Steve Starkell v. Thomas L Geris & Glenda J Geris

• Court: Court of Appeals of Virginia
• Decided: November 26, 2002
• Docket: 2227014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Clements

STEVE STARKELL MEMORANDUM OPINION * BY v. Record No. 2227-01-4 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 26, 2002 THOMAS L. GERIS AND GLENDA J. GERIS

FROM THE CIRCUIT COURT OF STAFFORD COUNTY James W. Haley, Jr., Judge

(Timothy W. Barbrow, on brief), for appellant. Appellant submitting on brief.

No brief or argument for appellees.

No brief or argument by the child's guardian ad litem.

Steve Starkell appeals from a final order of the trial court

granting the petition of Thomas and Glenda Geris to adopt

Starkell's birth daughter, A.Q.S. Starkell contends the trial

court erred in finding (1) his consent to the adoption was being

withheld contrary to the best interests of the child, (2) his

continued relationship with his daughter would be detrimental to

her welfare, and (3) the adoption was in the best interests of the

child. Finding no error, we affirm the judgment of the trial

court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

proceedings as are necessary to the parties' understanding of the

disposition of this appeal.

I. BACKGROUND

The Gerises filed a petition to adopt A.Q.S. on September 14,

2000. The natural mother gave her written consent to the adoption

on September 26, 2000. Starkell refused to consent to the

adoption.

The trial court conducted a hearing on the Gerises' petition

to adopt A.Q.S. on August 6, 2001. 1 The evidence established that

A.Q.S. was born to her unwed parents, Deborah Lynn Bacon and

Starkell, on December 17, 1995. Starkell testified Bacon had drug

problems and he was the child's primary caregiver from her birth

until June of 1997, when he was no longer able to care for the

child. At that time, Starkell left A.Q.S., who was one and a half

years old, with the Gerises, whom he had met only one time

previously. The child has resided with the Gerises continuously

since August of 1997.

Mrs. Geris was awarded temporary custody of A.Q.S. in

November of 1997. Starkell subsequently visited his daughter one

to two times a month for a couple of hours. Because he had no

1 The record in this case contains a written statement of facts in lieu of a transcript of this hearing.

- 2 - regular job or place to live, Starkell had very limited overnight

visits. According to Mrs. Geris, Starkell referred to the child

as his "little meal ticket" because he could obtain free meals

from restaurants and strangers when A.Q.S. was with him. Mrs.

Geris was awarded full custody of the child in January of 1999.

On December 10, 1999, Starkell entered Alford pleas to two

counts of aggravated sexual battery and was found guilty of having

sexually abused A.Q.S. between April 1, 1997, and June 30, 1998.

He was sentenced to ten years on each charge, to run

consecutively, with seven years suspended on each charge.

Starkell was also ordered to have no contact with A.Q.S.

Mrs. Geris testified that, soon after A.Q.S. came to live

with her, she noticed that the child exhibited severe emotional

problems. She would not eat, allowed food to sit in her mouth for

up to two hours, often woke up in the night screaming from severe

night terrors, appeared to be developmentally delayed, and was

extremely aggressive. According to Mrs. Geris, the child's

behavior was always worse after visitation with Starkell. Mrs.

Geris also testified that, following the child's visitation with

Starkell, A.Q.S. would describe a sexual game she played with a

man. The child was subsequently diagnosed with Post Traumatic

Stress Disorder resulting from the abuse she suffered from

Starkell.

According to Mrs. Geris, however, the child has received

counseling and has greatly improved. She now sleeps through the

- 3 - night, eats well, enjoys school, and is a happy, well-adjusted

child. Although A.Q.S. is still developmentally delayed, Mrs.

Geris works with her teachers to assist the child. The child has

also adjusted well to the Gerises' home. She assists with

household chores, including feeding the two horses, and has her

own cat. She is also very attached to the Gerises' six-year-old

son.

The Gerises were married in 1990. It was the second marriage

for both of them. In addition to their six-year-old son, they

both have adult children from their previous marriages. They are

purchasing the home where they have lived together for ten years.

They have a large family support system in the area, and both are

employed, although Mrs. Geris arranges her work schedule to be

home for A.Q.S. and her son, including taking time off in the

summer to be with them.

According to Mrs. Geris, she and Mr. Geris are the only

parents A.Q.S. knows. When shown pictures of her birth mother and

Starkell, A.Q.S. has no memory of them. The child has had no

contact with any other members of Starkell's family since she

began living with the Gerises.

Mrs. Geris, who was forty-eight years old at the time of the

adoption hearing, admitted she had had two of her children removed

from her home when she was in her early twenties because she could

not care for them. She testified she had had a drug problem then

but is no longer using drugs. Mrs. Geris also admitted that one

- 4 - of her children had been committed to the Department of Juvenile

Justice and that, on one occasion, she had been found in contempt

of court for failing to pay child support. Mr. Geris admitted he

had been convicted of driving under the influence in the early

1990s and again in 1999.

At the adoption hearing, Starkell denied having abused A.Q.S.

and stated he pled guilty to save her from the ordeal of a trial.

He testified the Gerises not only accused him of the abuse charges

in order to win custody of the child but also denied him access to

the child after he had placed her with them. Starkell further

testified the police, prosecutor, and judge, along with the

Gerises, were responsible for his convictions. Starkell also

testified he loves A.Q.S. and wants to have a continuing

relationship with her after he is released from prison. However,

other than to state that, upon his release from prison, he would

find the person who really abused his daughter, Starkell had no

explanation as to how he would have a relationship with A.Q.S.

despite being ordered by the court to have no contact with her.

