Sharon Marie Crockett v. Ronnie and Sabrina McCray

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia
SHARON MARIE CROCKETT
OPINION BY
v. Record No. 1338-01-2 JUDGE JAMES W. BENTON, JR.
MARCH 26, 2002
RONNIE McCRAY AND
SABRINA McCRAY
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
James A. Luke, Judge
Stefan M. Calos for appellant.
Adrienne George-Eliades (Hill, Rainey &
Eliades, on brief), for appellees.
No brief or argument by the child's
guardian ad litem.
Sharon Marie Crockett appeals from a final order of adoption
granting the petition of Ronnie and Sabrina McCray to adopt
Crockett's birth daughter. Crockett contends the trial judge
erred by entering the adoption order because (1) the record failed
to establish that the visitation requirements of Code
§ 63.1-219.19 had been satisfied during the probationary period,
(2) the adoption resulted in the separation of the child from her
blood relatives, (3) the evidence did not rebut the presumption
favoring Crockett, the child's birth parent, (4) the judge failed
to consider all the statutory factors in finding Crockett withheld
her consent to the adoption contrary to the best interest of the
child, (5) the order did not provide for post-adoption visitation
between Crockett and the child, and (6) the trial judge refused to
appoint a court reporter and provide Crockett, an indigent person,
a free transcript. We agree that the evidence failed to prove the
visitations were made as required by Code § 63.1-219.13, and we
remand for further proceedings.
I.
The record indicates that in 2000, Ronnie and Sabrina McCray
filed a petition in juvenile and domestic relations court seeking
approval of Sharon Marie Crockett's consent to the adoption of
Crockett's child or, alternatively, a finding that Crockett's
refusal to consent was withheld contrary to the child's best
interest, and other relief. By order of July 11, 2000, a judge of
the juvenile court found, in pertinent part, that the child was
four months old when Crockett placed the child with the McCrays in
May 1996; that three months after that placement, a judge of the
juvenile court awarded custody of the child to the McCrays; that
the child had lived with the McCrays for more than four years;
that Crockett appeared at the evidentiary hearing and refused
consent; that Crockett was withholding her consent contrary to the
best interest of the child; and that all other pertinent statutory
requirements had been met. The judge granted the petition and
appointed the McCrays guardians of the child pending her adoption
by them. The record contains no indication that Crockett appealed
from that order.
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On July 6, 2000, the McCrays filed a petition in the circuit
court for adoption of the child. The petition for adoption
alleged that Crockett placed the child in the care, custody, and
control of the McCrays pursuant to former Code § 63.1-220.3, that
the juvenile court had made findings that Crockett's consent to
adoption had been withheld contrary to the child's best interest,
and that the juvenile court had transferred custody of the child
to the McCrays. A copy of the juvenile court's order was attached
to the petition. On July 11, 2000, the circuit court appointed a
guardian ad litem for Crockett. By interlocutory order entered
October 25, 2000, a circuit judge granted the McCrays' petition
for adoption, "subject to the probationary period provided by
law," and granted the McCrays' petition to have the child's last
name changed from Crockett to McCray. Crockett noted a general
objection to entry of the interlocutory order.
Crockett filed an answer on February 6, 2001, objecting to
the adoption. She asserted that she continued to withhold her
consent to the adoption, that the report of the child's guardian
ad litem was deficient, and that the judge should "reject, vacate,
and otherwise overrule" the juvenile court's order waiving
Crockett's consent. After six months had passed from entry of the
interlocutory order, the trial judge held an evidentiary hearing
upon the McCrays' motion for entry of a final order of adoption
and Crockett's objection to the adoption.
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The evidence at the evidentiary hearing proved Crockett has
been in prison most of the child's life. Crockett testified that
she was incarcerated from May 1996 to March 1999. She was again
incarcerated in December 1999 for drug use. Crockett testified
that she had received drug treatment in prison and that she would
be eligible for parole in June 2001. Her mandatory release date
from prison is in 2003.
Crockett testified that the McCrays were helping her mother
and stepfather take care of the child in 1996. She testified that
during that time she signed a consent giving her mother and the
McCrays legal authority over the child. Crockett testified that
the child has visited her in prison on weekends with Crockett's
mother and brother and that she developed a bond with her daughter
during the nine months when she was out of prison. Crockett
expressed her concern that if the McCrays adopted her daughter and
moved to Alabama, she would not see her daughter because leaving
the state would be a violation of her probation. Crockett said
she disagreed with the adoption and expressed her wish that the
child be allowed to live with a member of her family.
