COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
UNPUBLISHED
MICHAEL STACY GRAVES, JR. AND
LISA ANNE GRAVES
MEMORANDUM OPINION*
v. Record No. 1888-16-2 PER CURIAM
MAY 9, 2017
NEIL EDWARD JONES
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ricardo Rigual, Judge
(Brenda Lee Greene; Leah T. Dubuisson; Strentz & Greene, PLC, on
brief), for appellant. Appellant submitting on brief.
No brief for appellee.
Michael Stacy Graves, Jr. and Lisa Anne Graves appeal an order denying their petition for
adoption. Mr. and Mrs. Graves argue that the trial court erred by (1) requiring them “to show both
that the adoption was in the child’s best interests and that a continuing relationship with [Neil
Edward Jones] would be detrimental to the child;” (2) failing to consider Code § 63.2-1202(H) and
finding that Code § 63.2-1202(H) is not applicable to stepparent adoptions pursuant to Code
§ 63.2-1241; (3) failing to grant the petition for adoption “upon the presentation of clear and
convincing evidence that an order of adoption, upon consideration of the factors set forth under
Virginia Code § 63.2-1205, was in the best interests of the child and consent was withheld contrary
to the best interests of the child;” and (4) finding that the Spotsylvania County Department of Social
Services (the Department) “did not investigate factors relevant to determining whether consent of
the birth parents is withheld contrary to the best interests of the child when the report of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
investigation of the Department . . . complied with Virginia Code § 63.2-1242.” Upon reviewing
the record and opening brief, we reverse and remand this case to the trial court for further
proceedings consistent with this opinion.
BACKGROUND1
Mrs. Graves and Mr. Jones are the biological parents to one child, who was born in January
2006. Mrs. Graves and Mr. Jones married on November 4, 2006, separated on May 18, 2010, and
divorced on August 1, 2011. On April 28, 2011, an order was entered that awarded Mrs. Graves
sole legal and physical custody of the child.
Mr. and Mrs. Graves started living together on August 1, 2012 and married on October 11,
2012.
Mrs. Graves testified that Mr. Jones’ visitation was “sporadic.” He followed the visitation
schedule set out in the April 28, 2011 order for a “brief period,” but stopped seeing the child in the
summer of 2013.
In November 2013, Mr. Jones pled guilty to multiple felonies and served three years in
prison. According to Mrs. Graves, Mr. Jones did not contact her or the child while he was
incarcerated. However, Mr. Jones stated that he sent a “few letters” in the first year of his
incarceration, but they were returned to him because Mrs. Graves had moved. He admitted that he
made no other attempts to contact the child. Mrs. Graves explained that she was in contact with
Mr. Jones’ mother and sister while he was incarcerated. Mrs. Graves moved on April 29, 2014, and
said that Mr. Jones’ sister was aware of the new address. She admitted that she did not give
Mr. Jones thirty days advance notice of her change of address, as required by the April 28, 2011
order.
1
Pursuant to Rule 5A:8, the record contains a written statement of facts, but no transcript.
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On April 8, 2015, Mr. Graves filed the petition to adopt the child. Mrs. Graves consented to
the adoption, but Mr. Jones did not. On May 18, 2015, the circuit court entered an order of
reference, which directed the Department to “make a thorough investigation of the matter in
accordance with section 63.2-1242 of the Virginia Code, and shall report thereon in writing to this
Court within 60 days after the copy of the petition herein is forwarded to it.” The Department
subsequently filed its report and recommended that a final order of adoption be entered.
Mr. Jones was released from prison on March 30, 2016. He testified that he tried to locate
Mrs. Graves by calling friends, but he did not ask his guardian ad litem, who had been appointed to
represent him while he was incarcerated, about Mrs. Graves’ whereabouts.2 He also did not look at
the adoption papers he received to determine her address.
