COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
FRANK L. McCRAY
MEMORANDUM OPINION *
v. Record No. 2940-02-3 PER CURIAM
APRIL 29, 2003
SAMUEL W. LAW, MARCELLA L. LAW
AND KIMBERLY NICOLE LAW
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
(Deborah Anne Gartzke, on brief), for
appellant.
(Victor V. Ludwig; Nelson, McPherson,
Summers & Santos, L.C., on brief), for
appellees.
Frank L. McCray (McCray) contends the trial court erred in
(1) finding that a continuance of the parent-child relationship
would be detrimental to the children; (2) finding that McCray, the
non-consenting parent, had "by his conduct or previous legal
action lost his right to his children"; and (3) failing to
consider the efforts of Mr. and Mrs. Law in "thwarting [his]
efforts to assert his parental rights when it found that failure
to grant the adoptions would be detrimental to the children."
Upon reviewing the record and briefs of the parties, we conclude
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
Marcella and Samuel Law (hereinafter, the Laws, or mother and
Law, respectively) were married in 1978 and have lived
continuously as husband and wife since that time. Mother gave
birth to two children: KNL, born on October 30, 1984; and JAL,
born on April 20, 1991. DNA tests conducted in 1994 showed that
McCray was the biological father of the two children as a result
of an ongoing extra-marital affair between mother and McCray. The
children have lived continuously with the Laws since their births,
and the Laws have lived at the same address since 1992.
On June 13, 2001, with mother's consent, Law filed a petition
to adopt the children. In the petition, the Laws advised the
trial court that McCray refused to consent to the adoptions and
asked that the trial court find that McCray was withholding
consent contrary to the best interests of the children.
On June 18, 2002, the trial court conducted a hearing on the
adoption petition. At the time of the hearing, KNL was seventeen
years old and JAL was eleven.
The evidence showed that McCray "attempted to obtain
visitation with the children" in 1992. 1 On October 6, 1994,
1
In lieu of a transcript of that hearing, the record
contains a statement of facts and "Objection[s] to and
Amplification of [the] Statement of Facts" filed with the trial
court.
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McCray, the Laws and the children's guardian ad litem appeared in
juvenile court on McCray's "petition for custody and visitation."
The juvenile court found that McCray "has not had any contact with
said children for almost two years" and that the mother has not
petitioned for child support during that time. The parties agreed
that "McCray will voluntarily suspend his rights of visitation
with said children and that the mother, Marcella Law will not
demand child support." The order also noted that mother's
husband, Law, "can capably support said children without any
assistance from . . . McCray." As a result, the juvenile court
"suspended" McCray's "visitation rights" and his "obligation to
support said children." In the order, the "parties reserve[d] the
right to petition the court for visitation or support without the
necessity of showing a change of circumstance."
Law recalled only one instance when McCray contributed to
either child's financial welfare, that being in 1991 when McCray
contributed to help pay "some medical expenses." Except for a
telephone call in 2001, McCray "had not telephoned the children,
sent them gifts, holiday cards, birthday cards, or written any
letters to them" since 1992. Law testified that both children
have their own room, do well in school, participate in
The Laws corrected the statement of facts to indicate that
the parties stipulated that McCray filed his petition for
visitation in 1992, rather than 1994. However, page 5 of the
statement of facts, which the parties failed to correct, recites
that "McCray testified that in 1994, he filed petitions for
visitation."
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extracurricular activities and have never been in trouble. Law
has worked for the same employer for twelve years, makes
approximately $53,000 per year, carries the children on his health
insurance and loves the children as if they were his own.
KNL testified that she last saw McCray "when she was in the
second grade, and had not received any calls, letters, cards or
gifts from him since then." She recalled McCray having a bad
temper, calling her a "'little bitch'" and throwing a rock at her
mother. She also related an incident when McCray "massaged her
upper thigh in a way that made her feel uncomfortable." KNL has
"no interest in having a [parental] relationship with McCray."
