Hickman v. Futty

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia

JENNIFER REBECCA HICKMAN
OPINION BY
v. Record No. 2191-96-3 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 19, 1997
JEFFREY SCOTT FUTTY AND
PATRICIA IRENE KENNEDY FUTTY

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
Bryan K. Selz (Overbey, Hawkins & Selz, on
brief), for appellant.

Betsy H. Phillips (Phillips & Morrison, on
brief), for appellees.

Jennifer Rebecca Hickman appeals the final order of the

circuit court granting the adoption of her child without her

consent to Jeffrey Scott Futty and Patricia Irene Kennedy Futty.

She contends the evidence does not support the court's finding

that she withheld her consent to the adoption contrary to the

child's best interests. The disposition of this appeal turns on

a construction and application of Code § 63.1-225.1, which has

not been addressed by the Virginia appellate courts heretofore.

We find that Code § 63.1-225.1 codifies the standard promulgated

by the Virginia appellate courts in cases decided under prior law

and that the evidence in the present case supports the circuit

court's finding under that standard.
 I.

K.D.M. (child) was born on February 7, 1992. Appellant,

Jennifer Rebecca Hickman (Hickman), is the child's birth mother.

James Clayton Miller, Sr. (Miller) is the child's birth father.

Hickman and Miller were never married. They lived together

until Miller was incarcerated three weeks after the child's

birth, following which Hickman and the child lived at the

Salvation Army. Appellees, Jeffrey Scott Futty and Patricia

Irene Kennedy Futty (Futtys), thereafter took Hickman and the

child into their home. Mrs. Futty is the child's paternal

grandmother. Hickman remained with the child in the Futtys' home

for seven weeks, until Mrs. Futty asked her to leave. Hickman

was under investigation for welfare fraud, and the Futtys were

granted custody of the child. In August 1992, Hickman and Miller

were granted limited, supervised visitation.
In February 1996, the Futtys filed a petition to adopt the

child. The Campbell County Department of Social Services (DSS)

prepared a home study report addressing the placement of the

child for adoption with the Futtys. Ultimately, DSS recommended

the Futtys as suitable adoptive parents for the child. DSS

reported that the Futtys' home was the only home the child had

ever known, that the child identified only the Futtys as her

parents, and that the Futtys, as well as the Futtys' children,

treated the child as part of their family. The evidence showed

that the child was thriving in the Futtys' home, which was

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described as stable and loving. There is no dispute concerning

the suitability of the Futtys as custodians of the child.

Miller consented to the adoption. Hickman did not. At the

circuit court hearing, Hickman agreed that the Futtys provided a

suitable home for the child. She disagreed, however, that the

Futtys should be allowed to adopt the child. Hickman reported to

DSS that she had never been given a chance to parent the child

and only wanted to prove that she could. At the hearing, Hickman

testified that she wanted the child to stay with the Futtys until

she could get on her feet and establish a mother/daughter

relationship.
Hickman admitted, however, that she did not have "much of a

relationship" with the child. Indeed, since she was granted

visitation in August 1992, Hickman visited the child only nine

times, for "very short" periods, and most recently in June 1995,

eight months before the petition for adoption was filed. Over

the four-year period, Hickman phoned the Futtys only once. Since

the Futtys gained custody of the child in April 1992, Hickman had

not petitioned for custody or additional visitation, and she had

provided no financial support for the child.

Hickman attributed the infrequency of her visits and her

failure to pursue custody to her "very abusive" relationship with

Miller, which did not end until the Spring of 1995. She

testified that she was afraid of Miller and that she had not

sought custody of the child because she believed it to be in the

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child's best interests to remain with the Futtys while her

relationship with Miller continued. Hickman also reported to DSS

that she was reluctant to visit the child at the Futtys'

residence because Miller was present each time she went. She

reported that she wanted to visit the child without Miller being

present. Hickman further reported to DSS that Mrs. Futty did not

like her because she was dating a black man and that the Futtys

were racist. She also testified that her visitation problems

were due in part to transportation difficulties.
The Futtys denied the allegation that they were racist and

denied having hindered Hickman's visitation rights. Miller

testified that he had done nothing to prevent Hickman from

visiting the child. The DSS social worker testified that she was

unaware of any efforts by Miller to prevent visitation by

Hickman, although she acknowledged that Miller had been

incarcerated for thirteen months for "beating on" Hickman. The

Futtys both reported to DSS and testified at the hearing that on

all but one of Hickman's visitations she had accompanied Miller

to visit the child. In April 1994, Hickman gave birth to another

child (the infant), which Miller had fathered.

