SER Smith v. Abbott
Annotate this Case
January 1992 Term
___________
No. 20854
___________
STATE OF WEST VIRGINIA EX REL. NAOMA LEE SMITH,
Petitioner,
v.
HONORABLE W. ROBERT ABBOTT, JUDGE
OF THE CIRCUIT COURT OF FAYETTE COUNTY, AND
CHRISTOPHER DUKE KING,
Respondents
_______________________________________________________
Petition for a Writ of Prohibition
WRIT GRANTED AND CASE REMANDED FOR ENTRY OF
AN ORDER CONSISTENT WITH THIS OPINION
_______________________________________________________
Submitted: March 3, 1992
Filed: May 15, 1992
James M. Cagle
Charleston, WV
Attorney for the Petitioner
Carl L. Harris
Blake & Harris
Fayetteville, WV
Attorney for the Respondent,
Christopher Duke King
JUSTICE BROTHERTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "Mere delay will not bar relief in equity on the
ground of laches. 'Laches is a delay in the assertion of a known
right which works to the disadvantage of another, or such delay as
will warrant the presumption that the party has waived his right.'"
Syllabus point 2, Bank of Marlinton v. McLaughlin, 123 W.Va. 608,
17 S.E.2d 213 (1941).
2. Where the natural parent fails to exercise his
statutory right to contest an adoption performed without the
consent of that natural parent under W.Va. Code § 48-4-6(a) (1979),
the equitable doctrine of laches may apply to bar any attempt to
invalidate that adoption order.
Brotherton, Justice:
The petitioner, Naoma Lee Smith, invokes the jurisdiction
of this Court in a petition for a writ of prohibition to prevent
the Circuit Court of Fayette County from granting the respondent's
motions for custody or increased visitation, and also asks that the
petitioner be named the exclusive parent with legal custody of the
child.
The respondent, Christopher Duke King, opposes Smith's
petition and asks that the final adoption decree entered on March
30, 1983, be set aside and that he be awarded the care, custody,
and control of the child, R.B. In the alternative, he argues that
he be awarded increased visitation rights. Finally, he requests
that the Court hold the petitioner, Naoma Smith, in contempt of
court for "willful and contumacious violation of the terms of the
final adoption decree" for failing to have the child known by the
surname King and for
allowing only
limited visitation, and that Ms. Smith be required to pay the
petitioner's attorneys fees and court costs.
The subject of this petition is a minor child known alternatively as R.B. King and R.B. Smith. He was born on April 14, 1982, in Raleigh County, the natural child of Deborah Lynn Ingram. The petitioner, Ms. Smith, however, took the child home
from the hospital. On April 19, 1982, Deborah Ingram consented to
the adoption of R.B. by Ms. Smith and consented to the change of
his last name to Smith. At that time, she identified Christopher
Duke King as the putative father of the child. Mr. King questioned
the paternity of the child and submitted to blood tests, which
eventually showed that he was, in all probability, the father of
the child. On February 17, 1983, after the test results were
obtained, Mr. King, acting by counsel, objected to the adoption and
prayed for custody of R.B. However, Judge Abbott permitted the
adoption of R.B. by Ms. Smith after severing the natural mother's
parental rights. However, he failed to sever Mr. King's parental
rights and provided Mr. King with visitation.See footnote 1 The court, on its
own motion, ruled that the child's surname was King, not Smith as
requested by the petitioner. Finally, the court ruled that Mr.
King did not have to pay support, despite having visitation rights.
Since the adoption, R.B. has lived with the petitioner
and her two daughters. He is currently a student in the fourth
grade an elementary school in Fayette County, West Virginia. There
has been no allegation that Ms. Smith has been anything but an
excellent mother to R.B. Mr. King has resided in North Carolina
since 1983. Since the adoption, the respondent King has visited
the child approximately fifteen times in nine years and taken the
child out to buy birthday and Christmas gifts. However, he has
never provided any child support for R.B.
Although no date is given, the respondent King has
married Deborah Ingram, the natural mother of R.B. They have two
girls, who are the natural sisters of R.B. Thus, in 1991, King
petitioned for modification of the adoption decree, asking that the
March 30, 1983, adoption decree be set aside, or in the alternative
that visitation be enforced according to the rules found in the
Circuit Court of Fayette County. He also asked that Ms. Smith be
held in contempt for allegedly violating the terms of the final
adoption decree regarding visitation and the child's name. Mr.
King stated that he was "now gainfully employed and living in a
stable family relationship with the mother of the infant who is the
subject of this action and their two daughters, the natural sisters
of the infant, R.B. King."
