Winfield v. Urquhart

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia

RODNEY R. WINFIELD
OPINION BY
v. Record No. 2408-96-2 JUDGE MARVIN F. COLE
NOVEMBER 4, 1997
HENRY O. URQUHART and
BARBARA T. URQUHART

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
John B. Chappell for appellant.

Lawrence D. Diehl for appellees.

Amicus Curiae: Robert Winfield and Lois
Winfield; (Paul C. Bland; Beverly M. Murray,
on brief), for appellant.

Appellant contends that the trial judge erred in finding

that he withheld consent to adoption against the best interests

of his minor children and erred in finding that adoption was in

the best interests of the children. For the reasons that follow,

we affirm the trial judge.

"The trial [judge]'s decision, when based upon an ore tenus
hearing, 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). See also Lyle v. Eskridge, 14 Va. App. 874, 876, 419

S.E.2d 863, 864 (1992) (adoption determination). On appeal, we

view the evidence in the light most favorable to the party

prevailing below, giving it all reasonable inferences fairly

deducible therefrom. See Farley v. Farley, 9 Va. App. 326, 328,
387 S.E.2d 794, 795 (1990).

I.

Appellant, Rodney R. Winfield, was convicted of the

July 2, 1990 first degree murder of Ernestine Tucker Hardy, the

biological mother of BST (dob 7-5-86) and BRT (dob 2-24-90), who

are the subjects of this proceeding. Appellant was also

convicted of malicious wounding and using a firearm during the

commission of malicious wounding, both of which occurred at the

same time as the murder. As a result, appellant received a

twenty-seven year prison sentence for which he is currently

incarcerated. Appellant is the natural father of BST and BRT.

Although appellant is currently eligible for parole, prior to the

June 18, 1996 hearing, parole had twice been denied.
Following the natural mother's murder, BST and BRT were

placed in the custody of the appellees, Henry O. and Barbara T.

Urquhart, where they have remained continuously. Barbara was the

natural mother's sister. On May 15, 1992, the Urquharts were

awarded legal custody of the minor children by court order.

On October 24, 1994, the Urquharts filed a petition for

adoption. Samuel Hardy, who was married to the children's

natural mother and was their stepfather and legal guardian,

consented to the adoption on March 28, 1995. Appellant withheld

consent, and, due to his incarceration, was appointed a guardian

ad litem to represent his interests at a June 18, 1996 hearing on

the Urquharts' petition for adoption.

2
 Pursuant to Code § 63.1-223, the trial judge ordered a

preliminary investigation by the local social service agency. In

its March 17, 1995 report, the agency found the Urquharts

suitable adoptive parents and recommended that they be allowed to

adopt the minor children. The Urquharts have a longstanding

history of gainful employment with the same employers, for

twenty-one and sixteen years, respectively. They live in a

three-bedroom, well-maintained home, are actively affiliated with

a local church, have provided financial support and medical care

to the children, and have received favorable responses from

references contacted by the agency.
At the June 18, 1996 ore tenus hearing, John P. Dwyer, a

licensed clinical psychologist, provided expert testimony

regarding the results of psychological evaluations of the minor

children. Dwyer opined that the children were "functioning very

well" under the Urquharts' care and custody. The children

"describe [the Urquharts] very warmly." Dwyer described the

Urquharts as the children's "psychological parent[s]," and,

specifically, Mr. Urquhart as their psychological or emotional

father. According to Dwyer, "their mother is dead, their father

is in prison, so they have the need for parents and the Urquharts

appear to me to have stepped in very well given the

circumstances."

In addition, Dwyer testified that the children "visit the

Winfields [the paternal grandparents], and they visit their

3
father in prison . . . [and] the children have said that they

like that." When asked to comment on the effect of an adoption,

Dwyer opined that "if the children not being adopted places them

in more vulnerability for the situation to change from what it is

now, that would cause some difficulty." Dwyer stated:
If there is a question of who [BST, the older
child,] might live with and who has the power
to make those decisions, that would cause her
-- it would bring up all -- When her mother
died and her father went to prison, her life
changed dramatically at a pretty important
time developmentally. If you say well, it
can go this way, it could go that way, not
only is her future sort of in jeopardy but
her present is too, because it is going to
cause her more anxiety, more difficulty
because, again, she has gotten comfortable
and confident in her situation.

