Steve Starkell v. Thomas L Geris & Glenda J Geris ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
STEVE STARKELL
MEMORANDUM OPINION * BY
v. Record No. 2227-01-4 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 26, 2002
THOMAS L. GERIS AND
GLENDA J. GERIS
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
(Timothy W. Barbrow, on brief), for
appellant. Appellant submitting on brief.
No brief or argument for appellees.
No brief or argument by the child's
guardian ad litem.
Steve Starkell appeals from a final order of the trial court
granting the petition of Thomas and Glenda Geris to adopt
Starkell's birth daughter, A.Q.S. Starkell contends the trial
court erred in finding (1) his consent to the adoption was being
withheld contrary to the best interests of the child, (2) his
continued relationship with his daughter would be detrimental to
her welfare, and (3) the adoption was in the best interests of the
child. Finding no error, we affirm the judgment of the trial
court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
The Gerises filed a petition to adopt A.Q.S. on September 14,
2000. The natural mother gave her written consent to the adoption
on September 26, 2000. Starkell refused to consent to the
adoption.
The trial court conducted a hearing on the Gerises' petition
to adopt A.Q.S. on August 6, 2001. 1 The evidence established that
A.Q.S. was born to her unwed parents, Deborah Lynn Bacon and
Starkell, on December 17, 1995. Starkell testified Bacon had drug
problems and he was the child's primary caregiver from her birth
until June of 1997, when he was no longer able to care for the
child. At that time, Starkell left A.Q.S., who was one and a half
years old, with the Gerises, whom he had met only one time
previously. The child has resided with the Gerises continuously
since August of 1997.
Mrs. Geris was awarded temporary custody of A.Q.S. in
November of 1997. Starkell subsequently visited his daughter one
to two times a month for a couple of hours. Because he had no
1
The record in this case contains a written statement of
facts in lieu of a transcript of this hearing.
- 2 -
regular job or place to live, Starkell had very limited overnight
visits. According to Mrs. Geris, Starkell referred to the child
as his "little meal ticket" because he could obtain free meals
from restaurants and strangers when A.Q.S. was with him. Mrs.
Geris was awarded full custody of the child in January of 1999.
On December 10, 1999, Starkell entered Alford pleas to two
counts of aggravated sexual battery and was found guilty of having
sexually abused A.Q.S. between April 1, 1997, and June 30, 1998.
He was sentenced to ten years on each charge, to run
consecutively, with seven years suspended on each charge.
Starkell was also ordered to have no contact with A.Q.S.
Mrs. Geris testified that, soon after A.Q.S. came to live
with her, she noticed that the child exhibited severe emotional
problems. She would not eat, allowed food to sit in her mouth for
up to two hours, often woke up in the night screaming from severe
night terrors, appeared to be developmentally delayed, and was
extremely aggressive. According to Mrs. Geris, the child's
behavior was always worse after visitation with Starkell. Mrs.
Geris also testified that, following the child's visitation with
Starkell, A.Q.S. would describe a sexual game she played with a
man. The child was subsequently diagnosed with Post Traumatic
Stress Disorder resulting from the abuse she suffered from
Starkell.
According to Mrs. Geris, however, the child has received
counseling and has greatly improved. She now sleeps through the
- 3 -
night, eats well, enjoys school, and is a happy, well-adjusted
child. Although A.Q.S. is still developmentally delayed, Mrs.
Geris works with her teachers to assist the child. The child has
also adjusted well to the Gerises' home. She assists with
household chores, including feeding the two horses, and has her
own cat. She is also very attached to the Gerises' six-year-old
son.
The Gerises were married in 1990. It was the second marriage
for both of them. In addition to their six-year-old son, they
both have adult children from their previous marriages. They are
purchasing the home where they have lived together for ten years.
They have a large family support system in the area, and both are
employed, although Mrs. Geris arranges her work schedule to be
home for A.Q.S. and her son, including taking time off in the
summer to be with them.
According to Mrs. Geris, she and Mr. Geris are the only
parents A.Q.S. knows. When shown pictures of her birth mother and
Starkell, A.Q.S. has no memory of them. The child has had no
contact with any other members of Starkell's family since she
began living with the Gerises.