Judge Abbott entered an order dated November 14, 1991, in which he stated that King was entitled to visitation during the
weekend beginning November 15, 1991, which would not include
overnight visitation. Beginning March 13, 1992, the petitioner was
entitled to one overnight visitation. The petitioner was also
permitted to have overnight visitation at his residence in the
State of North Carolina beginning June 19, 1992. The petitioner
was permitted to have R.B. for a one week period during the summer
of 1992. The visitations were to continue monthly thereafter as
the parties deem appropriate and major holidays shall be
alternated. The court also ruled that the respondent violated the
prior order of the court in that the child is known as R.B. Smith
instead of R.B. King. Finally, the order states that the child and
the petitioner should have unlimited telephone contact. This
petition for a writ of prohibition states the petitioner's
objections to that order.
As in any situation involving the welfare of minor children, the paramount concern in this adoption case is what is in the best interests of the child. "[T]he welfare and best interest of the child should be the determinant of who should receive . . . custody." In re Custody of Cottrill, 176 W.Va. 529, 346 S.E.2d 47, 50 (1986); see also, Davis v. Hadox, 145 W.Va. 233, 114 S.E.2d 468 (1960). Mr. King's desire to invalidate the adoption order did not take its present form until after his marriage to R.B.'s natural mother, who voluntarily severed all parental rights nine years ago. Invalidating the 1983 adoption decree and giving custody to the respondent would, in essence, allow the natural mother to avoid her
surrender of parental rightsSee footnote 2 and threaten the relationship
developed by the adoptive mother with R.B. over his first nine
years of life.
Chapter 48, Article 4 of the West Virginia Code provides
the parameters within which an adoption is considered valid. West
Virginia Code § 48-4-1(b)(1) (1979) defines consent in an adoption
case:
(1) In the case of a child sought to be
adopted, the written consent, duly
acknowledged, of the mother and father (in the
case of an illegitimate child, the mother and
the determined father) or the surviving parent
of such child sought to be adopted must be
obtained and presented with the petition
. . . .
In this case, it is quite obvious that W.Va. Code § 48-4-1(b)(1) was not complied with by the court at the time of the adoption, since Mr. King, who objected to the adoption, never gave written consent and the adoption order specifically found that his parental rights were not severed.See footnote 3 Therefore, the original adoption order
was technically invalid. This finding, however, does not
automatically place custody in the hands of the natural father.
West Virginia Code § 48-4-6 (1979) provides the method by
which an adoption can be revoked. Subsection (a) provides:
(a) A parent or guardian of a legitimate
child, or the mother or determined father or
guardian of an illegitimate child who did not
consent to the adoption of such child, any
parent including the determined father of an
illegitimate child entitled to notice as
provided in subdivision (1), subsection (b),
section one [§ 48-4-1] of this article who was
not served with notice as provided in said
subdivision (1), or any father of an
illegitimate child entitled to notice as
provided in subsection (b), section one [§ 49-3-1], article three of chapter forty-nine, who
was not served with notice as provided in said
subsection (b) may, at any time within one
year after learning of or having reasonable
opportunity to learn of the adoption, apply by
petition to the court in which the adoption
was granted, praying that the adoption be
vacated. The court to which such application
is made shall fix a date and time for a
hearing, shall cause notice thereof to be
given to the person or persons or agency who
were permitted to adopt such minor, and, at
the time so fixed, shall hear the petitioner
and all parties interested, and may vacate or
affirm the adoption in its discretion. Any
party interested may appeal to the supreme
court of appeals from the decision of the
court in the matter, as in other civil cases.See footnote 4
Other states have recognized that failure to contest an adoption in
a timely manner may preclude even a natural parent from bringing a
subsequent action to vacate the adoption. In some jurisdictions,
claims of irregularities in the adoption proceedings are barred
unless an action to vacate an adoption is brought within the period
specified by statute.See footnote 5
Even where there is no similar statute, the equitable
doctrine of laches may preclude delayed challenges to an adoption.
In Rodgers v. Rodgers, 184 W.Va. 82, 399 S.E.2d 664, 671 (1990), we
quoted syllabus point 2 of Bank of Marlinton v. McLaughlin, 123
W.Va. 608, 17 S.E.2d 213 (1941):
Laches is a delay in the assertion of a
known right which works to the disadvantage of
another, or such delay as will warrant the
presumption that the party has waived his
right.