Appellant testified that, barring his early release on

parole, his mandatory release date is in the year 2003. This

date, however, is subject to appellant's good behavior while in

prison. Based on the birth years of the minor children, they

will be seventeen and thirteen, respectively, if appellant is

released in 2003.

The children's guardian ad litem recommended adoption and

represented that "in the best interest of the girls, that they're

entitled to legal stability, they're entitled to have legal

parents." Because visitation with appellant and the Winfields

appeared positive, the guardian recommended that the trial court

fashion an order requiring continued visitation.

After hearing evidence, the trial judge ruled that appellant

4
"unreasonably withheld" consent to adoption "to the detriment of

the children," and he granted the Urquharts' petition for

adoption. In the final order, the trial judge ordered that

regular visitation be allowed for appellant and appellant's

parents, Robert and Lois Winfield, the minor children's

grandparents.

II.

"No petition for adoption shall be granted, except as

hereinafter provided in this section, unless written consent to

the proposed adoption is filed with the petition. Such consent

shall be signed and acknowledged before an officer authorized by

law to take acknowledgments." Code § 63.1-225(A).
"Consent shall be executed . . . [b]y the parents or

surviving parent of a child born to parents who were not married

to each other at the time of the child's conception or birth."

Code § 63.1-225(D)(2).
If after consideration of the evidence, the
court finds that the valid consent of any
person or agency whose consent is hereinabove
required is withheld contrary to the best
interests of the child as set forth in
§ 63.1-225.1, or is unobtainable, the court
may grant the petition without such consent
. . . [t]wenty-one days after personal
service of notice of petition on the party or
parties whose consent is required by this
section . . . .

Code § 63.1-225(F).
In determining whether the valid consent of
any person whose consent is required is
withheld contrary to the best interests of
the child, or is unobtainable, the court
shall consider whether the failure to grant

5
 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.

Code § 63.1-225.1.

In Hickman v. Futty, 25 Va. App. 420, 426-31, 489 S.E.2d

232, 234-37 (1997), we analyzed prior case law as it applies to

the legislature's recently enacted statutory factors.
Th[e] factors [in Code § 63.1-225.1]
encompass both aspects of the standard
developed in the prior case law: a court
must consider the relationship between the
child and the prospective adoptive parents as
well as the relationship between the child
and the non-consenting parent. A finding
with respect to only one of these
relationships is insufficient. Under Code
§ 63.1-225.1, as under the prior case law,
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. 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
relationship the non-consenting parent
maintains with the child and other children,
if any.
Id. at 431, 489 S.E.2d at 237.

6
 [T]he factors enumerated in Code § 63.1-225.1
compel the court to consider the child's best
interests vis-a-vis both the prospective
adoptive parents and the parent whose consent
to the adoption is being withheld. 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.

In Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971), the

Supreme Court affirmed the adoption of a child by the child's

maternal aunt and uncle, over the objection of the natural

father. Although the father had killed the child's mother, he

was found not guilty by reason of insanity. Twenty-one months

after the murder and seven months after his trial, the father was

deemed mentally competent and no longer mentally ill. See id. at

454, 184 S.E.2d at 791. Following his release, the father became

gainfully employed, bought a home, remarried, and had another

child, after which he contested the adoption by the maternal aunt

and uncle and petitioned for custody of his first child. See id.

at 456, 184 S.E.2d at 792. The Supreme Court held that the trial

judge "was warranted in holding that" the natural father's

consent to adoption "was being withheld contrary to [the child's]

best interests and in granting the adoption without such

consent." Id. at 459, 184 S.E.2d at 794. The Court explained:
From . . . the . . . evidence before the
court, it is clear that the one thing for

7
 which the welfare of [the child] cries out is
permanent stability in proper surroundings.
It is problematical that [the child] could
get that stability in [the natural father's]
home. She can get it in the [adoptive
parents'] home.
To deny the adoption by the [child's
maternal aunt and uncle] now, against the
possibility that [the father] might at some
unknown time in the future be able to prove
himself entitled to a change of custody,
would be to deny [the child] contrary to her
best interests, the security and stability
she so desperately needs.