Mrs. Geris, who was forty-eight years old at the time of the
adoption hearing, admitted she had had two of her children removed
from her home when she was in her early twenties because she could
not care for them. She testified she had had a drug problem then
but is no longer using drugs. Mrs. Geris also admitted that one
- 4 -
of her children had been committed to the Department of Juvenile
Justice and that, on one occasion, she had been found in contempt
of court for failing to pay child support. Mr. Geris admitted he
had been convicted of driving under the influence in the early
1990s and again in 1999.
At the adoption hearing, Starkell denied having abused A.Q.S.
and stated he pled guilty to save her from the ordeal of a trial.
He testified the Gerises not only accused him of the abuse charges
in order to win custody of the child but also denied him access to
the child after he had placed her with them. Starkell further
testified the police, prosecutor, and judge, along with the
Gerises, were responsible for his convictions. Starkell also
testified he loves A.Q.S. and wants to have a continuing
relationship with her after he is released from prison. However,
other than to state that, upon his release from prison, he would
find the person who really abused his daughter, Starkell had no
explanation as to how he would have a relationship with A.Q.S.
despite being ordered by the court to have no contact with her.
According to a report of investigation by the Stafford County
Department of Social Services introduced into evidence at the
hearing, the Gerises are suitable parents for adoption and
Starkell's consent to the adoption is being withheld contrary to
A.Q.S.'s best interests. The social worker who prepared the
report observed that Starkell's refusal to consent to the adoption
is "an act of self[ish]ness."
- 5 -
At the conclusion of the hearing, the trial court granted the
Gerises' petition for adoption, finding (1) Starkell's consent to
the adoption was being withheld contrary to the best interests of
the child, (2) Starkell's continued relationship with the child
would be detrimental to the child, and (3) the adoption was in the
best interests of the child.
Starkell challenges those findings on appeal.
II. ANALYSIS
Under familiar principles of appellate review, we consider
the evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Gerises, the parties
who prevailed below. See Farley v. Farley, 9 Va. App. 326, 328,
387 S.E.2d 794, 795 (1990). Thus, all evidence in conflict with
the Garises' evidence must be disregarded. See Garst v.
Obenchain, 196 Va. 664, 668, 85 S.E.2d 207, 210 (1955). When the
trial court's decision is based, as here, on an ore tenus hearing,
it "is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Frye v. Spotte, 4 Va. App. 530, 537, 359 S.E.2d 315, 319-20
(1987). Furthermore, it is well settled that "the trier of fact
ascertains a witness' credibility, determines the weight to be
given to their testimony, and has the discretion to accept or
reject any of the witness' testimony." Anderson v. Anderson, 29
Va. App. 673, 686, 514 S.E.2d 369, 376 (1999).
- 6 -
"An adoption over objection by a natural parent should not be
granted except upon clear and convincing evidence that the
adoption would be in a child's best interest and that it would be
detrimental to continue the natural parent-child relationship."
Frye, 4 Va. App. at 532, 359 S.E.2d at 317. Moreover, "[a]doption
of a child may be ordered without the consent of the child's birth
parent if that parent's consent to the adoption is being withheld
'contrary to the best interests of the child as set forth in
[Code] § 63.1-225.1. 2 '" Hickman v. Futty, 25 Va. App. 420, 426,
489 S.E.2d 232, 234 (1997) (footnote added) (quoting Code
§ 63.1-225(F) 3 ). In making that determination, the trial court
must "consider the child's best interests vis-à-vis both the
prospective adoptive parents and the parent whose consent to the
adoption is being withheld." Id. at 432, 489 S.E.2d at 237.
In determining whether the withholding of consent is contrary
to the child's best interests, the court must "consider whether
the failure to grant the petition for adoption would be
detrimental to the child." Code § 63.1-225.1. In making that
determination, the court must consider "the non-consenting
parent's fitness, or ability, to parent the child as well as the
relationship the non-consenting parent maintains with the child
2
Subsequent to the entry of the final order in this case,
Code § 63.1-225(F) was repealed and reenacted as current Code
§ 63.2-1203.
3
Likewise, Code § 63.1-225.1 was subsequently repealed and
reenacted as current Code § 63.2-1205.
- 7 -
and other children, if any." Hickman, 25 Va. App. at 431, 489
S.E.2d at 237. In evaluating the non-consenting parent's
relationship with the child, the court must consider "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.
