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An Overview of Adoption Law
In West Virginia
How are Rights Severed Involuntarily? Parental rights are severed involuntarily in one of the following ways:
- Abuse and Neglect Proceedings
(By Court Order entered before the adoption petition is filed)
- child is in custody of WV Department of Health and Human Resources and is most likely in foster care
Abandonment
(By Court Order entered before or during the adoption process)
- WVDHHR may seek prior to the adoption petition being filed; or
(WV CODE § 49-3-1)
- The petitioner’s lawyer may seek upon filing the adoption petition.
(WV CODE §§ 48-22-102; 48-22-301)
Abandonment: “‘Abandonment’ means any conduct by the birth mother, legal father, determined father, outsider father, unknown father or putative father that demonstrates a settled purpose to forego all duties and relinquish all parental claims to the child.” WV CODE § 48-22-102.
Instances were Abandonment is Statutorily Presumed (WV CODE §48-22-306):
Where the child is over the age of 6 months and the birth parent, throughout an uninterrupted period of 6 months immediately preceding the filing of the adoption petition:
1. Fails to financially support the child within the means of the birth parent; and
2. Fails to visit or otherwise communicate with the child when he/she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person having custody of the child.
Where the child is less than 6 months and the birth father, throughout the uninterrupted period from the time he was told of the conception until the time the adoption petition is filed:
1. Denounces the child’s paternity any time after conception;
2. Fails to contribute within his means toward the expense of the prenatal and postnatal care of the other and the postnatal care of the child;
3. Fails to financially support the child within father’s means; and
4. Fails to visit the child when he knows where the child resides.
What if the father is unknown? Abandonment of a child shall be presumed when the unknown father fails, prior to the entry of the final adoption order, to make reasonable efforts to discover that a pregnancy and birth have occurred as a result of his sexual intercourse with the birth mother.
Compelling circumstances: Notwithstanding the foregoing, a birth parent shall have the opportunity to demonstrate the existence of compelling circumstances, which prevented the birth parent from supporting, visiting, or otherwise communicating with the child. (Incarceration for rape wherein child was conceived is not compelling).
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