At the circuit court hearing, the DSS social worker

testified that she did not believe Hickman was able to care for

the child. She pointed to Hickman's difficulty in caring for the

infant and noted the intervention of Child Protective Services to

monitor Hickman's ability to parent the infant and a health

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condition of the infant that required special attention. The

social worker also pointed to Hickman's recent job loss and

inability to maintain a residence. DSS reported one founded

complaint against Hickman for lack of supervision and two founded

complaints against Hickman and Miller for medical and physical

neglect of the child.

In preparing its report, DSS attempted but was unable to

contact Hickman in June and July 1995 at the address they had

listed for her. Subsequently, DSS scheduled a home visit with

Hickman at another address. When DSS arrived, the homeowner

reported that she had taken Hickman in because Hickman was her

son's friend. One morning, the homeowner woke to find Hickman

and the infant asleep on her back porch. Eventually, however,

the homeowner "kicked [Hickman] out, [because she] could not put

up with her laziness." The homeowner reported that "[a]ll

[Hickman] wanted to do was sleep all day and eat. She did not

want to get a job and help pay for food." The homeowner provided

DSS a forwarding address at which DSS was able to locate Hickman.

Hickman and the infant subsequently left that address and lived

in an emergency shelter, following which they again lived with

"some friends." DSS reported that most recently, Hickman and the

infant were living in a residence with nine other people.

Hickman testified that since August 1992, she had been

incarcerated three times, twice for two-week periods and once for

a month. She further testified that since leaving the Futtys'

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residence in April 1992 she had lived in eight separate

locations.

DSS reported that Hickman had been fired from a job at

Hardee's. By the time of the hearing, Hickman had regained her

employment at Hardee's, having worked at McDonald's and Subway in

the interim. At the hearing, Hickman testified that she had

acquired a car two days earlier and that she expected to have an

apartment of her own in two months.
Upon the evidence adduced at the hearing and upon

consideration of the DSS reports, the trial court found by clear

and convincing evidence that: (1) Hickman had made little or no

effort to obtain or maintain legal and physical custody of the

child; (2) the Futtys had done nothing to thwart Hickman's

efforts to assert her parental rights; (3) Hickman was unable to

care for the child; (4) the child is over four years of age; (5)

there had been no previous relationship between Hickman and the

child or between the child and the infant; (6) the child has a

good relationship with the Futtys' other children; (7) Hickman

admitted that the Futtys had taken good care of the child and

could find no fault in the custodial environment they provided;

(8) the child had been with the Futtys continuously since a few

weeks after her birth; and (9) that any change of custody would

be emotionally devastating to the child. The court accordingly

found that Hickman was withholding her consent to the child's

adoption contrary to the child's best interests and granted the

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adoption over Hickman's objection.

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 II.

Adoption 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." Code § 63.1-225(F). In

determining whether such consent is being withheld "contrary to

the best interests of the child," the court shall consider

"whether the failure to grant the petition for adoption would be

detrimental to the child." Code § 63.1-225.1. In determining

whether the failure to grant the adoption would be detrimental to

the child, the court shall consider "all relevant factors,"

including: (1) the birth parent's efforts to obtain or maintain

legal and physical custody of the child; (2) whether the birth

parent's efforts to assert parental rights were thwarted by other

people; (3) the birth parent's ability to care for the child; (4)

the child's age; (5) the quality of any previous relationship

between the birth parent and the child and between the birth

parent and any other minor children; (6) the duration and

suitability of the child's present custodial environment; and (7)

the effect on the child of a change of physical custody. Id.

Code § 63.1-225.1, enacted in 1995, codifies the standard

promulgated by the Virginia appellate courts in cases decided

under prior law, when the statute contained no explicit standard.

