Kathleen G. Rocker v. Timothy E. Brown & Anne Brown

• Court: Court of Appeals of Virginia
• Decided: August 25, 1998
• Docket: 0392982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Baker

KATHLEEN G. ROCKER MEMORANDUM OPINION * v. Record No. 0392-98-2 PER CURIAM AUGUST 25, 1998 TIMOTHY EARL BROWN AND ANNE MARIE TOLER BROWN

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge (Kathleen G. Rocker, pro se, on briefs).

(Rose McC. Alexander, on brief), for appellees.

Kathleen G. Rocker appeals the decision of the circuit court

granting the petition filed by Timothy Earl Brown and Anne Marie

Toler Brown to adopt Christina Marie Schutte. Ms. Rocker is the

mother of Christina's birth father, Joel Rocker. On appeal, Ms.

Rocker contends that the trial court erred by: (1) not applying

the best interests of the child criteria as required by Code

§§ 20-124.3 and 63.1-225.1; (2) failing to consider the

relationship established between Kathleen Rocker and the child,

contrary to the best interests of the child; (3) not first

requiring the adoptive parents to petition for an interlocutory

order of adoption as required pursuant to Code § 63.1-230 prior

to granting the adoptive parents "leave to submit a final order

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. of adoption to the court"; (4) overriding the primacy of the

parents to the care and custody of the child without first

finding the birth father to be unfit; (5) determining that the

birth father withheld his consent to the adoption contrary to the

best interests of the child; and (6) failing to consider that the

birth father's efforts to assert parental rights were thwarted by

other people pursuant to Code § 63.1-225.1. In their brief, the

Browns also raise as an issue whether Kathleen Rocker has

standing to bring this appeal. Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the

trial court. See Rule 5A:27.

Kathleen Rocker and her son objected to the petition to

adopt filed by the Browns. They jointly filed a Memorandum in

Support of Objection to Adoption. In that memorandum, the only

issue argued was that the evidence did not support a finding that

Joel Rocker withheld his consent contrary to the best interests

of the child. The memorandum also indicated that Kathleen Rocker

objected to the adoption because she had not received visitation

as previously ordered.

The final order of adoption noted that "father excepts and

objects for the reasons previously heard." However, no

objections appear on the face of either the order which found

that Joel Rocker withheld his consent to the adoption contrary to

the best interest of the child or the final order of adoption.

-2- The Rockers did not file a motion to reconsider. No transcript

or written statement of facts preserving objections made by

either Joel Rocker or Kathleen Rocker is included in the record.

The Court of Appeals will not consider an argument on appeal

which was not presented to the trial court. See Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18). The record does not indicate that Issues 2,

3, or 6 were raised before the trial court. The onus of

providing a sufficient record on appeal falls upon Kathleen

Rocker as the party seeking to reverse the circuit court's

decision. See White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856,

858 (1995). "We cannot assume that appellant's objection and

reasons were proffered but not made a part of the record. Rule

5A:8 requires appellant to present a complete transcript for this

Court to consider his or her issues on appeal." Lee v. Lee, 12

Va. App. 512, 516, 404 S.E.2d 736, 738 (1991) (en banc).

Accordingly, Rule 5A:18 bars our consideration of Issues 2, 3,

and 6 on appeal. Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

The remaining Issues 1, 4, and 5 arguably were raised by the

Memorandum in Support of Objection to Adoption when the birth

father objected to the adoption of the child. See Code

§ 63.1-225. However, Joel Rocker did not appeal the circuit

court's order granting the adoption. Kathleen Rocker has no

-3- statutory authority to assert her son's arguments regarding the

adoption. "[I]t is well settled that 'in order to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation; either in his own right or in a representative capacity.'"

Pearsall v. Virginia Racing Comm'n, 26 Va. App. 376, 381, 494

S.E.2d 879, 882 (1998) (quoting Citizens for Clean Air v.

Commonwealth ex rel. State Air Pollution Control Bd., 13 Va. App.

430, 435, 412 S.E.2d 715, 718 (1991)). "An individual or entity

does not acquire standing to sue in a representative capacity by

asserting the rights of another, unless authorized by statute to

do so." W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377,

383, 478 S.E.2d 295, 300 (1996).

This case is distinguishable from Thrift v. Baldwin, 23 Va.

App. 18, 473 S.E.2d 715 (1996), in which we held that, following

termination of parental rights and subsequent adoption,

grandparents and siblings still retained standing to seek

visitation as a "party with a legitimate interest" under Code

§ 16.1-241(A)(6), despite the absence of any legal relationship. Id. at 20, 473 S.E.2d at 716. But the visitation rights which

the parties were pursuing were their own. Kathleen Rocker may

not assert as her own claims whatever arguments Joel Rocker could

have raised on appeal.

In summary, we find no evidence that Issues 2, 3, and 6 were

raised before the trial court or preserved for review on appeal.

-4- We find that Kathleen Rocker lacks standing to raise on appeal

Issues 1, 4, and 5 which challenge the trial court's finding that

Joel Rocker withheld consent to the adoption of the child

contrary to the best interests of the child.

Accordingly, the decision of the circuit court is summarily

affirmed.

-5-