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