COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, AtLee and Senior Judge Clements UNPUBLISHED
ANGELA M. GREGORY MEMORANDUM OPINION v. Record No. 0455-18-3 PER CURIAM NOVEMBER 6, 2018 PAMELA S. MARTIN
FROM THE CIRCUIT COURT OF PULASKI COUNTY Bradley W. Finch, Judge
(R. Christopher Munique; Lacy, Campbell & Munique, P.C., on brief), for appellant. Appellant submitting on brief.
No brief for appellee.1
Angela M. Gregory (mother) appeals an order denying her motion to amend visitation and
finding that she was withholding her consent to the adoption of her child contrary to the child’s best
interests.2 She argues the circuit court also erred in violating her constitutional due process rights.
We conclude the circuit court applied the wrong standard when finding mother withheld her consent
contrary to the child’s best interests and erred in its consideration of her motion to amend visitation.
Accordingly, we reverse the circuit court’s decisions and remand for further proceedings.
BACKGROUND
This is the third time this Court has reviewed this case on appeal. We summarize here
the pertinent factual and procedural history. “When reviewing a trial court’s decision on appeal,
Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 R. Cord Hall, guardian ad litem for the minor child, submitted a letter in support of the appellee. 2 Mother is now known as Angela Charlotte Mullins. we view the evidence in the light most favorable to the prevailing party, granting it the benefit of
any reasonable inferences.” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547,
552, 811 S.E.2d 835, 838 (2018) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578
S.E.2d 833, 835 (2003)).
A daughter was born to mother in 2005. Daughter lived with mother for “about a year”
before she went to live with her paternal grandparents. Her paternal grandmother died in 2007.
In 2009, mother was convicted of several felonies and sentenced to approximately two years in
prison. While mother was in prison, daughter’s paternal grandfather moved in with Pamela S.
Martin (aunt). Aunt became daughter’s primary caretaker. On October 21, 2010, the Pulaski
County Juvenile and Domestic Relations District (JDR) Court awarded aunt custody of daughter
and ruled that mother would have no visitation. During Christmastime 2010, daughter spent
several days and nights with her maternal grandparents and half-siblings. The last time mother
visited her daughter was the day before she was arrested in 2009.
While in prison, mother wrote numerous letters to daughter; however, aunt did not give
the letters to daughter and did not tell daughter that mother tried to contact her. Mother also
wrote letters to aunt asking about daughter’s well-being and expressing her desire to establish a
relationship with daughter upon mother’s release from prison. Aunt responded that she would
fight against mother’s contact with the child.
The month before mother was to be released, aunt filed a petition in the JDR court for
consent to proposed adoption. Daughter’s father was in prison and consented to the adoption.
Mother was released from prison in February 2011. The day after she was released, she filed a
motion in the JDR court to amend visitation. Mother requested “some type of visitation” in
order “to reestablish a relationship with [her] daughter.” At that point, aunt stopped all contact
between daughter and her maternal relatives. On May 9, 2011, the JDR court denied mother’s
-2- petition for visitation. It also found mother was withholding her consent for adoption contrary to
the child’s best interests and granted aunt’s request to proceed with the adoption. Mother
appealed the order to the circuit court, which did not enter a final order in the case until February
11, 2014. Mother appealed that order to this Court arguing she had not received a de novo trial
in the circuit court because it refused to allow her to present all her evidence. This Court held
that the circuit court denied mother a de novo trial and violated her due process rights. We
reversed and remanded the case for a de novo trial. Gregory v. Martin, No. 0431-14-3, 2014
Va. App. LEXIS 312 (Va. Ct. App. Sept. 16, 2014).
On remand, after a de novo trial, the circuit court again entered an order that denied
mother’s motion for visitation and found she withheld her consent to aunt’s petition for adoption.
Mother appealed that decision to this Court. This Court held that the circuit court erred by not
allowing mother to present evidence about her relationship with the child prior to October 21,
2010, which was the date custody was given to aunt, and erred in concluding that there was no
change of circumstances. The circuit court’s order was reversed, and the matter was remanded
to the circuit court for further proceedings. Gregory v. Martin, No. 0816-15-3, 2016 Va. App.
