Kenneth Peters, Jr. v. James and Detra Hagerman ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KENNETH PETERS, JR.
MEMORANDUM OPINION *
v. Record No. 2901-98-4 PER CURIAM
JUNE 22, 1999
JAMES HAGERMAN AND
DETRA HAGERMAN
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
(John J. Wall; Farrell & Croft, P.C., on
brief), for appellant.
(Robert H. Klima, on brief), for appellees.
Finding that Kenneth Peters, Jr. withheld his consent to the
adoption of his biological child contrary to the best interests of
the child, the trial judge ordered that James and Detra Hagerman
are authorized to proceed with their petition to adopt the child.
Peters contends that the trial judge erred by (1) admitting into
evidence a home study report; (2) finding that clear and
convincing evidence proved that the Hagermans did not thwart
Peters' contact with the child, that Peters' continued
relationship with the child was detrimental, and that removal of
the child from the Hagermans' home would be harmful to the child;
(3) referring to the record of the juvenile and domestic relations
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
district court while hearing the matter de novo; and (4) finding
that Peters was properly before the trial court. Upon reviewing
the record and briefs of the parties, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
This matter initially was commenced in the juvenile and
domestic relations district court where an order was entered
deciding various issues concerning the custody of the child.
Peters appealed to the circuit court only the ruling that his
consent to adoption of the child by the Hagermans was withheld
contrary to the best interest of the child.
The evidence was received during an ore tenus hearing in
the circuit court. Peters was incarcerated at the time of the
hearing and was represented by a guardian ad litem. The record
on appeal includes the written statement of facts submitted by
Peters, as corrected and supplemented by the trial judge.
"In matters of a child's welfare, trial
courts are vested with broad discretion in
making the decisions necessary to guard and
to foster a child's best interests." The
trial court's judgment, "when based on
evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or
without evidence to support it."
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,
409 S.E.2d 460, 463 (1991) (citations omitted).
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Issue One
Peters contends that the home study report prepared by
Bethany Christian Services was inadmissible hearsay and that the
trial judge erred by admitting it into evidence. Code
§ 63.1-220.3 specifies procedures that are required in cases of
adoption when a parent has placed his or her child directly with
the prospective adoptive parents. Code § 63.1-220.3(B)(6)
requires that a "licensed or duly authorized child-placing
agency" conduct a home study of the prospective adoptive home
and that the agency "provid[e] to the court a report of such
home study, which shall contain the agency's recommendation
regarding the suitability of the placement." Thus, the statute
specifically authorized and required that a home study report be
filed with the trial court. The report prepared by Bethany
Christian Services was filed pursuant to that statute.
Therefore, Peters' hearsay objection to the admission of the
home study report is without merit.
Issue Two
Peters contends that the trial judge erred in ruling that
clear and convincing evidence demonstrated that he was
withholding his consent contrary to the best interests of the
child. We disagree.
"Adoption of a child may be ordered without the consent of
the child's birth parent if that parent's consent to the
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adoption is being withheld 'contrary to the best interests of
the child as set forth in [Code] § 63.1-225.1.'" Hickman v.
Futty, 25 Va. App. 420, 426, 489 S.E.2d 232, 234 (1997) (citing
Code § 63.1-225(F)). Code § 63.1-225.1 provides, in pertinent
part, as follows:
In determining whether the valid consent of
any person whose consent is required is
withheld contrary to the best interests of
the child, . . . the court shall consider
whether the failure to grant the petition
for adoption would be detrimental to the
child. In determining whether the failure
to grant the petition would be detrimental
to the child, the court shall consider all
relevant factors, including the birth
parent(s)' efforts to obtain or maintain
legal and physical custody of the child,
whether the birth parent(s)' efforts to
assert parental rights were thwarted by
other people, the birth parent(s)' ability
to care for the child, the age of the child,
the quality of any previous relationship
between the birth parent(s) and the child
and between the birth parent(s) and any
other minor children, the duration and
suitability of the child's present custodial
environment and the effect of a change of
physical custody on the child.
