for presumptive abandonment under § 48-22-306(a)(2).
• Confirmed that the circuit court did consider broader conduct for “intentions and credibility,” consistent with In re Adoption of H.G..
• Noted an important doctrinal boundary: “fitness” is not part of the abandonment analysis in an adoption proceeding (and the petitioners’ argument “appear[ed] to conflate” the two).

(e) Permanency arguments cannot manufacture abandonment where custody is stable

The petitioners argued that denying adoption deprived the child of permanency. The Court treated this as a mismatch between remedy and reality: because the mother did not challenge the father’s custody, the child already had the available stability of non-cohabitating parents. In re Adoption of Mullins by Farley supplied the analogy that stability may remain unaffected by denial of adoption where custody is secure.

3.3 Impact

Although issued as a memorandum decision, the Opinion reinforces and operationalizes several principles likely to shape stepparent adoption litigation and related family-court strategy in West Virginia:

• Anti-“self-help abandonment” rule in practice: A custodial parent who unilaterally blocks court-ordered visitation/communication risks defeating a later abandonment-based adoption petition because § 48-22-306(a)(2) requires that the noncustodial parent “is not prevented” from contact.
• Clear sequencing of issues: Courts must resolve statutory consent/abandonment prerequisites before being drawn into comparative “best home” arguments.
• Six-month window remains the gatekeeper: Litigants cannot expand abandonment by importing older misconduct, though such evidence may still matter to credibility and intent under In re Adoption of H.G..
• “Fitness” versus “abandonment” separation: The decision cautions litigants that allegations of parental unfitness are not interchangeable with statutory abandonment and should be pursued through the appropriate procedural vehicle (e.g., custody/visitation modification, abuse/neglect where applicable), not repackaged to excuse consent.
• Procedural discipline on appeal: Unsupported assignments of error—here, the “pseudo-‘disposition five’” claim—will be refused under State v. Larry A.H. / State v. LaRock and Rule 10(c)(7).

4. Complex Concepts Simplified

• “Consent” in adoption: As a default, a biological parent must agree to an adoption. The law allows consent to be excused only for specific statutory reasons (such as proven abandonment).
• “Presumptive abandonment” (West Virginia Code § 48-22-306(a)): A legal presumption that abandonment occurred arises only if the parent both (1) failed to support within their means and (2) failed to visit/communicate for an uninterrupted six months immediately before the petition—and the parent was not prevented from contact by the custodian.
• “Six months immediately preceding the filing”: The key measuring period. Evidence from before may be relevant for judging sincerity/credibility, but it cannot replace the statutory six-month requirement.
• “Clear error” vs. “abuse of discretion”: “Clear error” means the trial court’s factual finding is plainly wrong based on the record. “Abuse of discretion” means the trial court made a decision outside the range of reasonable choices. The Supreme Court found neither.
• “Psychological parent”: A person who functions as a parent in day-to-day life. The stepmother’s role may be important to the child, but it does not, by itself, eliminate the other biological parent’s statutory rights in an adoption.
• “Permanency”: Stability and continuity in a child’s living and caregiving arrangements. The Court reasoned permanency was not undermined because custody with the father was not at risk.

5. Conclusion

The Supreme Court of Appeals affirmed denial of the stepparent adoption because the statutory gateway for excusing the mother’s consent—presumptive abandonment under West Virginia Code § 48-22-306—was not met. The Court held that “best interests” arguments cannot substitute for statutory prerequisites, especially where the custodial parent’s unilateral interference with court-ordered visitation and communication defeats an essential element of abandonment. The decision underscores that stepparent adoption is not a mechanism to resolve contested visitation disputes by recharacterizing blocked contact as abandonment; the proper path is to seek modification or enforcement in family court rather than to rely on self-help restrictions and then pursue adoption.