Where the evidence reveals that adoption
would be in the child's best interests and
the continued relationship with the
non-consenting parent would be detrimental,
it follows that the failure to grant the
adoption would be detrimental to the child.
In such a case, the conclusion that consent
is withheld contrary to the child's best
interests is compelled.
Id. at 432, 489 S.E.2d at 237-38.
Here, the evidence clearly supports the trial court's finding
that Starkell's continued relationship with A.Q.S. would be
detrimental to the child. Not only did Starkell relinquish
custody of his one-and-a-half-year-old daughter to people he had
met only once before because he was no longer able to care for
her, he was subsequently convicted of having sexually abused his
daughter between April 1, 1997, and June 30, 1998, and ordered to
have no contact with her. Notwithstanding Starkell's speculative
and unsupported claims that "it is possible that the issues which
lead [sic] to the abuse could be dealt with through . . . therapy"
and that he "will be free upon his release to petition the [c]ourt
- 8 -
for . . . modification" of the order prohibiting him from seeing
his daughter, "'past actions and relationships over a meaningful
period serve as good indicators of what the future may be
expected to hold.'" Linkous v. Kingery, 10 Va. App. 45, 56, 390
S.E.2d 188, 194 (1990) (quoting Frye, 4 Va. App. at 536, 359
S.E.2d at 319).
In addition, even were we to assume that Starkell might be
able at some point in the future to "deal with" the issues that
led him to abuse his daughter and to obtain modification of the
order prohibiting him from seeing his daughter, the record offers
no hint as to when, if ever, such events might occur. Indeed, the
fact that Starkell continues to blame others, rather than
himself, for his convictions plainly indicates he has made
little, if any, progress in that regard so far. "It is not in
the best interests of a child to spend a lengthy period of time
waiting to find out when, or even if, a parent will be capable of
resuming his responsibilities." Kaywood v. Halifax County Dep't
of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
The evidence also clearly supports the trial court's finding
that the adoption of A.Q.S. by the Gerises is in the child's best
interests. A.Q.S., who suffered severe behavioral and emotional
problems as a result of Starkell's sexual abuse, has, under the
custody and care of the Gerises, undergone counseling and been
able to recover in large part from that ordeal. She has adjusted
well to life in the Gerises' home, enjoys school, and is attached
- 9 -
to the Gerises' six-year-old son. The Gerises have essentially
rescued A.Q.S. from the trauma caused by Starkell, given her a
nurturing and stable home life that meets her special needs, and
allowed her to have a secure, flourishing childhood. They
continue to provide her with financial and emotional support, and
the child is thriving under their care.
Moreover, the Gerises are the only parents A.Q.S. knows at
this point in her life. Starkell, thwarted from seeing A.Q.S. by
his own criminal behavior, has had no relationship with his
daughter since his conviction. A.Q.S., who was five and a half
years old at the time of the hearing, knows little if anything
about Starkell and certainly has no awareness of him as her
father.
Starkell argues that "serious questions exist about the
fitness of the Gerises as parents" because of their past problems.
The fact, he argues, that Mrs. Geris had two children from her
first marriage removed from her custody and that Mr. Geris was
recently convicted of driving under the influence is evidence that
the adoption is not in the best interest of the child. We
disagree.
Although Mrs. Geris lost custody of two of her children in
her early twenties, had a drug problem, and was found to be in
contempt of court for failing to pay child support, the evidence
is uncontroverted that she has remedied those problems and has
been a law-abiding, dedicated, and loving mother and caregiver to
- 10 -
her six-year-old son and A.Q.S. Furthermore, although Mr. Geris
was convicted of driving under the influence as recently as 1999,
conduct which clearly causes concern and cannot be condoned, there
is no evidence that his unlawful conduct placed his son or A.Q.S.
in danger or otherwise rendered him unfit as a parent.
Therefore, the record supports the trial court's finding that
the Gerises presented clear and convincing evidence that the
adoption was in A.Q.S.'s best interests and that Starkell's
continued relationship with A.Q.S. would be detrimental to the
child. It necessarily follows, then, that the failure to grant
the adoption would be detrimental to A.Q.S. and that Starkell's
consent to the adoption was being withheld contrary to A.Q.S.'s
best interests. See Hickman, 25 Va. App. at 432, 489 S.E.2d at
237-38.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
- 11 -