LEXIS 199 (Va. Ct. App. July 19, 2016).
On remand, the circuit court held a new trial on August 31, 2017. At this point, daughter
was twelve years old, and mother had been out of prison for about six and a half years. Mother
admitted she was not a good parent prior to her incarceration because of her extensive drug use.
Prior to her incarceration, she visited her daughter about once or twice a month and brought her
two older daughters with her when she did visit. Mother testified that she had been drug-free
since she was incarcerated in 2009 and had not failed any drug screens while she was on
probation, which she completed two and a half years early. Mother found full-time work in a
doctor’s office, obtained her driver’s license, bought a vehicle, and had her civil rights restored.
-3- In 2015, mother gained physical custody of her two older children, who were doing well at the
time of the hearing. Aunt testified that daughter was doing exceedingly well in school and was
involved in many activities. Daughter’s bond with aunt and grandfather was strong. Aunt had
not told daughter that her mother wanted to visit her. She was concerned that daughter would be
emotionally hurt if mother relapsed into drug use.
The circuit court found a material change of circumstances and that “mother’s
circumstances have changed dramatically. She has improved . . . her life, and her condition, and
really everything about her life, and . . . that’s a wonderful thing.” The circuit court, however,
found that amending visitation was not in daughter’s best interests. Additionally, the circuit
court found mother was withholding her consent for the adoption contrary to the best interests of
the child. This appeal followed.
ANALYSIS
A. Standard of Review
“Because the circuit court heard evidence ore tenus, its factual findings are ‘entitled to
the same weight accorded a jury verdict[] and . . . will not be disturbed on appeal unless plainly
wrong or without evidence to support’ them.” Geouge v. Traylor, 68 Va. App. 343, 347, 808
S.E.2d 541, 543 (2017) (quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 44, 764
S.E.2d 284, 289 (2014)). “In its capacity as factfinder, therefore, the circuit court retains ‘broad
discretion in making the decisions necessary to guard and to foster a child’s best interests.’”
Castillo, 68 Va. App. at 558, 811 S.E.2d at 841 (quoting Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 266, 616 S.E.2d 765, 769 (2005)).
The Virginia Supreme Court has identified three principal ways by which a circuit court abuses its discretion: “when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper
-4- ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.”
Rubino v. Rubino, 64 Va. App. 256, 262, 767 S.E.2d 260, 263 (2015) (quoting Landrum v.
Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).
B. Visitation
Mother argues that the trial court erred when it found the evidence sufficient to deny her
motion to amend visitation.
“A trial court’s determination with regard to visitation is reversible only upon a showing
that the court abused its discretion.” Stadter v. Siperko, 52 Va. App. 81, 88, 661 S.E.2d 494, 497
(2008). “When a party has filed a petition to modify an existing visitation order, the courts must
apply the Supreme Court’s two-pronged test enunciated in Keel v. Keel, 225 Va. 606, 303 S.E.2d
917 (1983), to determine whether modification of that order is proper.” Rhodes v. Lang, 66
Va. App. 702, 709, 791 S.E.2d 744, 747 (2016). “That test asks, ‘first, has there been a change
in circumstances since the most recent custody award; second, would a change in custody be in
the best interests of the children.’” Id. (quoting Keel, 225 Va. at 611, 303 S.E.2d at 921).
Here, the circuit court found the “mother’s circumstances have changed dramatically.
She has improved her, her life, and her condition, and really everything about her life, and, and
that is a - that’s a wonderful thing.” It found there had been a change in circumstances, and that
prong of the test is not before us. We conclude, however, that the circuit court erred in its
consideration of the factors regarding whether a change in visitation would be in the child’s best
interests.
“‘[T]here is no simple, mechanical, cut and dried way’ to apply the best interests of the
child standard.” Welch, 64 Va. App. at 48, 764 S.E.2d at 291 (quoting Peple v. Peple, 5
Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). “Instead, ‘the question must be resolved . . . in
-5- light of the facts of each case.’” Id. (quoting Toombs v. Lynchburg Div. of Soc. Servs., 223 Va.