On June 17, 2016, Mr. Jones was arrested for violating his probation. He tested positive for
“numerous illicit substances on multiple occasions.” The court revoked his suspended sentences
and re-suspended them. Mr. Jones was released from jail on August 23, 2016. He did not attempt
to contact Mrs. Graves or the child after his release in August.
On October 12, 2016, the parties appeared before the circuit court for a hearing on the
petition for adoption. At trial, Mr. Jones admitted that he had not had contact with the child since
the child was six years old. The child was ten years old at the time of the hearing. When asked
“why he had not reached out” to the child, Mr. Jones explained that he had “ongoing substance
abuse issues.” Mr. Jones further stated that “he was unsure as to whether he would be able to
complete all of the requirements for his probation.” He could not articulate any future plans that he
had for his relationship with the child.
2
On September 28, 2016, the circuit court entered an order allowing the guardian ad
litem to withdraw.
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Mr. Graves testified that he wanted to adopt the child because he had been a father to the
child since he married Mrs. Graves in 2012. Mr. Graves explained that he played an active role in
the child’s life and supports him financially.
After hearing the evidence and argument, the circuit court asked whether any evidence had
been presented by Mr. and Mrs. Graves that an ongoing relationship between Mr. Jones and the
child would be detrimental to the child. Counsel for Mr. and Mrs. Graves argued that they were not
required to present evidence on that matter and asked the circuit court to find that Mr. Jones had
withheld his consent to the adoption contrary to the best interests of the child. Counsel also argued,
in the alternative, that Mr. Jones’ consent was not required pursuant to Code § 63.2-1202(H)
because Mr. Jones had abandoned the child. The circuit court disagreed with Mr. and Mrs. Graves’
arguments and denied the petition for adoption.
On October 31, 2016, the circuit court entered the final order, which stated, in part,
Petitioner’s evidence was insufficient to show that father’s consent
to the adoption was withheld contrary to the best interests of the
child under Virginia Code Section 63.2-1241. The court further
finds that Virginia Code Section 63.2-1202(H), which waives the
consent requirement for certain adoptions not under consideration
in this petition, is not applicable to this proceeding under
63.2-1241.
Mr. and Mrs. Graves noted their objections to the order and subsequently filed a motion to
reconsider.3 This appeal followed.
ANALYSIS
“Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight
and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin
3
The record does not include an order regarding the motion to reconsider; however, the
written statement of facts indicates that the circuit court denied the motion to reconsider.
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v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986) (citations
omitted).
Assignment of error #1
Mr. and Mrs. Graves argue that the circuit court erred by requiring them to show both that
the adoption was in the child’s best interests and that a continuing relationship with Mr. Jones
would be detrimental to the child.
As discussed in Copeland v. Todd, 282 Va. 183, 196, 715 S.E.2d 11, 18 (2011) (citing 2006
Acts chs. 825, 848 (effective July 1, 2006)), “the General Assembly amended Code § 63.2-1205 to
remove the language requiring a finding of detriment to the child to permit adoption without
parental consent.” The Supreme Court of Virginia explained that “although the General Assembly
retained the factors previously required to determine whether the failure to grant the petition for
adoption would be detrimental to the child, they are now factors [in Code § 63.2-1205 that are]
relevant to determining whether consent is withheld contrary to the ‘best interests of the child.’” Id.
at 197, 715 S.E.2d at 18 (quoting Code § 63.2-1205).
Therefore, the circuit court erred when it inquired during closing argument as to whether an
ongoing relationship between the child and Mr. Jones would be detrimental to the child because it
was no longer a factor for a court to consider.
Assignment of error #2
Mr. and Mrs. Graves argue that the circuit court erred when it found that Code
§ 63.2-1202(H) does not apply to stepparent adoptions filed pursuant to Code § 63.2-1241.