See Linkous v. Kingery, 10 Va. App. 45, 390 S.E.2d 188 (1990);
Frye v. Spotte, 4 Va. App. 530, 359 S.E.2d 315 (1987); Jolliff v.

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Crabtree, 224 Va. 654, 299 S.E.2d 358 (1983); Cunningham v. Gray,

221 Va. 792, 273 S.E.2d 562 (1981); Ward v. Faw, 219 Va. 1120,

253 S.E.2d 658 (1979); Malpass v. Morgan, 213 Va. 393, 192 S.E.2d

794 (1972). Under those cases, the determination of whether

consent to adoption was being withheld "contrary to the best

interests of the child" required an analysis of "the full breadth

of the parent-child connection in all its dimensions," Ward, 219

Va. at 1125, 253 S.E.2d at 662, through "the careful application

of a series of guiding principles." Linkous, 10 Va. App. at 56,

390 S.E.2d at 194.

Under those principles, the placement of the child in the

prospective adoptive home must have furthered the child's best

interests. The child's good relationship with the prospective

adoptive parents and the ability of the prospective adoptive

parents to suitably provide for the child were common factors in

each of the prior cases. See Linkous, 10 Va. App. at 57, 390

S.E.2d at 195; Frye, 4 Va. App. at 534, 359 S.E.2d at 318;
Jolliff, 224 Va. at 656, 299 S.E.2d at 359; Cunningham, 221 Va.

at 794, 273 S.E.2d at 563; Ward, 219 Va. at 1122, 253 S.E.2d at

660; Malpass, 213 Va. at 395, 192 S.E.2d at 796. Indeed, were

the prospective adoptive parents found to be unfit to provide for

the child, consent to the adoption could hardly be withheld

contrary to the child's best interests.

Under the prior cases, however, the suitability of placement

in the prospective adoptive home was not alone sufficient to

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warrant a finding that consent to the adoption was being withheld

contrary to the child's best interests. E.g., Malpass, 213 Va.

at 398-99, 192 S.E.2d at 798; Linkous, 10 Va. App. at 56, 390

S.E.2d at 194. Indeed, were that the case, the consent

requirement of the adoption statute would be meaningless, see

Malpass, 213 Va. at 398, 192 S.E.2d at 798, and, in practical

effect, the court could forever divest a natural parent of all

rights and obligations with respect to the child, see Frye, 4 Va.

App. at 533, 359 S.E.2d at 316, simply by finding placement in

the prospective adoptive home more suitable to the child than

placement with the child's birth parent. Instead, the

relationship between the child and his or her birth parent had to

be considered. E.g., Linkous, 10 Va. App. at 56, 390 S.E.2d at

194. Where the continued relationship between parent and child

would be detrimental to the child's welfare, it would follow that

consent to the adoption was being withheld, not in the child's

interests, but as an "obstinately self-willed" act in

"prejudic[e] to the child's interest." Id. at 57, 390 S.E.2d at

194.

Under the prior cases, the Court recognized that
[f]inding that the continuation of a poor,
strained or nonexistent 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, make an informed and rational

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 judgment and determine that the continued
relationship between a child and a
non-consenting parent will be detrimental to
the child's welfare.

Frye, 4 Va. App. at 536, 359 S.E.2d at 319. The relationship

between child and birth parent was evaluated, in part, in terms

of the birth parent's fitness to provide for the child. Where

there was no question of the fitness of the birth parent and that

parent had not, by conduct or legal action, lost his or her

rights to the child, it had to be shown that continuance of the

parent-child relationship would be detrimental to the child's

welfare. E.g., Malpass, 213 Va. at 399, 192 S.E.2d at 799;

Linkous, 10 Va. App. at 56, 390 S.E.2d at 194. And, even where

the parent proved unfit, the unfitness had to make the

continuance of the relationship detrimental to the child's

welfare. Lyle v. Eskridge, 14 Va. App. 874, 876-77, 419 S.E.2d

863, 865 (1992) (quoting Doe v. Doe, 222 Va. 736, 746, 284 S.E.2d

799, 805 (1981)).