She loves Law and wants him to adopt her.
JAL did not learn that McCray was his biological father until
July 2001.
Dr. Nadia Kuley, a clinical psychologist, began seeing the
children for counseling in August 2001, "addressing the issues of
their adoption by Samuel Law without the biological father's
consent and the children's psychological status." Dr. Kuley
testified that JAL "was having difficulty sleeping, felt insecure,
and was afraid he would be taken away from the Laws." Dr. Kuley
opined "that it would be detrimental to the children's best
interests if Law were not permitted to adopt them." She added
that JAL is "very troubled" that the adoption might be thwarted,
and if unsuccessful, the impact on JAL "would be 'devastating.'"
Dr. Kuley conceded "it is possible to develop a father-child
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relationship in circumstances like these if the child is motivated
to do so."
McCray testified he visited the Laws' house on Saturday
nights "during his lengthy affair with [mother]." In 1990 or
1991, he obtained a house at which mother visited with KNL.
However the relationship "was rocky," and mother terminated
contact around 1992. McCray admitted "his contact with [KNL] was
'very rare,'" involving only "brief" contact. He averred "he did
not see or attempt to contact the children after" December 26,
1991. According to McCray, he filed petitions in juvenile court
in 1994 for visitation, however, his financial situation was so
poor he "had no money to do activities with the children." An
attorney advised McCray that if he signed the 1994 Order of
Agreement, he could "re[-]petition the Court at any time for
visitation." McCray said he was afraid to contact the Laws
because of a previous stalking charge, so he did not attempt any
contact until he telephoned them in April 2001.
At the conclusion of the evidence, the trial court ruled that
"clear and convincing evidence" established that "continuance of
the parent-child relationship would be detrimental to the
child[ren]'s welfare."
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ANALYSIS
I. Insufficient Evidence That Continued Relationship Between
McCray and the Children Would Be Detrimental
Under familiar principles of appellate review, we consider
the evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Laws, 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 Laws' 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).
"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. In
making that determination, the trial court must "consider the
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child's best interests vis-a-vis both the prospective adoptive
parents and the parent whose consent to the adoption is being
withheld." Hickman v. Futty, 25 Va. App. 420, 432, 489 S.E.2d
232, 237 (1997). 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." Id. at 426, 489
S.E.2d at 234-35 (citing and listing factors in former Code
§ 63.1-225.1). 2
Detriment is determined . . . 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 . . . 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.
Id. at 431-32, 489 S.E.2d at 237; see also Code § 63.2-1205
(setting forth the "relevant factors" a court must consider).
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.
2
Code § 63.1-225.1 was repealed and recodified in 2000 as
Code § 63.1-219.13. In October 2002, Code § 63.1-219.13 was
repealed and recodified as Code § 63.2-1205.
Likewise, Code § 63.1-225(F) was also repealed and
recodified in 2000 as Code § 63.1-219.11, which in October 2002,
was repealed and recodified as Code § 63.2-1203.
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In such a case, the conclusion that consent
is withheld contrary to the child's best
interests is compelled.
Hickman, 25 Va. App. at 432, 489 S.E.2d at 237-38.
Here, the evidence supports the trial court's findings that
McCray withheld consent contrary to the best interests of the
children and that McCray's continued relationship with the
children would be detrimental.
The Laws have provided supervision and a positive home
environment where the children are thriving academically,
socially and emotionally. In contrast, other than providing
"some" financial assistance in 1991 when KNL hurt her arm,
McCray provided no financial assistance to the children.
McCray's last contact with KNL was in 1991, when she was seven
years old. The record proved the contact was "rare" and
"brief." KNL recalled appellant's bad temper and aggressive
nature, as well as an incident where he made her feel
uncomfortable. McCray has had no contact with JAL. In 1994,
McCray consented to the terms of an Agreed Order whereby his
"visitation rights with [the] children" and his "obligation to
support" them was suspended. The record fails to show that
McCray ever exercised his right to petition the court for
visitation after entry of that 1994 order.