Crockett's brother and his wife testified that they would
like the child to be a part of their family and to live with them
in North Carolina. Crockett's sister-in-law testified that, until
recently, they were not aware that Crockett was interested in them
rearing the child. She testified that she sees the child more
than three times each year but could not "remember the last time
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[she saw the child]." Crockett's brother also testified that the
child's move to Alabama was a concern because she would be away
from Crockett's family.
The child's maternal grandmother testified that she was
willing to assist in rearing the child if Crockett's brother and
his wife "were not able or willing to" care for her. She
acknowledged that the McCrays were her friends, were "good
providers" for the child, and never thwarted her efforts to see
the child. She testified that she was present in August 1996 at
the juvenile court hearing when the McCrays initially gained legal
custody of the child and that the issue whether she could care for
the child was never raised at the hearing. She also testified,
however, that she did not ask for custody of the child at the
August 1996 hearing.
The trial judge ruled from the bench that he would grant the
petition for adoption. He made oral findings, which included the
following:
The father of this child is unknown.
[The grandmother] says today and so far as
the record shows and so far as this Court
knows says today for the first time that she
would like to have the child. Before that,
she certainly, at the least, been ambivalent
about it. [Crockett's brother and his wife]
came forward today and say that they would
like to have [the child]. But, until today,
they've been content to let things be. So
where has the interest and the work and the
love for [the child] come from in the last
four years? And I think the answer is
obvious. It's come from Mr. and Mrs. McCray
who have had custody of the child except for
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the first . . . four months of her life.
They began procedure to have custody and –-
quite some years ago and procedure for this
adoption over a year ago. . . . I realize
that it's a presumption in the favor of
natural parents. And I realize that the
evidence needs to be clear and convincing
that it's detrimental to the child to not do
this. And I think that those things have
been shown quite clearly.
The judge also ruled that he would not grant Crockett's request
for visitation, stating, "I want to tell you that my thought off
the top of my head is it would be inappropriate since we are
cutting legal ties with the final order. So I'll be glad to
consider that if you want to take a look at it and reflect on
it, but I would not do it today." On May 2, 2001, the trial
judge entered a final order of adoption. This appeal followed.
II.
Crockett objected, both during the hearing and on the final
order, contending that neither the social services reports nor
the evidence indicated that the required home visitations were
made during the probationary period. She contends on appeal
that the visitation requirements of Code § 63.1-219.19 were not
met because "[t]here is no evidence in the record that the
[requisite] visitations occurred." We agree.
Code § 63.1-219.19 requires that visitations be made and a
report of those visitations be filed in the circuit court. In
pertinent part, that statute provides as follows:
A. . . . [A]fter the entry of an
interlocutory order of adoption, . . . if
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the placement is a parental placement, the
child-placing agency that submitted the home
study . . . shall cause the child to be
visited at least three times within a period
of six months by an agent of such local
board or department of social services or by
an agent of such licensed or duly authorized
child-placing agency. Whenever practicable,
such visits shall be made within the six
months period immediately following the date
of entry of the interlocutory order;
however, no less than ninety days shall
elapse between the first visit and the last
visit. The agency that placed the child,
the child-placing agency that submitted the
home study, the local director of social
services or the licensed child-placing
agency, as applicable, shall make a written
report to the circuit court, in such form as
the Commissioner may prescribe, of the
findings made pursuant to such visitations.
. . .
B. The three supervisory visits required in
subsection A shall be conducted in the
presence of the child. At least one such
visit shall be conducted in the home of the
petitioners in the presence of the child and
both petitioners, unless the petition was
filed by a single parent or one of the
petitioners is no longer residing in the
home.
Code § 63.1-219.19(A), (B).
The statute clearly prescribes the number of visits and the
time frame in which they shall occur. The Supreme Court has
ruled that the visits serve an important function:
The interlocutory order contemplated by
[the] statute . . . is for the purpose of
giving the Welfare Department an opportunity
to visit the home of the adopting parents,
to see that the child is being properly
cared for, thereby forming some opinion as
to the child's future should it be permitted
to remain in the home.
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Bidwell v. McSorley, 194 Va. 135, 140, 72 S.E.2d 245, 249
(1952). Moreover, the social services report, which is premised
upon those visitations, has heightened significance because only
"after considering the report . . . , if the court is satisfied
that the best interest of the child will be served thereby,
[shall] the circuit court . . . enter the final order of
adoption." Code § 63.1-219.20.