The relationship between child and birth parent was also

evaluated qualitatively, in terms of the birth parent's contact

with the child since his or her separation from the child. E.g.,

Malpass, 213 Va. at 395, 192 S.E.2d at 796; Jolliff, 224 Va. at

656-57, 299 S.E.2d at 359-60. The adverse consequences of

sporadic, or even non-existent, visitation patterns were tempered

by evaluating the extent to which, if at all, efforts at

visitation were thwarted by the child's custodian. E.g.,

Jolliff, 224 Va. at 657, 299 S.E.2d at 360; Frye, 4 Va. App. at

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534, 359 S.E.2d at 318. The quality of the relationship was also

evaluated in terms of any prior abuse of the child by the

non-consenting parent. Frye, 4 Va. App. at 534-35, 359 S.E.2d at

318-19. Finally, the relationship evaluated was not limited to a

"social, familial, or custodial connection, but [also] include[d]

the legal affiliation always present between parent and child."

Linkous, 10 Va. App. at 57, 390 S.E.2d at 194.

Under the prior case law, the totality of these factors was

evaluated to strike the appropriate balance between the best

interests of the child and the rights of the non-consenting,

natural parent. Linkous, 10 Va. App. at 56, 390 S.E.2d at 194.

In Malpass, Ward, and Jolliff, the fitness of the non-consenting

parent was undisputed, and, after consideration of the "full

breadth of the parent-child connection in all its dimensions,"

the Court in each case concluded that consent was not being

withheld contrary to the child's best interests.

In Malpass, the non-consenting parent had maintained a

regular pattern of visitation and support, when such efforts were

not thwarted by the child's custodian. There was no showing in
Malpass that the child's continued relationship with the

non-consenting parent would be detrimental to the child's

welfare; it was only established that "friction" would be created

by the non-consenting parent's continued visitation. Such

"friction" was not sufficient to support the finding that consent

had been withheld contrary to the child's best interests.

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 In Ward, the non-consenting parent paid support for the

child, sent the child gifts on a regular basis, and alleged that

the child's custodian had thwarted his efforts to visit the

child. The Court found that the non-consenting parent had

maintained a social and familial relationship with the child and

emphasized the legal relationship that the non-consenting parent

continued to share with the child.

In Jolliff, although the non-consenting parent had not seen

the child in eight years, the evidence showed that his ability to

do so had been rendered impossible by the actions of the child's

custodian: for eight years the non-consenting parent did not know

the location of the child. The evidence further showed that the

non-consenting parent was willing to visit and support the child,

and the Court again emphasized the continuation of the legal

relationship between parent and child.
In Cunningham, Frye, and Linkous, by contrast, the relative

unfitness of the non-consenting parent was an important factor.

In Cunningham, the evidence showed that the non-consenting parent
had a poor employment record, that he had been convicted of a

minor crime, that there was "friction" between the child's

natural parents, and that the non-consenting parent's occasional

violence toward the custodial parent upset the child. On

balance, however, the Court found that the evidence did not

support a finding that the continuation of the parent-child

relationship would have been disruptive to the child. Although

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the non-consenting parent had seen the child only once in

approximately five years, he alleged that his efforts to visit

the child had been thwarted by the custodial parent. Indeed, the

evidence showed that the custodial parent relocated with the

child from New Jersey, where the non-consenting parent resided,

to Virginia. The evidence also showed that although his pattern

of support had been sporadic, the non-consenting parent intended

to support the child into the future and to satisfy a child

support arrearage he owed. Finally, the evidence showed that the

non-consenting parent's objection to the adoption was not

motivated by anything but a sincere desire to maintain the

parent-child connection with his daughter.
In Frye, the non-consenting parent's fitness and the quality

of the parent-child relationship were undermined by evidence of

physical and sexual abuse by the non-consenting parent against

the custodial parent and his adopted child and stepchild. The

evidence also showed that the non-consenting parent had provided

sporadic, if any, support of the children and that he had visited

them only four or five times since he deserted them and made

frequent trips to the area without contacting them. The evidence

did not support an allegation that the custodial parent had

thwarted the non-consenting parent's efforts to visit the

children. The evidence further showed that the non-consenting

parent had deserted his children, leaving them in necessitous

circumstances, and showed no interest in them until the filing of

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the petition for adoption. On balance, the Court found that the

evidence supported a finding that the continued relationship

would be detrimental to the children and thus concluded that

consent was being withheld contrary to their best interests.