Id. at 459, 184 S.E.2d at 793-94.
[T]o say that a certain action is contrary to
the best interests of a child means that it
is action opposed to [the child's] interests.
When consent to adoption is withheld
contrary to a child's best interests, it
means that the person so withholding is
"obstinately self-willed in refusing to
concur" and that he is acting prejudicially
to the child's interests.

Malpass v. Morgan, 213 Va. 393, 398-99, 192 S.E.2d 794, 798

(1972) (citation omitted) (reversing grant of adoption to natural

mother and stepfather over natural father's objection; trial

court found that homes of both natural parents were morally

suitable and that non-consenting natural father was not

unfit)."Finding that the continuation of a poor, strained or non-

existent parent-child relationship will be detrimental to a

child's future welfare is difficult. No one can divine with any

assurance the future course of human events. Nevertheless, past

actions and relationships over a meaningful period serve as good

indicators of what the future may be expected to hold. Trial

courts may, when presented with clear and convincing evidence,

8
make an informed and rational judgment and determine that the

continued relationship between a child and a non-consenting

parent will be detrimental to the child's welfare."

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).

9
 III.

Appellant contends that the evidence was insufficient to

establish that the children's continued relationship with him was

detrimental. Under the facts of this case, we find that the

evidence supports the trial judge's decision that appellant

unreasonably withheld consent to the detriment of the children.

When weighing the evidence, the fact finder is not required

to accept entirely either party's account of the facts. See
Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193

(1986). The fact finder may reject that which it finds

implausible, yet accept other parts which it finds to be

believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198

S.E.2d 603, 606 (1973). Moreover, even though appellant's

testimony regarding the quality of care he provided to the

children before murdering their mother "was uncontradicted and

unimpeached, the trier of fact did not have to accept this

version of the facts simply because it was the only version

supplied." Harrell v. Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d

680, 684 (1990) (citing Crumble v. Commonwealth, 2 Va. App. 231,

236, 343 S.E.2d 359, 362 (1986)).

Initially, we review the factors listed in Code

§ 63.1-225.1 that the court should consider "[i]n determining

whether the failure to grant the petition would be detrimental to

the child." Those factors include: (1) the birth parent's

efforts to maintain legal and physical custody; (2) whether the

10
birth parent's efforts to assert parental rights were thwarted by

other people; (3) the birth parent's ability to care for the

children; (4) the ages of the children; (5) the quality of the

prior relationship between the children and the birth parent; (6)

the duration and suitability of the children's present custodial

environment; and (7) the effect of a change of physical custody

on the children. See id.

By murdering the natural mother and becoming incarcerated,

appellant prevented himself from maintaining or gaining custody.

As an incarcerated prisoner, appellant had, and still has, no

ability to care for the children. The children, who were very

young at the time of the murder, are still too young to

appreciate their situation and assist in making a reasoned

choice. Due to the young age of the children when their mother

was murdered, the prior relationship between appellant and BST

was of negligible quality and appellant's relationship with BRT

was practically non-existent. At the time of the hearing, the

children had been in the custody of the Urquharts for six years.

The Urquharts have provided a suitable and nurturing environment

for the children. Dwyer's expert testimony revealed that

"difficulty" would arise should a failure to allow the adoption

make the children more vulnerable to a change in the future. The

older child, BST, "has gotten comfortable and confident in her

situation," and she could face anxiety and difficulty should a

future change affect that comfort. Accordingly, application of

11
the Code § 63.1-225.1 factors to appellant's situation favors the

Urquharts, the adoptive parents, and demonstrates that a failure

to grant the petition would be detrimental to the children.

