Richard Sell and Diane Sell v. Benito Palmarini ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RICHARD JAMES SELL and
DIANE LYNN SELL
MEMORANDUM OPINION * BY
v. Record No. 2946-96-1 JUDGE NELSON T. OVERTON
SEPTEMBER 23, 1997
BENITO MARTIN PALMARINI
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Morris B. Gutterman, Judge Designate
David T. Daulton (The Berean Law Group, on
brief), for appellants.
No brief or argument for appellee.
Richard J. Sell appeals from a decision of the trial court
denying his petition for adoption of Courtney Lee
Brooks-Palmarini, the natural child of Diane Sell and Benito
Palmarini. For the reasons that follow, we reverse and remand
for proceedings consistent with this opinion.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, we recite only those facts necessary to the
disposition of this appeal.
In 1984 Courtney Brooks-Palmarini was born to Benito
Palmarini and Diane Brooks, now Diane Sell. Mr. Palmarini
claimed paternity of the child, but Courtney has been in the care
of her mother since birth and has lived with both her mother and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mr. Sell since they were married in 1988. Mr. Palmarini was
awarded visitation in 1990 and was ordered to pay child support
in 1991. The record does not give a full picture of the
relationship between Mr. Palmarini and Courtney, but the evidence
presented at trial indicates that they enjoyed a good deal of
contact. Whatever the quality of the relationship was before
1993, it is clear that after June 1993 Courtney's feelings for
her father changed. Subsequent to a two week summer vacation
with her father she wrote him a letter stating that "I never want
to hear from you again not even see you because I don't love you
anymore." These negative feelings were due to friction between
Courtney and Mr. Palmarini which occurred during the vacation.
After Courtney made her feelings known, Richard Sell filed a
petition for adoption in the City of Virginia Beach Circuit
Court. At the adoption proceeding, the trial court took evidence
from both parties and denied the petition. It cited Mr.
Palmarini's good record of support payments and a reluctance "to
sever ties of a blood relationship" as reasons for the denial.
Mr. Sell appeals.
In order for an adoption to be granted, Code § 63.1-225
requires the consent of both natural parents unless an exception
applies. Code § 63.1-225(F) creates an exception when the court
has determined that consent is withheld against the best
interests of the child. The standard which courts must follow
when making that determination is set out in Code § 63.1-225.1
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which states in pertinent part:
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.
It is in this determination that Mr. Sell ascribes error. He
contends that the trial court failed to consider the statutorily
mandated factors when determining Courtney's best interests.
After careful consideration of the record, we agree.
"Absent clear evidence to the contrary, we will presume that
the trial judge applied the correct standard to the facts."
Starks v. Commonwealth, 225 Va. 48, 54, 301 S.E.2d 152, 156,
(1983) (citing Yarborough v. Commonwealth, 217 Va. 971, 978, 234
S.E.2d 286, 291 (1977)). However, in the instant case, the trial
court cited only two reasons for making its determination; Mr.
Palmarini's fulfillment of his financial obligations and his
disinclination to separate blood relatives. While these are
important, relevant factors, they must be considered in light of
all the elements mandated by Code § 63.1-225.1. See Hickman v.
Futty, 25 Va. App. ____, ____, ____ S.E.2d ____, ____ (1997).
Although we recognize that the trial court may, in fact, have
considered these elements, its failure to state on the record
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that they were considered constitutes "clear evidence" that the
proper standard was not applied in this case, and the petition
was prematurely denied.
We therefore reverse the decision of the circuit court and
remand for consideration of the petition in a manner not
inconsistent with this opinion.
Reversed and
remanded.
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