Code § 63.2-1202(H) states:
No consent shall be required of a birth parent who, without just
cause, has neither visited nor contacted the child for a period of six
months immediately prior to the filing of the petition for adoption
or the filing of a petition to accept consent to an adoption. The
prospective adoptive parent(s) shall establish by clear and
convincing evidence that the birth parent(s), without just cause, has
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neither visited nor contacted the child for a period of six months
immediately prior to the filing of the petition for adoption or the
filing of a petition to accept consent to an adoption. This provision
shall not infringe upon the birth parent’s right to be noticed and
heard on the allegation of abandonment. For purposes of this
section, the payment of child support, in the absence of other
contact with the child, shall not be considered contact.
In the petition for adoption, Mr. and Mrs. Graves asserted that Mr. Jones had had no contact
with the child since August 2013.4 Therefore, they argued that his consent was not necessary
pursuant to Code § 63.2-1202(H) because he had not had contact with the child for six months prior
to the filing of the petition for adoption. At trial, they also argued that Mr. Jones’ consent to the
adoption was not required pursuant to Code § 63.2-1202(H). The circuit court found that “Virginia
Code Section 63.2-1202(H), which waives the consent requirement for certain adoptions not under
consideration in this petition, is not applicable to this proceeding under 63.2-1241.”
“Unlike questions of fact, . . . the trial court’s statutory interpretations and legal conclusions
are subject to de novo review.” T.S.G. v. B.A.S., 52 Va. App. 583, 589, 665 S.E.2d 854, 857 (2008)
(citing Ipsen v. Moxley, 49 Va. App. 555, 560, 642 S.E.2d 798, 800 (2007)).
“Disposition of this argument is governed by Virginia’s statutory scheme for adoptions, set
forth in Title 63.2, Chapter 12, of the Code (Code §§ 63.2-1200 through 63.2-1253).” Id. at 590,
665 S.E.2d at 858. “Under the ‘[g]eneral [p]rovisions’ portion of Chapter 12 (Article 1), Code
§ 63.2-1202 addresses the requirements for the birth parent’s consent to the proposed adoption” and
the exceptions when consent is not required. Id. at 590-91, 665 S.E.2d at 858.
4
Mr. Jones said that he tried to send a “few letters” during the first year of his
incarceration, but they were returned because Mrs. Graves no longer lived at that address.
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Mr. and Mrs. Graves argue that Code § 63.2-1202(H) applies to Article 4 of Chapter 12
(Code §§ 63.2-1241 and -1242), which governs stepparent adoptions.5 Neither Code § 63.2-1241
nor Code § 63.2-1242 “expressly or implicitly exclude or modify the applicability” of Code
§ 63.2-1202. T.S.G., 52 Va. App. at 593, 665 S.E.2d at 859. “We thus conclude that had the
legislature intended to exclude or modify [Code § 63.2-1202’s] applicability to [Code § 63.2-1241],
it would have plainly done so.” Id.
Accordingly, we find that the circuit court erred in concluding that Code § 63.2-1202(H)
does not apply to stepparent adoptions.
Assignment of error #3
Mr. and Mrs. Graves argue that the circuit court erred by denying the petition for adoption
and holding that their evidence was insufficient to prove that Mr. Jones’ consent was withheld
contrary to the best interests of the child.
“We have consistently held that to grant a petition for adoption over a birth parent’s
objection, there must be more than a mere finding that the adoption would promote the child’s best
interests.” Copeland, 282 Va. at 197, 715 S.E.2d at 19 (citing Malpass v. Morgan, 213 Va. 393,
398-99, 192 S.E.2d 794, 798-99 (1972)). “Virginia’s statutory scheme for adoption, including Code
§§ 63.2-1205 and -1208, defines the best interests of the child in terms that require more expansive
analysis than when the contest is between two biological parents.” Id. at 199, 715 S.E.2d at 20.
Code § 63.2-1205 states:
In determining whether the valid consent of any person whose
consent is required is withheld contrary to the best interests of the
child, . . . the circuit court . . . shall consider whether granting the
petition pending before it would be in the best interest of the child.