Although the report was filed with the circuit court,
neither the report nor any testimony indicates the three visits
were made as required by the statute. Without knowing whether
the visitation requirements had been satisfied, the trial judge
could not adequately assess the report. In the absence of this
information in the record, the trial judge had no basis to
determine that the safeguards mandated by the General Assembly
were followed and that the best interest of the child was served
by entering the final order of adoption. Because the evidence
in the record does not indicate that these requirements were
fulfilled, we hold that the judge had no basis to determine
whether the statutory mandates were satisfied. We, therefore,
reverse the order of adoption and remand for reconsideration and
further proceedings.
III.
Because several of the issues raised by Crockett will recur
on remand and reconsideration, we address them.
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First, Crockett contends the trial judge improperly found
that placement of the child with the McCrays, rather than with
Crockett's blood relatives, was in the best interest of the
child. Because we have ruled that the trial judge's finding
concerning the placement of the child is dependent, in part,
upon the report of the home visitations, the trial judge must
also reconsider on remand whether placement with the adoptive
parents, over Crockett's relatives, is in the child's best
interest.
Second, Crockett contends the trial judge erred in ruling
that her consent to the adoption was withheld contrary to the
child's best interest. The record reflects, however, that the
juvenile court judge determined that Crockett withheld consent
to the adoption contrary to the best interest of the child.
That finding was made after an ore tenus hearing occurred on May
30, 2000. The juvenile court order recites that the judge
considered the statutory factors, and it contains specific
findings of fact on several of the relevant factors. The record
does not reflect that Crockett appealed from that ruling.
Accordingly, we hold that the trial judge could properly rely
upon that ruling in granting the adoption.
Third, Crockett argues that the trial judge disregarded the
presumption in favor of natural parents. The Supreme Court,
however, has previously held as follows:
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[T]he presumption in favor of parental
custody is rebuttable by proof that the
requirements of Code § 63.1-225 [now Code
§ 63.1-219.10] have been met as of the date
of filing the petition for adoption. Having
satisfied the provisions of that statute,
the proponents of adoption are entitled to
an interlocutory order under Code § 63.1-226
[now Code § 63.1-219.16] if the trial court,
after hearing the evidence of both the
proponents and the opponents of the
adoption, finds by a preponderance of the
evidence that the proposed adoption would be
in the child's best interests.
Szemler v. Clements, 214 Va. 639, 643, 202 S.E.2d 880, 884
(1974).
The record does not reflect that Crockett appealed from the
finding in the juvenile court's order that her consent was being
withheld contrary to the best interest of the child. When the
trial judge entered the interlocutory order, he found that "all
requirements of law have been met." The evidence supports the
trial judge's ruling.
Fourth, Crockett contends the adoption order was improper
because it did not provide for her visitation with the child
post-adoption. The trial judge's decision not to grant
visitation was based on his finding that it would be improper to
grant visitation in the same order as the adoption.
"Code § 20-124.1 provides that only a person 'with a
legitimate interest' has standing to request custody or
visitation and that '[a] party with a legitimate interest . . .
shall not include any person . . . whose parental rights have
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been terminated by court order, either voluntarily or
involuntarily.'" F.E. v. G.F.M., 35 Va. App. 648, 670-71, 547
S.E.2d 531, 542 (2001) (citation omitted). In that ruling, we
also cited former Code § 63.1-233, which has been recodified as
Code § 63.1-219.22. It provides, in pertinent part, as follows:
The birth parents . . . shall, by such
final order of adoption, be divested of all
legal rights and obligations in respect to
the child including the right to petition
any court for visitation with the child.
Any child adopted under the provisions of
this chapter shall, from and after the entry
of the interlocutory order or from and after
the entry of the final order where no such
interlocutory order is entered, be, to all
intents and purposes, the child of the
person or persons so adopting him.
Code § 63.1-219.22. Thus, we hold that the trial judge did not
err in refusing Crockett's request for post-adoption visitation
with the child.
Finally, Crockett contends the trial judge erred in denying
her requests for a free transcript. The issue is moot because a
court reporter was engaged by the McCrays to transcribe the
proceedings at no cost to Crockett. Moreover, Crockett
represents that "the . . . Supreme Court has indicated that
[her] guardian ad litem . . . will be reimbursed for the court
reporter's transcription."
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IV.
For these reasons, we reverse the order and remand for
reconsideration and a decision consistent with this opinion.
Reversed and remanded.
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