We distinguish the cases cited by appellant to support his
argument. First of all, unlike McCray and mother's situation,
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those cases involved married partners who had a child and later
divorced.
In Ward v. Faw, 219 Va. 1120, 1122, 253 S.E.2d 658, 660
(1979), the natural father, a serviceman, was sent overseas when
the child was very young. The mother obtained a divorce a year
later, gaining custody of the child. Id. Husband was ordered
to pay child support and was granted reasonable visitation.
Three years later, mother and her new husband petitioned for
adoption. Id. The evidence showed that the natural father had
not seen his son for over three years and only once since the
divorce, and the child was not familiar with his natural father.
However, unlike McCray, the father in Ward "made the child
support payments regularly, . . . repeatedly mailed greeting
cards . . . upon special occasions, and also forwarded gifts to
his son." Id. at 1122-23, 253 S.E.2d at 662. Moreover, there
was no evidence that continuing the parent-child relationship
would have an adverse effect. Thus, the Supreme Court reversed
the trial court's decision to grant the adoption petition,
holding that the "'adoptive parent [failed] to establish by
[clear and convincing] evidence that continuance of the
relationship between the father and child would be detrimental
to the child's welfare.'" Id. at 1125, 253 S.E.2d at 661.
In Cunningham v. Gray, 221 Va. 792, 793, 273 S.E.2d 562,
563 (1981), a New Jersey couple divorced when the child was
three years old. Father was granted visitation and ordered to
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pay child support. Id. A year later, mother moved with the
child to Virginia and remarried. Id. Five years later, she and
her new husband petitioned for adoption. Id. at 794, 273 S.E.2d
at 563. The natural father, who remained in New Jersey, did not
pay child support and only saw the child once after mother
moved. Id. However, the natural father's parents visited
annually with the child, and the mother testified that the child
was aware of her natural father and maintained a scrapbook about
him. Id. at 794, 273 S.E.2d at 563. The Supreme Court reversed
the trial court's decision to grant the petition for adoption,
holding that "[t]he record here, as in Ward, is completely
devoid of any evidence that continuance of the present limited
relationship between Cunningham and his daughter, or any
broadening of that relationship which may occur in the future,
will be disruptive of the child's well-being." Id. at 795, 273
S.E.2d at 564.
In Jolliff v. Crabtree, 224 Va. 654, 655, 299 S.E.2d 358,
359 (1983), an Indiana couple divorced when their child was
twenty-one months old. The Indiana court awarded mother custody
of the child and child support and granted the husband weekly
visitation. Id. Two months after the divorce, the mother left
Indiana with the child and "moved to Florida without any notice
or prior consultation with the child's father." Id. A year
later, the mother remarried a serviceman whose job required them
to periodically move to other military locations. Id. at 656,
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299 S.E.2d at 359. Several years later, the stepfather and
mother petitioned for adoption, but the father refused consent.
Id. He said he loved his child, he was always willing to
support him and "alleged that it had been impossible for him to
exercise visitation rights since he did not know the location of
his child until the adoption petition was filed." Id. at 658,
299 S.E.2d at 360. Relying again on the rule expressed in Ward,
the Supreme Court reversed on the basis that the "'adoptive
parent [failed] to establish by the [appropriate quantum of]
evidence that continuance of the relationship between the father
and child would be detrimental to the child's welfare.'" Id. at
658, 299 S.E.2d at 359 (quoting Ward, 219 Va. at 1125, 253
S.E.2d at 661).
Unlike the parties whose granted petitions were reversed on
appeal, the Laws presented evidence through KNL and Dr. Kuley that
continuing or creating a parent-child affiliation between McCray
and the children would be detrimental. Dr. Kuley testified "that
it would be detrimental to the children's best interests if Law
were not permitted to adopt them."