The circuit court . . . shall consider all relevant factors, including
the birth parent(s)’ efforts to obtain or maintain legal and physical
5
“Chapter 12 of Title 63.2 addresses five types of adoptions: agency adoptions (Article
2); parental placement adoptions (Article 3); stepparent adoptions (Article 4); close relative
adoptions (Article 4.1); and adult adoptions (Article 5).” Id. at 591 n.5, 665 S.E.2d at 858 n.5.
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custody of the child; whether the birth parent(s) are currently
willing and able to assume full 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.
Mr. and Mrs. Graves presented evidence regarding the factors in Code § 63.2-1205. The
evidence proved that Mrs. Graves has had sole legal and physical custody of the child since the
April 28, 2011 order, and Mr. Jones had not filed any motions to modify custody or visitation since
the entry of that order. According to Mrs. Graves, Mr. Jones’ visitation with the child was sporadic
and stopped altogether in the summer of 2013. Mr. Jones was incarcerated for three years, and
shortly after he was released, he violated his probation and was incarcerated again for several
months. Mr. Jones testified that he had ongoing substance abuse issues and was not sure that he
would be able to comply with the terms of his probation. When asked, he could not articulate any
future plans that he had for a relationship with the child. Mr. Jones had not seen the child since the
child was six years old, and the child was ten years old at the time of the hearing. Mr. Jones stated
that he did not know where Mrs. Graves was living when he was incarcerated and after he was
released. Mrs. Graves did not provide him with her new address when she moved, but she did
notify his sister of her new address. The evidence also proved that Mr. Jones did not ask his
guardian ad litem or his family if they had her address. The child has been living with Mrs. Graves
since his birth, and with Mr. and Mrs. Graves since 2012. Mr. Graves acts as a father to the child
and supports the child financially.
The record does not include the court’s findings with respect to the factors in Code
§ 63.2-1205. Therefore, this Court is unable to determine why the circuit court held that the
evidence presented by Mr. and Mrs. Graves did not prove that Mr. Jones was withholding his
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consent to the adoption contrary to the best interests of the child. The case is remanded for the
circuit court to articulate its findings for the record.
Assignment of error #4
Mr. and Mrs. Graves argue that the circuit court erred in finding that the Department did not
investigate the factors relevant to determining whether Mr. Jones’ consent was withheld contrary to
the best interests of the child. The final order states, in part:
UPON CONSIDERATION of the evidence, argument of Counsel,
report of investigation of the Spotsylvania Department of Social
Services (which report did not investigate factors relevant to
determining whether consent of the birth parent is withheld
contrary to the best interest of the child, including the factors set
forth in Va. Code Section 63.2-1205) . . . .
On May 18, 2015, the circuit court entered an order of reference. The order of reference
stated that the circuit court ordered the Department to
make a thorough investigation of the matter in accordance with
section 63.2-1242 of the Virginia Code, and . . . report thereon in
writing to this Court within 60 days after the copy of the petition
herein is forwarded to it, and . . . cause a copy of said report to be
served upon the Commissioner of Social Services in accordance
with the aforesaid statute.
Code § 63.2-1241(C) states, “The order of reference may include a requirement that the
local director investigate factors relevant to determining whether consent of a birth parent is
withheld contrary to the best interests of the child, including factors set forth in § 63.2-1205.”
(Emphasis added.) In this case, the order of reference did not require the Department to investigate
the Code § 63.2-1205 factors.
Therefore, the circuit court correctly stated that the Department’s report “did not investigate
factors relevant to determining whether consent of the birth parent is withheld contrary to the
best interest of the child, including the factors set forth in Va. Code Section 63.2-1205.”
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However, the Department was not required to investigate those factors because the order of
reference did not include such a requirement.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is reversed and remanded for the circuit
court to reconsider the petition for adoption in light of Code § 63.2-1202(H) and/or the factors in
Code § 63.2-1205.
Reversed and remanded.
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