However, because factors listed in Code § 63.1-225.1 are not

exclusive, we look to other factors unique to this case. Both

the Supreme Court and this Court have expressed the view that,

before requiring a showing that a relationship with the

non-consenting parent would be detrimental, there must be "no

question of the fitness of the non-consenting parent and [a

showing that the non-consenting parent] has not by conduct or

previous legal action lost his rights to the child." Malpass,

213 Va. at 399, 192 S.E.2d at 799. See also Jolliff v. Crabtree,

224 Va. 654, 657, 299 S.E.2d 358, 360 (1983) (reversed trial

court's grant of adoption, noting that natural father was not

solely responsible for lack of contact and support where mother

unilaterally took child away and concealed his whereabouts); Ward

v. Faw, 219 Va. 1120, 1124-25, 253 S.E.2d 658, 661 (1979) (noting

absence of allegation of unfitness or showing that by conduct or

legal action the father had lost his parental rights); Lyle, 14
Va. App. at 876, 419 S.E.2d at 865 (absent a showing of

unfitness, movant must show continued parent-child affiliation

detrimental to child's welfare).

[A] determination under Code § 63.1-225(D)

that a natural parent is withholding consent

to an adoption contrary to the best interests

12
 of a child involves the careful application

of a series of guiding principles rather than

a single one. The paramount concern is the

welfare of the child, but the child's welfare

must be balanced against the rights of the

non-consenting natural parent. To reach that

balance the court must first determine that

the proposed adoption will promote the best

interests of the child; that is, that the

adoption will advance or contribute to the

child's interests. Thereafter, the more

difficult determination, which involves the

permanent severance of the parent-child

relationship, focuses on whether consent is

being withheld contrary to the best interests

of the child. To make that determination,

where there is no showing that the
non-consenting parent is unfit or by his

conduct or previous legal action has lost his

rights to the child, the party seeking

adoption must produce clear and convincing

evidence that a continuance of the

parent-child relationship would be

detrimental to the child's welfare.
Linkous, 10 Va. App. at 56-57, 390 S.E.2d at 194 (citations

13
omitted) (emphasis added).

Conversely, it follows that, where there is a showing of

unfitness or conduct by the non-consenting parent causing him or

her to lose his or her rights, the need to prove that a

continuance of the parent-child relationship would be detrimental

to the child is diminished, if not unnecessary.

In Linkous, after the divorce of the child's parents, the

natural father was convicted of armed robbery and malicious

wounding. 1 We stated that the natural father's "criminal conduct

was and should have been an important and significant factor in

the trial court's determination." Id. at 58, 390 S.E.2d at 195

(noting that natural father was "marginal parental figure" before

incarceration). In upholding the trial judge's decision to allow

the stepfather to adopt the minor child despite non-consent by

the natural father, we explained:
[The natural father's] repeated criminal
conduct necessarily limited a reasonable
expectation of visitation with his children
during his incarceration regardless of the
conduct of the [natural mother] in not
supporting even limited visitation. While we
do not decide whether prolonged incarceration
resulting from convictions of serious
felonies, rather than brief incarceration
resulting from convictions of minor crimes
. . . is sufficient in itself to support a
finding that a continuance of the
parent-child relationship would be
detrimental to the children's welfare, the
particular facts of this case, coupled with
those convictions, warrant such a conclusion.
1
The crimes were not directed at the natural father's wife
or children, and there was no evidence of any physical abuse
against them.

14
Id.

In Malpass, despite reversing the trial court's grant of

adoption, the Supreme Court acknowledged that it did "not intend

to intimate that a child must be in a desperate situation before

adoption may be ordered over the objection of a natural parent."

213 Va. at 399, 192 S.E.2d at 799 (also noting that it was

unnecessary to show abandonment or unfitness before ordering such

adoption).
Therefore, in addition to consideration of the factors set

forth in Code § 63.1-225.1, we look to appellant's conduct and

fitness. Appellant proved to be unfit when he murdered the

natural mother and maliciously wounded the mother's husband and

the children's stepfather. Appellant, who was not married to the

natural mother, armed himself with and used different weapons

against each victim; he stabbed the mother to death and shot her

husband. In addition to demonstrating his unfitness, appellant,

through his conduct, permanently deprived the children of the

opportunity to receive the love, care and attention of their

mother and foreclosed his ability, at least for a lengthy period

of time, to perform any duties of a father or of forming any

beneficial parental relationship during the children's formative

years.