In Linkous, the non-consenting parent was incarcerated,

serving a thirty-two year sentence, and, while incarcerated, he

was convicted of another offense and received an additional ten

year sentence. The non-consenting parent was able to visit the

children only once since his incarceration. While the evidence

showed that the custodial parent refused to take the children to

the prison for further visits, the evidence supported that

decision on the ground that the prison visits were detrimental to

the children. The evidence showed that the non-consenting parent

had been only a "marginal" parent before his incarceration and

that the children would have nothing but a legal relationship

with him in the future. The Court found that the non-consenting

parent's unfitness was compounded by the occurrence of his

repeated criminal activity and, on balance, found the

continuation of the relationship to be detrimental to the

children. Thus, the Court concluded that consent was being

withheld contrary to the children's best interests.
The balance struck in these prior cases is achieved through

an application of the factors enumerated in Code § 63.1-225.1.

Those factors encompass both aspects of the standard developed in

the prior case law: a court must consider the relationship

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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. That

relationship, as it was under the prior case law, is evaluated in

terms of 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.
In sum, the 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

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consent is withheld contrary to the child's best interests is

compelled.

In the present case, the trial court tracked Code

§ 63.1-225.1 and found by clear and convincing evidence that

Hickman withheld her consent to the adoption contrary to the

child's best interests. "The trial court'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, 4 Va. App. at 537, 359 S.E.2d at

319-20. We find that the record supports the trial court's

decision.

There is no dispute with respect to the suitability of the

Futtys as parents for the child. They are the only parents the

child has known, and they and their children have integrated the

child into their family structure. Indeed, Hickman admitted at

the hearing that the Futtys provided a suitable home for the

child and she stated that she did not seek to change the child's

custodial placement for the foreseeable future.

The child's relationship with Hickman is clearly strained

and tenuous. Hickman admitted at the hearing that she did not

have "much of a relationship" with the child, and the record

shows that her choices, decisions and conduct reflected little

interest in the child prior to the Futtys' petition for adoption.

The evidence showed that Hickman had made little, if any,

attempt to establish a relationship with the child since the

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child was placed in the Futtys' custody. Hickman never sought to

regain custody of the child, which she lost within two months of

the child's birth. Furthermore, the evidence showed that in

nearly four years since Hickman was granted visitation rights,

she had visited the child only nine times and had phoned the

Futtys only once. The evidence further showed that Hickman

provided no support for the child while she was in the Futtys'

care, nearly the child's entire life.
Hickman alleged that she was thwarted in her attempts to

visit the child, but the evidence supports the trial court's

finding to the contrary. Mrs. Futty, Miller, and the DSS social

worker all testified that no one had thwarted Hickman's attempt

to exercise her parental rights. Hickman alleged that she was

afraid of Miller, who was present at the Futtys' home when she

went to visit. The evidence showed, however, that on all but one

of Hickman's visits, Hickman accompanied Miller to the Futty

residence. Moreover, Hickman gave birth to another child

fathered by Miller more than two years after her first child was

placed in the Futtys' custody. In any event, Hickman made no

effort to modify the situation and establish visitation

elsewhere.

Furthermore, Hickman's ability to parent the child clearly

weighed in the court's determination, and the evidence supports

the trial court's finding that Hickman is unable or unwilling to

care for the child. The evidence showed that Hickman had several

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founded complaints for child neglect with DSS and that DSS had

been monitoring Hickman's relationship with her other child. The

evidence further showed that Hickman had been incapable of

maintaining a permanent residence or employment. Aside from her

three periods of incarceration, Hickman resided in eight separate

locations during the relevant time period.

In sum, the choices Hickman exercised in relation to the

parent-child relationship manifest a failure of both her

willingness and ability to parent the child. The factors

addressing the child's relationship with Hickman and those

addressing the child's relationship with the Futtys support the

conclusion that failure to grant the adoption would be

detrimental to the child. Accordingly, the evidence supports the

trial court's finding that Hickman withheld her consent to the

adoption contrary to the child's best interests.
For the foregoing reasons, the decision of the trial court

is affirmed.

Affirmed.

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