225, 230, 288 S.E.2d 405, 407 (1982)).
Code § 20-124.3 provides ten factors for the court to consider “[i]n determining best
interests of a child for purposes of determining custody or visitation.”3 Mother’s petition to
amend visitation asked for “some type of visitation” to “reestablish a relationship” with daughter.
Here, however, the circuit court did not consider the factors through the lens of whether “some
type of visitation” was in the best interest of daughter. Rather, the circuit court focused on the
length of time that mother was separated from daughter, despite the fact that mother had been
trying to contact her daughter since her incarceration and had sought visitation immediately upon
her release.
For example, when the court considered the first Code § 20-124.3 factor, daughter’s “age,
physical and mental condition of the child, giving due consideration to the child’s changing
developmental needs,” the court found daughter to be a “happy, healthy, appropriately
developing girl for her age.” The court then concluded
I find that that factor weighs in favor of [aunt]. It weighs in favor of the aunt because the fact is, and this is undisputed, that for many years now this child has lived with her aunt, been cared for by her aunt, and her aunt has been instrumental in the child’s physical and mental condition and changing developmental needs.
The court, in essence, considered as a factor which of the two parties had contributed more to
daughter’s development and well-being. However, the circuit court failed to consider that
mother had been trying to visit with her daughter since she was released from prison, but it took
years for her case to be heard.
3 Although Code § 20-124.3 permits the court to consider factors other than those listed in the code section, the circuit court expressly stated it considered no other factors. -6- In addressing the second factor regarding the “age, physical and mental condition of each
parent,” the court “consider[ed] the mother and then also the custodian, . . . the aunt.” The
circuit court found that mother had overcome her substance abuse addiction and was “doing very
well.” The circuit court concluded that neither mother nor the aunt’s age, physical or mental
condition “would be in any way viewed negatively in this matter.”
In addressing the third factor concerning the relationship with the child, the positive
involvement in the child’s life, and the ability to meet the needs of the child, the circuit court
focused on the quality of aunt’s relationship with daughter. It also found that mother could meet
daughter’s emotional, intellectual, and physical needs, yet the circuit court emphasized that
daughter had had “very minimal contact with her mother in her life and certainly in recent
years.” The circuit court did not consider the factor in the context of whether a reestablishment
of the mother-daughter relationship through visitation was or was not in the daughter’s best
interest.
In addressing the fourth factor, which is the “needs of the child, giving due consideration
to other important relationships of the child, including but not limited to siblings, peers and
extended family members,” the court considered daughter’s strong bond with her paternal
relatives and the limited relationship with her maternal relatives, including two half-siblings.
The court did not consider, given daughter’s strong bond with her paternal relatives, whether it
was or was not in daughter’s best interests to expand her relationships with her maternal
relatives. In addition, the circuit court found that daughter’s relationships with her half-siblings
had been “very limited” and that “over the last several years she has had little to no relationship
with those siblings.” Again, however, the circuit court failed to consider that mother had been
seeking to build the relationship between daughter and her half-siblings, but the delay in the
court process prevented her from having her motion heard for six years.
-7- Likewise, in considering the fifth factor regarding the “role that each parent has played
and will play in the future,” the circuit court emphasized that aunt’s role in daughter’s life had
been “substantial” and mother’s role was “minimal.” The circuit court did not consider the time
that it took for the case to be brought forward for trial and that mother had been trying to have a
greater role in daughter’s life.
For the sixth factor, regarding the “propensity of each parent to actively support the
child’s contact and relationship with the other parent, including whether a parent has
unreasonably denied the other parent access to or visitation with the child,” the circuit court
concluded that there were “disputes in the evidence as far as whether [aunt] has tried to prevent
mother from seeing the child or having contact with the child.” However, this ruling ignores the
evidence that aunt never gave mother’s letters to daughter or told her that mother was trying to
see her. The circuit court also did not consider the evidence that aunt told mother that she was
“going to . . . do her best to keep [mother] out of [daughter’s] life.”