We are aware of no Virginia case in which a natural parent

murdered the other natural parent and then succeeded in thwarting

adoption by suitable parents. Faced with this issue, many other

15
jurisdictions have upheld adoptions by finding the surviving

parent unfit or as having abandoned the children. See, e.g.,

R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska 1996) (holding that

"[l]eaving a child in limbo during his formative years based

upon" speculation of the murdering father's future was against

the child's best interests); Williams v. Townsend, 629 N.E.2d

252, 254 (Ind. Ct. App. 1994) (finding that father's murder of

mother "condemned" child to "childhood spent without the daily

care and nurturing of either of her natural parents"; holding

that "commission of intentional act by a parent, which not only

results in that parent's incarceration for the duration of the

child's minority but which also deprives the child completely of

the love, affection and care of the other parent, is sufficient

to constitute abandonment of the child, negating the need for

parental consent to adoption" under statute); In re M.F., 660
So.2d 952, 954 (La. Ct. App. 1995) (father's deliberate act of

killing mother evidenced careless disregard for children's

well-being and unfitness); In the interest of P.W.K., 815 S.W.2d
95, 96 (Mo. Ct. App. 1991) (mother's murder of father and

subsequent incarceration was tantamount to abandonment);

Adoption of Kurth, 557 P.2d 349 (Wash. Ct. App. 1976) (holding

that consent by father who killed mother was not necessary to

adoption).

Moreover, appellant was never married to the natural mother,

and the record shows that appellant left the mother and children

16
whenever there were conflicts and stayed with his parents. The

mother and her husband, the children's stepfather, were together

at the time of the murder. Although appellant has been meeting

with the children in prison for an hour or two every third week,

the Urquharts have been the children's emotionally, financially

and morally responsible parents. The record shows that the

children "didn't really know [appellant] very well" before the

murder and that they "developed a relationship over time visiting

[appellant] in prison."
This evidence established that appellant had no fatherly

relationship with the children prior to his incarceration.

Although appellant's testimony regarding the quality of care he

provided to the children before murdering their mother "was

uncontradicted and unimpeached, the trier of fact did not have to

accept this version of the facts simply because it was the only

version supplied." Harrell, 11 Va. App. at 9, 396 S.E.2d at 684

(citation omitted). In addition, appellant's act of murder

precluded the natural mother from rebutting appellant's

self-serving version of his prior relationship with the children.

To withhold consent because of appellant's occasional and brief

visits with the children in prison would deny the children an

opportunity to gain stability. The uncertainty surrounding

appellant's release and the speculative possibility that he will

assume a positive parental role further support the trial judge's

decision. Finally, we note that appellant and his parents were

17
granted visitation privileges in the final order. 2

In the final order, the trial judge explained that he

considered all of the evidence as well as the statutory factors

and standards in finding that appellant's consent was withheld

"contrary to the best interests of the children." Applying the

statutory criteria and prior case law and reviewing all the facts

of the case, including appellant's violent acts resulting in the

de facto abandonment and orphaning of the children during their

formative years, we find sufficient evidence supporting the trial

judge's finding that appellant unreasonably withheld his consent

for adoption. By withholding his consent, appellant deprived the

children of the stability and certainty that would result from

being legally recognized children of the only people they have

known as parents since the mother's murder. Accordingly, we hold

that the trial judge did not err in finding that appellant

withheld his consent contrary to the children's best interests

and that adoption would be in the children's best interests.

Therefore, the decision of the trial judge is affirmed.
Affirmed.

2
The parties did not contest the trial judge's order
requiring visitation, and the record suggests that such
visitation is beneficial. In addition, the Urquharts agreed to
the inclusion of visitation in the final order. Accordingly, we
do not address the propriety of such an order.

18