KNL could recall only negative experiences with McCray,
experiences suggesting an unhealthy relationship, which might
cause anxiety on the part of KNL. Moreover, KNL, who was
seventeen at the time of hearing, and is now eighteen, expressed a
desire to be adopted by Law. She also expressed her desire not to
maintain, or enter into, a parent-child relationship with McCray.
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The detrimental effect on JAL was more severe and obvious
because he was younger and did not know McCray. Dr. Kuley
unequivocally opined that denying the petition would "devastate"
JAL and make him more insecure. He has difficulty sleeping and is
insecure and fearful that he will be taken from his mother and
Law. Although Dr. Kuley explained that "it is possible to develop
a father-child relationship in circumstances like these," she
conditioned that on "the child [being] motivated to do so." Here,
neither child is motivated to enter into such a relationship.
The record contains sufficient evidence from which the trial
court could find by clear and convincing proof that continuing a
parent-child affiliation between McCray and the children would be
detrimental.
II. Insufficient Evidence to Support Finding
that McCray Lost His Rights to His Children
In Paragraph 6 of the final order, the trial court stated:
In October 1994, McCray agreed to a
suspension of his visitation rights in
exchange for relief from any obligation of
support for the Child[ren], and, although
McCray has known where the Child[ren] ha[ve]
resided since 1994, he has made no effort to
contact the Child[ren] in any way, which
conduct together with other conduct of which
there was evidence, constitutes an
abandonment of the Child[ren].
McCray contends the trial court erroneously relied on the
Agreed Order and his lack of contact to find abandonment, grant
the adoption petition, and sever his parental rights. He argues
that he tried to assert his parental rights "by filing petitions
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for visitation in 1992, [and] trying to reestablish contact by
telephone in 2001 and then filing petitions for visitation in
2001."
As explained in Part I., supra, the Laws presented detailed
expert evidence through Dr. Kuley that denying the petition and
continuing the "relationship" between McCray and the children
would be detrimental to the children. In Cunningham, a case
upon which McCray relies, the petitioning party presented no
evidence that continuing the parent-child relationship would be
detrimental. Here, the Laws presented sufficient evidence of
detriment.
Despite the finding of abandonment, the record contains
other evidence demonstrating that continuing the relationship
would be detrimental. The trial court's analysis and finding of
abandonment was merely a means of considering and weighing the
statutory factors in judging McCray's "efforts to assert
parental rights" and the "quality of any previous relationship"
between the children and McCray. Code § 63.2-1205 (formerly
Code § 63.1-219.3).
"[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
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rational judgment and determine that the
continued relationship between a child and a
non-consenting parent will be detrimental to
the child's welfare."
Hickman, 25 Va. App. at 428, 489 S.E.2d at 235-36 (quoting Frye,
4 Va. App. at 536, 359 S.E.2d at 319).
The record supports a finding, apart from abandonment or
lack of contact, that continuing the relationship would be
detrimental. Accordingly, the finding of abandonment does not
constitute reversible error.
III. Trial Court Did Not Take Into Account Evidence
That McCray's Efforts to Assert His
Parental Rights Were Thwarted by the Laws
In its final orders, the trial court noted that it
considered the evidence heard ore tenus as well as the statutory
factors set out in Code § 63.1-219.13 (now Code § 63.2-1305) in
finding that "McCray's consent is being withheld contrary to the
best interests of the Child[ren]."
The trial court heard the evidence ore tenus, thus its
findings are entitled to the weight of a jury verdict and will
not be disturbed unless plainly wrong or without evidence to
support them. Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d 16, 17
(1975). The record does not support appellant's assertion that
the trial court improperly refused to consider efforts by the
Laws to thwart him from asserting his parental rights.
Moreover, credible evidence supports the finding of the trial
court.
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We cannot say that the trial court's decision was plainly
wrong or without evidence to support it. Accordingly, the
decision of the circuit court is summarily affirmed.
Affirmed.
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