In considering the seventh factor regarding the “willingness of the parent to maintain a
close and continuing relationship with the child,” the court found both mother and aunt were
willing to maintain a relationship, but that aunt’s relationship had been much stronger. It did not
consider how the relationship of each party factored into the determination of whether it was or
was not in daughter’s best interest for some type of visitation. The court was not required to
explain its reasoning, but it is significant that when it elaborated on each factor it did not
consider that factor in the context of benefit or detriment of “some type of visitation” between
daughter and her mother.
Finally, the circuit court concluded there had “not been evidence presented as to the
reasonable preference of the child.” The undisputed evidence and the guardian ad litem’s
statements to the court showed that the child had not been given an opportunity to express a
-8- preference regarding visitation because aunt had kept from daughter the knowledge that mother
was seeking contact.
In summary, mother’s petition to amend visitation requested only “some type of
visitation” in order “to reestablish a relationship with [her] daughter.” The circuit court
considered the Code § 20-124.3 factors, but failed to consider the factors in a light relevant to
whether it was in daughter’s best interests to have some sort of visitation with mother. The
circuit court erroneously focused on the fact that mother had not had contact with the child since
her release from incarceration; however, the evidence proved that mother had sought visitation
with daughter immediately after her release from prison. We find that the evidence did not
support the circuit court’s ruling to deny mother’s petition to amend visitation.
C. Withhold consent
Mother argues that the circuit court erred by finding that the evidence was sufficient to
prove that she was withholding her consent to the adoption contrary to the child’s best interests.
“‘[T]he interest of parents in the care, custody, and control of their children . . . is perhaps
the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.”
Geouge, 68 Va. App. at 368, 808 S.E.2d at 553 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)
(plurality opinion)). “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 v. Todd, 282 Va. 183, 197, 715 S.E.2d 11, 19 (2011) (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.
-9- 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 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.
The circuit court thoroughly examined each of the Code § 63.2-1205 factors and found in
favor of mother with several of the factors. For example, in considering the first factor regarding
“the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child,” the
circuit court held that “early in [daughter’s] life there was little or no effort on the part of the
mother to maintain legal and physical custody of the child.” Then, the circuit court found that
“mother, since her incarceration and since her release, had made very serious efforts to, to
maintain or to obtain custody of her child.” In considering the second factor regarding “whether
the birth parent(s) are currently willing and able to assume full custody of the child,” the circuit
court held that “mother is willing and able to assume custody of the child.” In considering the
fourth factor regarding “the birth parent(s)’ ability to care for the child,” the circuit court held
that mother was able to care for the child.
For the remaining factors, the evidence did not support the circuit court’s findings, and
the circuit court inappropriately placed too much weight on the length of time that mother had
not seen the child while she was pursuing her appeals. For example, in considering the third
factor regarding “whether the birth parent(s)’ efforts to assert parental rights were thwarted by
- 10 - other people,” the circuit court found that in her daughter’s early years, mother “had very little
involvement” with her, primarily because of her drug addiction and incarceration. Then, the
circuit court held that mother’s parental rights were not thwarted by other people after she was
released from prison. However, it noted that there were contested, legal proceedings, which
“may have prevented” mother from asserting her parental rights. The circuit court ignored the
evidence that mother wrote to daughter and to aunt while she was in prison, and aunt told mother
that she was “going to . . . do her best to keep [mother] out of [daughter’s] life.” Aunt did not
tell daughter about the letters or that her mother was trying to contact her.