See also, Kuhn v. Shreeve, 141 W.Va. 170, 89 S.E.2d 685 (1955); Pownall v. Cearfoss, 129 W.Va. 487, 40 S.E.2d 886 (1946). It has been held that the defense of laches is sustainable only on proof
of two elements: (1) lack of diligence by the party against whom
the defense is asserted, and (2) prejudice to the party asserting
the defense. Mogavero v. McLucas, 543 F.2d 1081 (4th Cir. 1976).
See also, Maynard v. Board of Education of Wayne County, 178 W.Va.
53, 357 S.E.2d 246 (1987); Laurie v. Thomas, 170 W.Va. 276, 294 S.E.2d 78 (1982); Bank of Mill Creek v. Elk Horn Coal Corp., 133
W.Va. 639, 57 S.E.2d 736 (1950).
Other jurisdictions have applied the principles of laches
to prevent a natural parent from contesting an adoption after a
period of delay.See footnote 6 The overriding concern in all of these cases is
the welfare of the child. In In re Adoption of Frantz, 515 P.2d 333 (Ariz.App. 1973), the court quoted the following language from
In re Adoption of Hammer, 487 P.2d 417 (1971), as a reason for
enforcing an adoption decree:
"[T]here must be an end to the emotional
stress and strain that is involved in the
natural parents' attempt to regain custody of
their child. The strain is particularly acute
to the adoptive child itself, who may have
established strong bonds of affection and love
for the adoptive parents, and to the adoptive
parents who must suffer the spectre of losing
their child."
Frantz, 515 P.2d at 335. Moreover, in In re Adoption of Miller,
436 N.E.2d 611, 617 (Ill.App. 1982), the court reiterated that:
[A] parent's interest in his child "is not a
passing fancy, not something that should occur
to a parent almost as an afterthought or wait
until the circumstances become absolutely ripe
or most propitious." Rather it is "something
that must be attended to immediately; not just
for your own concern, but for the concerns of
the child."
Consequently, in determining whether laches applies to bar a
challenge to an adoption by a natural parent, courts have
considered the length of time the child has resided with the
adoptive parents, whether the natural parent has maintained contact
with and/or supported the child, and whether the natural parent was
aware of and acquiesced in the adoption.See footnote 7
In this case, R.B. has lived with his adoptive mother for nine years, since he was four days old. The natural father visited the child once or twice a year for a short period of time. Although he occasionally took R.B. out to buy birthday and
Christmas gifts, there is no evidence in the record that he made
any attempt to provide support. Perhaps most persuasive to this
Court is the fact that the natural father was completely aware of
the adoption and, despite his initial objection, failed to make any
attempt to obtain custody until recently, after he married the
natural mother. It is obvious to this Court that the natural
father's lack of diligence in asserting his objection to the
adoption resulted in prejudice to the adoptive mother after nine
years of believing R.B. was legally adopted. Consequently, we
conclude that where the natural parent fails to exercise his
statutory right to contest an adoption performed without the
consent of that natural parent under W.Va. Code § 48-4-6(a) (1979),
the equitable doctrine of laches may apply to bar any attempt to
invalidate that adoption order.
Finality is of the utmost importance in an adoption. In Wooten v. Wallace, 177 W.Va. 159, 351 S.E.2d 72 (1986), this Court stated that "no normal couple would undertake to adopt a child and risk establishing the supreme ties of affection and concern that exist between parents and child if they were in constant jeopardy of having their child ripped from their arms by a returning natural parent." Id. at 75. Despite the flawed adoption order, it is much too late in R.B.'s life to correct the mistake. As an innocent victim of the court's failure to comply with the statute, he deserves the security a final ruling in this case will bring. The best interests of the child are, as always, our primary concern.
Thus, we find that Mr. King acquiesced to the adoption in failing
to exercise his rights under the statute.See footnote 8 Therefore, any attempt
to overturn the 1983 adoption order must be denied. We hesitate,
however, to completely terminate Mr. King's relationship with R.B.
after nine years, because he has maintained some contact with the
child. While the increased visitation granted in the November 14,
1991, order is improper, especially in light of the fact that the
natural mother would also have visitation with the child, the
visitation within Ms. Smith's home or a place mutually agreed upon
between the parties is still permitted.
Furthermore, it was error for the circuit court, sua
sponte, to order that the child be named King when no such motion
was made on the record. The only motion on the record was one
requesting that the child's name be changed to that of the adoptive
family, Smith. Thus, for sake of continuity and simplicity, the
child's name should be legally changed to Smith, as originally
requested in 1983.
Accordingly, we grant Ms. Smith's petition for a Writ of Prohibition and rule that the November 14, 1991, order of the
Circuit Court of Fayette County was improper, and this case is
remanded to the Circuit Court of Fayette County for entry of an
order consistent with this opinion.
