Background
R.E.H. is the child of her father, R.H., and her biological mother, K.M. Following neglect proceedings in Tennessee, R.H. was designated primary residential parent while K.M. retained court-ordered visitation rights—four consecutive days per month and twice-weekly video calls. In January 2020, after the mother told the child during a visit that she was her mother, the father unilaterally stopped permitting in-person visits without seeking court approval. The family court proceedings were eventually transferred to Ohio County, West Virginia, and neither parent refiled pending motions. Between 2020 and 2024, the mother sent the father multiple emails seeking contact with the child, all of which he ignored. She also did not know the family’s address until the adoption petition was filed.
In September 2024, K.M. filed a petition in family court to enforce her visitation rights, alleging the father had blocked in-person visits since 2020 and interfered with video calls. The very next day, R.H. and his wife—the child’s stepmother, S.H.—filed a petition for stepparent adoption in the circuit court, and successfully moved to stay the family court proceedings. The petitioners alleged K.M. had abandoned the child by failing to visit, communicate, or provide financial support for more than six months preceding the filing.
At an evidentiary hearing in January 2025, the father acknowledged stopping the mother’s visits without court approval and admitted receiving sporadic emails from K.M. seeking contact. The mother testified she had no court order revoking her visitation, had repeatedly sought contact through various means, and had been working her way out of poverty—only recently saving enough to hire an attorney to pursue enforcement. The circuit court denied the adoption petition, finding the mother had not abandoned the child, and the petitioners appealed.
The Court’s Holding
The Supreme Court of Appeals of West Virginia unanimously affirmed the circuit court’s denial of the stepparent adoption petition. Under West Virginia Code § 48-22-306(a), abandonment of a child over six months old is presumed only when a birth parent both fails to provide financial support within her means and fails to visit or communicate with the child for the six months immediately preceding the adoption petition—where the parent was not prevented from doing so by the custodial party. The court held that the record amply supported the circuit court’s finding that K.M. did not abandon R.E.H. because the father’s own admitted conduct in blocking visitation and ignoring the mother’s requests for contact prevented K.M. from exercising her court-ordered rights.
The court rejected the petitioners’ argument that the circuit court improperly ignored the child’s best interests by focusing on the abandonment analysis. The court explained that a non-consenting parent’s abandonment is a statutory prerequisite to adoption without parental consent under § 48-22-301(b)(2), and the best-interests inquiry cannot substitute for satisfying that threshold requirement. The court also rejected the argument that the circuit court erred by limiting its analysis to the six-month statutory period, noting that the court properly considered the parties’ conduct throughout the child’s life to assess the mother’s credibility and intentions, consistent with the court’s prior decision in In re Adoption of H.G., 246 W. Va. 105, 866 S.E.2d 170 (2021).
The court further dismissed the petitioners’ permanency argument, finding that because the mother did not challenge the father’s continued custody of the child, the child already had the stability and permanency available to children of non-cohabitating parents. The petitioners’ remaining argument—that the circuit court granted the mother a “pseudo-disposition five” period—was declined for failure to cite any supporting authority.
Key Takeaways
- A custodial parent who unilaterally blocks a biological parent’s court-ordered visitation cannot use that parent’s resulting absence to establish abandonment as grounds for stepparent adoption without consent.
- Best-interests-of-the-child considerations do not override the statutory abandonment analysis; abandonment under W. Va. Code § 48-22-306(a) is a threshold requirement, not merely one factor among others.
- A circuit court may consider a parent’s conduct outside the six-month statutory abandonment window to assess credibility and intent, but that window governs whether the presumption of abandonment is triggered.
- A parent’s financial inability to provide support, or a custodial parent’s interference with communication, negates the presumption of abandonment.
Why It Matters
This decision reinforces that custodial parents cannot manufacture the legal conditions for a stepparent adoption by stonewalling a biological parent’s access to her child. The father here admitted to cutting off visitation without court approval and ignoring years of the mother’s contact requests—and then filed for adoption the day after the mother finally moved to enforce her rights. The court’s refusal to reward that conduct sends a clear signal that self-help interference with court-ordered visitation will not satisfy the abandonment standard, regardless of how long the absence ultimately lasted.
The case is also a practical reminder for family law practitioners that stepparent adoption petitions filed contemporaneously with—or in direct response to—a biological parent’s enforcement action may face heightened scrutiny. Courts will look at the full picture of who was responsible for the absence of contact, and a custodial parent’s admissions at the hearing can be decisive.