Under the statute, "not only must the prospective adoptive
placement serve the child's best interests, but the continued
relationship with the non-consenting parent must prove to be
detrimental." Hickman, 25 Va. App. at 431, 489 S.E.2d at 237.
Applying this standard, we have held as follows:
Detriment is determined, as it was under the
prior case law, by considering the
non-consenting parent's fitness, or ability,
to parent the child as well as the
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relationship the non-consenting parent
maintains with the child and other children,
if any. That relationship, as it was under
the prior case law, is evaluated in terms of
the non-consenting parent's willingness to
provide for the child, that parent's record
of asserting parental rights, taking into
consideration the extent to which, if any,
such efforts were thwarted by other people,
and the quality of the parent-child
relationship.
Id. at 431-32, 489 S.E.2d at 237.
The trial judge reviewed the evidence pursuant to the
statutory factors. The uncontested evidence established that
Peters was incarcerated on state and federal drug and gun
charges before the child's birth. He has been sentenced to
incarceration in prison for a period of forty-seven years.
According to the testimony of Peters' mother, Peters planned for
the child to live with her and her husband until his release
from prison. His mother testified that Peters had a good
relationship with his two other children. The trial judge was
entitled to place little weight on the testimony of Peters'
mother. Indeed, the evidence proved that at the time of the
hearing, Peters did not have custody of either of his other two
children. It was undisputed that the child whose adoption was
pending had no relationship with Peters or his other children.
While Peters contended that the prospective adoptive
parents thwarted his relationship with the child, the trial
judge found no evidence to support that contention. The
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Hagermans admitted that they did not seek out Peters or attempt
to initiate contact with him or keep him informed concerning the
child's life. The failure to take affirmative action to
establish a relationship which the prospective adoptive parents
viewed as not in the child's best interests is not the same as
affirmatively erecting barriers to keep Peters away from the
child. No evidence indicated that the Hagermans barred Peters
from contact with the child. The evidence proved Peters was
incarcerated in Texas. Thus, Peters' inability to see the child
and parent him was a result of his own actions, not that of the
Hagermans. We hold that the evidence supported the trial
court's finding that clear and convincing evidence proved the
Hagermans did not thwart Peters' relationship with the child.
Peters was not in a position at the time of the hearing or
in the immediate future to have custody of or to provide support
for any of his children. On the other hand, the evidence
indicated that the prospective adoptive parents had established
a loving relationship with the child and had both the emotional
and physical ability to provide the child with a good home. The
trial judge's finding that Peters withheld consent to the
adoption contrary to the child's best interests was supported by
the evidence.
Peters contends the trial judge's ruling amounted to a
finding that an incarcerated father who objects to the adoption
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of his child withholds his consent, as a matter of law, contrary
to the child's best interests. We find no basis for that
contention. Each case must be determined based upon its unique
facts. The trial judge decided this case based solely on the
current circumstances of the adoptive parents compared with
those of Peters, who as an unmarried father sentenced to over
thirty years in prison has never seen the child whose adoption
is pending and who cannot realistically provide physical custody
or support for an undetermined number of years. See generally
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.
333, 417 S.E.2d 1 (1992).
Issue Three
Peters contends the trial judge committed reversible error
by accepting into evidence the home study report initially
submitted to the district court. He alleges that this action
demonstrated that the trial judge failed to conduct a hearing de
novo.
Nothing in the record indicates that the trial judge
improperly deferred to the finding of the juvenile court or
otherwise failed to require proof meeting the standard of clear
and convincing evidence. We note that this appeal concerned
only one of several issues decided by the juvenile court. The
unappealed rulings of the juvenile court were final and binding
on the parties. Furthermore, as noted above, the trial judge
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did not err by accepting into evidence the home study report
required by law to be submitted to the trial court.
Issue Four
Peters also contends that the trial judge lacked
jurisdiction because he was not present at the hearing. Peters
concedes that he was represented by a guardian ad litem.
Furthermore, he cites no authority for his assertion that
representation by a guardian ad litem was "separate and distinct
from [Peters'] 'opportunity to appear before the court,'" and we
find no support for that assertion in either statutory or case
law. See generally Code §§ 8.01-2 and 8.01-9.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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