Writ granted, case remanded for entry of
an order consistent with this opinion.
Footnote: 1That portion of the adoption order which maintained the
parental rights of Mr. King reads as follows:
The court finds that the said Christopher Duke King is the natural father of the said infant and that his natural paternal rights are not to be severed by the entering of this adoption decree and that said Christopher Duke King shall have the right of liberal and reasonable visitation to the infant child, upon proper notice. Said visitation to take place at the home of the petitioner or at any other location mutually agreed upon by the petitioner and the said Christopher Duke King. . . . Christopher Duke King shall not be required to pay child support. Footnote: 2At least one other state has held such an attempt improper. In Application of Ashmore, 293 S.E.2d 457 (Ga.App. 1982), the Georgia Court of Appeals denied the natural father's petition to legitimate the child where the father had not shown sufficient parental interest, where the natural mother had surrendered her rights to the adoption agency, and because the father's motive in bringing the petition was to nullify the natural mother's surrender of parental rights following the marriage of the natural mother and father. Footnote: 3This Court has no doubt that the 1983 adoption order was the result of an agreement between both parties' attorneys and the Court. While that agreement resulted in a settlement of the dispute at that time, it was in clear contravention of the statute and merely delayed the ultimate decision of custody until now, when
the passage of time has infinitely complicated the issues. No agreements such as this must ever occur in place of compliance with the statutory requirements of W.Va. Code § 48-4-1 et seq. Footnote: 4The current version of this Code section, W.Va. Code § 48-4-12(a) (1984), contains substantially the same provisions. Footnote: 5See, e.g., Walter v. August, 8 Cal. Rptr. 778 (Cal.App. 1 Dist. 1960) (statute requiring claims for procedural irregularities to be brought within three years and for other irregularities within five years of the adoption decree); Matter of Neagos, 439 N.W.2d 357 (Mich. 1989) (statute requiring action to be brought within four years of final decree); Matter of Adoption of R.M.P.C., 512 So. 2d 702 (Miss. 1987) (statute prohibiting action from being brought more than six months after adoption decree); Matter of Adoption of Lori Gay W., 589 P.2d 217 (Okla. 1978), cert. denied, 441 U.S. 945, 99 S. Ct. 2165, 60 L. Ed. 2d 1047 (1979) (statute prohibiting challenge to adoption more than one year after final decree); Garcia v. DeEnriquez, 313 S.W.2d 918 (Tex.Civ.App. 1958) (statute requiring suits to be brought within four years of final decree). See also, Petition for Revocation of a Judgment for Adoption of a Minor, 471 N.E.2d 1348 (Mass. 1984). Footnote: 6See In re Adoption of Frantz, 515 P.2d 333 (Ariz.App. 1973) (natural father's claim that consent to adoption was invalid barred by laches where claim was not raised until over two years after consent signed and over one year after final decree); Ehrhart v. Brooks, 201 S.E.2d 464 (Ga. 1973) (natural mother's challenge to adoption barred by laches where challenge not raised until almost four years after learning of adoption); In re Adoption of Miller, 436 N.E.2d 611 (Ill.App. Dist. 1, 1982) (natural father's action to vacate adoption, filed twenty-one months after learning of adoption, barred by laches); Rodriquez v. Koschny, 373 N.E.2d 47 (Ill.App. Dist. 1, 1978) (natural mother's petition to vacate adoption barred by laches where mother failed to make reasonable efforts to learn child's whereabouts for seven years following adoption and did not file petition until one year later). Footnote: 7When presented with a similar fact situation in B.B. v. S.S. & J.S., 468 P.2d 859 (Colo. 1970), the Colorado court refused to vacate an adoption decree in favor of the natural father. The child was given up for adoption upon consent of the natural mother. The natural father did not consent and initially contested the adoption. He failed to appear for the hearing, however, and his attorney notified the court that the father would not oppose the adoption. Less than five months later, the natural father changed his mind and filed a motion to vacate the adoption decree. The court concluded that the father's election not to contest the adoption amounted to implied consent and ruled that it would not be in the best interests of the child to vacate the decree. Footnote: 8Other states have examined cases involving flawed adoptions and come up with similar results. In Petition of Negron, 337 N.E.2d 375 (Ill.App.Dist. 1, 1975), the Illinois Appeals Court ruled that an unwed father who had contributed to the child's support in only three of her eleven and one-half years and waited two years post-adoption to attack the adoption proceedings was not entitled to a vacation of the adoption decree despite the fact he had not been given notice of the adoption proceedings.
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