According to a report of investigation by the Stafford County

Department of Social Services introduced into evidence at the

hearing, the Gerises are suitable parents for adoption and

Starkell's consent to the adoption is being withheld contrary to

A.Q.S.'s best interests. The social worker who prepared the

report observed that Starkell's refusal to consent to the adoption

is "an act of self[ish]ness."

- 5 - At the conclusion of the hearing, the trial court granted the

Gerises' petition for adoption, finding (1) Starkell's consent to

the adoption was being withheld contrary to the best interests of

the child, (2) Starkell's continued relationship with the child

would be detrimental to the child, and (3) the adoption was in the

best interests of the child.

Starkell challenges those findings on appeal.

II. ANALYSIS

Under familiar principles of appellate review, we consider

the evidence and all reasonable inferences fairly deducible

therefrom in the light most favorable to the Gerises, 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 Garises' 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).

- 6 - "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. Moreover, "[a]doption

of a child may be ordered without the consent of the child's birth

parent if that parent's consent to the adoption is being withheld

'contrary to the best interests of the child as set forth in

[Code] § 63.1-225.1. 2 '" Hickman v. Futty, 25 Va. App. 420, 426,

489 S.E.2d 232, 234 (1997) (footnote added) (quoting Code

§ 63.1-225(F) 3 ). In making that determination, the trial court

must "consider the child's best interests vis-à-vis both the

prospective adoptive parents and the parent whose consent to the

adoption is being withheld." Id. at 432, 489 S.E.2d at 237.

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." Code § 63.1-225.1. In making that

determination, the court must consider "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

2 Subsequent to the entry of the final order in this case, Code § 63.1-225(F) was repealed and reenacted as current Code § 63.2-1203. 3 Likewise, Code § 63.1-225.1 was subsequently repealed and reenacted as current Code § 63.2-1205.

- 7 - and other children, if any." Hickman, 25 Va. App. at 431, 489

S.E.2d at 237. In evaluating the non-consenting parent's

relationship with the child, the court must consider "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.

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.

Here, the evidence clearly supports the trial court's finding

that Starkell's continued relationship with A.Q.S. would be

detrimental to the child. Not only did Starkell relinquish

custody of his one-and-a-half-year-old daughter to people he had

met only once before because he was no longer able to care for

her, he was subsequently convicted of having sexually abused his

daughter between April 1, 1997, and June 30, 1998, and ordered to

have no contact with her. Notwithstanding Starkell's speculative

and unsupported claims that "it is possible that the issues which

lead [sic] to the abuse could be dealt with through . . . therapy"

and that he "will be free upon his release to petition the [c]ourt

- 8 - for . . . modification" of the order prohibiting him from seeing

his daughter, "'past actions and relationships over a meaningful

period serve as good indicators of what the future may be

expected to hold.'" 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).

In addition, even were we to assume that Starkell might be

able at some point in the future to "deal with" the issues that

led him to abuse his daughter and to obtain modification of the

order prohibiting him from seeing his daughter, the record offers

no hint as to when, if ever, such events might occur. Indeed, the

fact that Starkell continues to blame others, rather than

himself, for his convictions plainly indicates he has made

little, if any, progress in that regard so far. "It is not in

the best interests of a child to spend a lengthy period of time

waiting to find out when, or even if, a parent will be capable of

resuming his responsibilities." Kaywood v. Halifax County Dep't

of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

The evidence also clearly supports the trial court's finding

that the adoption of A.Q.S. by the Gerises is in the child's best

interests. A.Q.S., who suffered severe behavioral and emotional

problems as a result of Starkell's sexual abuse, has, under the

custody and care of the Gerises, undergone counseling and been

able to recover in large part from that ordeal. She has adjusted

well to life in the Gerises' home, enjoys school, and is attached

- 9 - to the Gerises' six-year-old son. The Gerises have essentially

rescued A.Q.S. from the trauma caused by Starkell, given her a

nurturing and stable home life that meets her special needs, and

allowed her to have a secure, flourishing childhood. They

continue to provide her with financial and emotional support, and

the child is thriving under their care.

Moreover, the Gerises are the only parents A.Q.S. knows at

this point in her life. Starkell, thwarted from seeing A.Q.S. by

his own criminal behavior, has had no relationship with his

daughter since his conviction. A.Q.S., who was five and a half

years old at the time of the hearing, knows little if anything

about Starkell and certainly has no awareness of him as her

father.

Starkell argues that "serious questions exist about the

fitness of the Gerises as parents" because of their past problems.

The fact, he argues, that Mrs. Geris had two children from her

first marriage removed from her custody and that Mr. Geris was

recently convicted of driving under the influence is evidence that

the adoption is not in the best interest of the child. We

disagree.

Although Mrs. Geris lost custody of two of her children in

her early twenties, had a drug problem, and was found to be in

contempt of court for failing to pay child support, the evidence

is uncontroverted that she has remedied those problems and has

been a law-abiding, dedicated, and loving mother and caregiver to

- 10 - her six-year-old son and A.Q.S. Furthermore, although Mr. Geris

was convicted of driving under the influence as recently as 1999,

conduct which clearly causes concern and cannot be condoned, there

is no evidence that his unlawful conduct placed his son or A.Q.S.

in danger or otherwise rendered him unfit as a parent.

Therefore, the record supports the trial court's finding that

the Gerises presented clear and convincing evidence that the

adoption was in A.Q.S.'s best interests and that Starkell's

continued relationship with A.Q.S. would be detrimental to the

child. It necessarily follows, then, that the failure to grant

the adoption would be detrimental to A.Q.S. and that Starkell's

consent to the adoption was being withheld contrary to A.Q.S.'s

best interests. See Hickman, 25 Va. App. at 432, 489 S.E.2d at

237-38.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

- 11 -