Similarly, in analyzing other Code § 63.2-1205 factors, the circuit court erroneously held
against mother the time that she was apart from daughter while the litigation and appeals were
proceeding. With respect to the fifth factor and the child’s age, the circuit court found that
daughter was twelve years old and had been living with the aunt for many years. However, the
circuit court ignored the facts that mother had filed a petition for visitation in 2011 and the
lengthy court proceedings prevented her from having her case heard in circuit court from 2011
until 2017. In considering the sixth factor regarding “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 circuit court found that “there has been little, if any, relationship between the
mother and [daughter].” The circuit court noted that “since the incarceration, there still has not
been a, a quality relationship” and that “[t]here’s essentially no relationship now.” However, the
lack of a current relationship between mother and daughter resulted from the length of the court
proceedings, not mother’s actions. Mother had been trying to have a relationship with daughter
since she was incarcerated by writing letters and filing for a motion to modify visitation as soon
as she was released from prison. With respect to the seventh factor and “the duration and
suitability of the child’s present custodial environment,” the circuit court found that “it has been
- 11 - a steady custodial relationship that has been continuous for many years now.” Again, the circuit
court focused on conditions that were out of mother’s control. Daughter had been in the same
situation despite mother’s attempts to have her case heard. In considering the eighth factor and
“the effect of a change of physical custody on the child,” the circuit court held that it would be
“very difficult to know” how a change in physical custody would affect daughter. There was no
medical or expert evidence offered on this factor. The circuit court noted that daughter was
thriving in her current environment.
The circuit court’s findings relied heavily on the fact that mother had not seen daughter
since 2009; however, the circuit court ignored aunt’s actions and the length of the court
proceedings. Accordingly, we find that the circuit court did not properly consider the Code
§ 63.2-1205 factors in light of the evidence presented, so the circuit court’s ruling that mother
withheld her consent to the adoption contrary to the best interests of the child is reversed and
remanded. See Geouge, 68 Va. App. at 371, 808 S.E.2d at 554 (“so long as the circuit court
properly considered the statutory factors, we can reverse its conclusions only if they are beyond
the pale of reasonableness).
D. Due process Mother argues that the circuit court violated her due process rights “by committing errors
against her that resulted in the trial of this case beginning on September 16, 2011 and eventually
ending on August 31, 2017.”
“[A]s an appellate court, we seek the best and narrowest ground available for our
decision.” Geouge, 68 Va. App. at 377, 808 S.E.2d at 557 (quoting Harvey v. Commonwealth,
65 Va. App. 280, 285 n.2, 777 S.E.2d 231, 234 n.2 (2015)). Therefore, considering the above
holdings, we will not address this assignment of error.
- 12 - CONCLUSION
The circuit court abused its discretion by not considering the Code § 20-124.3 factors or
the Code § 63.2-1205 factors in light of the procedural history and evidence presented. We
therefore reverse these decisions and remand for further proceedings.
Reversed and remanded.
- 13 - Petty, J., concurring.
I concur with the majority that this case must once again be remanded to the trial court
for further consideration. I choose to write separately, however, because I believe that there is an
additional consideration that, like the proverbial elephant in the room, cannot be ignored. When
weighing the factors set out in Code § 63.2-1205, the trial court must be mindful that the
“meaning of ‘the best interests of the child’ is different in the context of adoptions, and must be
read in light of the biological parent’s due process rights in her relationship to her child.”
Copeland v. Todd, 282 Va. 183, 197, 715 S.E.2d 11, 19 (2011).
The United States Supreme Court has “recognized on numerous occasions that the
relationship between parent and child is constitutionally protected.” Quilloin v. Walcott, 434
U.S. 246, 255 (1978).
We have little doubt that the Due Process Clause would be offended [if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.
Copeland, 282 Va. at 198-99, 715 S.E.2d at 19 (alteration in original) (quoting Quilloin, 434
U.S. at 255). Moreover, “[t]o separate a child from its parents, the evidence of their unfitness
must be cogent and convincing.” Judd v. Van Horn, 195 Va. 988, 995, 81 S.E.2d 432, 436
(1954).
Here, the circuit court made specific findings that “mother is willing and able to assume
custody of the child,” that mother “does appear to be able to care for the child,” and that “there’s
no indication that the mother could not [meet] the emotional, intellectual, and physical needs of
[daughter].” Nothing in the record indicates that the circuit court found cogent and convincing
evidence that would overcome “the [mother’s] due process rights in her relationship to her
child.” Copeland, 282 Va. at 197, 715 S.E.2d at 19. On remand, “[t]he eight factors in Code
- 14 - § 63.2-1205 . . . compel [the] court to consider whether [in this case] a parent’s unfitness would
be harmful to the child’s welfare.” Id. at 199, 715 S.E.2d at 24.
- 15 -