Thomas Boyce v. Brian Samuel Bush ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
THOMAS BOYCE, ET AL.
v. Record No. 2044-96-3
BRIAN SAMUEL BUSH MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
CYNTHIA BOYCE BUSH APRIL 29, 1997
v. Record No. 2045-96-3
BRIAN SAMUEL BUSH
FROM THE CIRCUIT COURT OF LEE COUNTY
William C. Fugate, Judge
Charles L. Bledsoe (Bledsoe & McAfee, P.C.,
on briefs), for appellants.
Terry G. Kilgore (Kilgore & Baker, on brief),
for appellee.
This is a child custody dispute between the child's natural
mother and grandparents and the child's former stepfather. The
sole issue presented is whether the trial court erred in finding
that the child's best interests would best be served by awarding
temporary custody to her former stepfather. Finding no error, we
affirm.
"On review, '[a] trial court is presumed to have thoroughly
weighed all the evidence, considered the statutory requirements,
and made its determination based on the child's best interests.'"
Logan v. Fairfax County, 13 Va. App. 123, 128, 409 S.E.2d 460,
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
463 (1991) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 795 (1990)). "[T]he evidence is viewed in the light
most favorable to the prevailing party below and its evidence is
afforded all reasonable inferences fairly deducible therefrom."
Id. In matters concerning the welfare of a child, "trial courts
are vested with broad discretion in making the decisions
necessary to guard and to foster a child's best interests."
Farley, 9 Va. App. at 328, 387 S.E.2d at 795. When based on
evidence heard ore tenus, the trial court's judgment will not be
disturbed on appeal unless plainly wrong or without evidence to
support it. Id. at 328, 387 S.E.2d at 795-96.
Cynthia Boyce Bush (mother) and Brian Samuel Bush
(step-father) were married on September 16, 1994. At the time of
the marriage, mother was sixteen and stepfather was twenty-three.
Prior to the marriage, mother gave birth to Demi Shontey Boyce
(Shontey) whose natural father's identity was unknown. Mother
left the marital residence in February 1995, and took the child
with her. The evidence established that she left Shontey with
her father, Thomas Boyce (Thomas), and stepmother, Esther Boyce
(Esther), and moved in with a friend. For a period of
approximately three to four months, from mid-April through July
1995, while Shontey was in the care of Thomas, mother visited the
child only four times for a total of ten to fifteen minutes.
Mother voluntarily relinquished custody of Shontey to Thomas in
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July 1995, and left the area. 1
Following the parties' separation, on June 21, 1995 step-
father petitioned for custody of Shontey. The Department of
Social Services (DSS) conducted a court ordered home study that
indicated that stepfather "appears to be a very levelheaded and
responsible young man" who is "able and capable of providing care
for his stepdaughter . . . ." Also, in June 1995, DSS conducted
a home study of Thomas and Esther's home and concluded that
"Esther and Thomas Boyce are capable of providing appropriate
care and an environment for the child."
In August 1995, DSS attempted to do a home study of mother.
The social worker was unable to complete the study because she
was unable to locate mother, who had moved to North Carolina in
July 1995. The social worker stated that "[t]his agency also
feels that Ms. Bush's life style displays her inability to care
and provide for the subject child." The social worker concluded
that,
[b]ased on the information provided by Ms.
Bush, it is this worker's impression that she
is not capable of providing the adequate care
and supervision that the subject child will
need and require at this time. It also
appears that Ms. Bush has several areas of
her own life that she needs to address and
improve before she can even attempt to
effectively parent the subject child.
In August 1995, mother was diagnosed with cancer, and
underwent an emergency hysterectomy. She did not return to
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Mother also petitioned the juvenile and domestic relations
district court to place Shontey in Thomas' custody. The court
granted this request, and awarded temporary custody to Thomas and
visitation to stepfather.
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Thomas' home until March or April 1996. The parties were
divorced by order dated nunc pro tunc May 8, 1996.
The trial court conducted an ore tenus hearing on July 11,
1996, and awarded custody of Shontey to stepfather. No
transcript of that hearing is provided. However, the parties
agree that the court's order and the attached home studies supply
sufficient evidence for review. The court made the following
relevant findings in an order dated August 6, 1996:
That both parties, Cynthia Boyce Bush,
the natural mother, and Brian Samuel Bush,
the stepfather, are fit and proper parents,
capable of caring for the minor child, Demi
Shontey Boyce.
* * * * * * *
That a homestudy on Brian Samuel Bush
. . . was performed at the request of the
Court and determined to be a suitable
environment for the child.
* * * * * * *
That as a result of her illness, there
are times when Cynthia Boyce Bush needs
assistance with the care of her infant child
. . . , and it is provided by her father and
stepmother . . . .
That a homestudy on the Thomas and
Esther Boyce household, the maternal
grandfather and stepgrandmother of Demi
Shontey Boyce was performed at the request of
the Court and determined to be a suitable
environment for the child.
* * * * * * *
The Court, after consideration of the
factors contained in Virginia Code Section
20-124.3 as it relates to the best interest
of the child, finds that the best interests
of the child, by clear and convincing
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evidence would be served by granting
temporary custody of the child, in accordance
with [the court's findings], Demi Shontey
Boyce to Brian Bush, the former stepparent
. . . .
"In a custody dispute between a parent and a non-parent,
'the law presumes that the child's best interests will be served
when in the custody of its parent.'" Bottoms v. Bottoms, 249 Va.
410, 413, 457 S.E.2d 102, 104 (1995) (quoting Judd v. Van Horn,
195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)). "In all child
custody cases, including those between a parent and a non-parent,
'the best interests of the child are paramount and form the
lodestar for the guidance of the court in determining the
dispute.'" Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826
(1986) (quoting Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d
195, 198 (1962)).
In order to overcome the presumption favoring a parent, "the
nonparent must adduce by clear and convincing evidence that: (1)
the parents are unfit; (2) a court previously has granted an
order of divestiture; (3) the parents voluntarily relinquished
custody; (4) the parents abandoned the child; or (5) special
facts and circumstances constitute extraordinary reasons to take
the child from the parents." Mason v. Moon, 9 Va. App. 217, 220,
385 S.E.2d 242, 244 (1989). "Once the presumption favoring
parental custody has been rebutted, the parental and non-parental
parties stand equally before the court, with no presumption in
favor of either, and the question is the determination of the
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best interests of the child according to the preponderance of the
evidence." Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208,
211 (1991).
"Abandonment of a child without justification establishes
parental unfitness. When abandonment exists in a custody dispute
between a parent and another, the general rule becomes operative
and the child's welfare is the dominant and controlling factor."
Patrick v. Byerly, 228 Va. 691, 694-95, 325 S.E.2d 99, 101
(1985). "A voluntary relinquishment [of custody] occurs when a
parent willingly agrees or consents to having their child placed
in the custody of a nonparent." Mason, 9 Va. App. at 222, 385
S.E.2d at 245.
Because the stepfather prevailed at trial, we must view the
evidence and all the reasonable inferences flowing therefrom in
the light most favorable to him. In so doing, the evidence
established that the mother voluntarily relinquished custody of
Shontey to a third party, her father. This action rebutted the
statutory presumption of parental preference, and the general
rule that the child's welfare controls becomes operative.
Sufficient evidence supports the trial court's finding that
"after consideration of the factors in Virginia Code Section 20-
124.3 as it relates to the best interests of the child, . . . the
best interests of the child, by clear and convincing evidence
would be served by granting temporary custody . . . to the former
stepparent." We conclude that the evidence supports this
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finding.
Affirmed.
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