COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Fran k and Clements

CHARLES EDWARD REED, III MEMORANDUM OPINION * v. Record No. 04 66-01-4 PER CURIAM AUGUST 14, 2001 MICHAEL ABBOTT HERSAM AND REBECCA ANN HERSAM

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY James W. Haley, Jr., Judge (Timothy W. Barbrow, on brief), for appellant. No brief for appellee Michael Abbo tt Hersam. (Rebecca Ann Hersam, pro se , on brief).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Charles Edward Reed , III, contends the trial judge erred in finding that (1) Re ed's continued rela tionship with his illegitimate child, CJ R, would be detrimenta l to the child; (2) the adoption of CJR by Michael He rsham was in th e child's best interests; and (3) he unreasonably withhe ld consent to that adoption. Upon revi ewing the reco rd and the br iefs of the parties, we conc lude that this appeal is withou t merit. Accordingly, we summarily affirm the commission 's decision. See Rule 5A:27.BACKGROUND Under familiar principles, we review the eviden ce on appeal in the light most fa vorable to the party who prevaile d below, giving it all re asonable inferences fair ly deducible therefrom.
See Farley v. Farley , 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). On Janu ary 24, 2001, the trial court conducted a hearing on Michael and Rebe cca Hersam's petiti on to adopt CJR. 1 Reed, CJR's biological father, was inca rcerated at the time of CJR's birth and has rema ined continuously incarc erated since that time. Rebecca Ann Hersam , nee Rebecca Ann John (mother), gave birth to CJR on May 26, 1995. Reed and mother never married. CJR was six years old at the time of the hearing. Mother testified that she took CJR, who was th en less than one year old, to visi t appellant "on a couple of oc casions while he was in a local jail ." Due to the inap propriatenes s of the setting and becaus e Reed focused more on mo ther than CJR, mother stopped the visita tion. The last visit to ok place when CJR was approximately one year old. Mother ac knowledged th at Reed had written letters to CJR; however, she felt that his "references to criminal activity" were inappropriate for a child. William Tignor, Director of the Stafford County Department of Social Services, invest igated the Hersams' pe tition for adoption,

1 The record does not contain a transcript of the hearing; therefore, we rely on the recitation of facts from the written statement of facts signed by the trial judge.

- 2 -conducted a home study, and prepared a report that was admitted into the record. Tignor found the home clea n and well-f urnished. According to Tignor, th e Hersams "are wonderfu l parents, very good with kids. They trea t their children with love, co nsideration, and patience." CJR is in excell ent health and his mental and emotional deve lopment are no rmal. He enjoys "a warm and loving relationship with th e [Hersams]." Mother 's husband, Michael Hersam, "is the only father that [CJR ] has known." Tignor indicated in his repo rt that CJR "has no knowledge of his biological father and has no relationship wi th him." Moreover, he reported that Reed has a "viole nt, possessive pe rsonality" and that the mother wa s fearful of him. Based on Reed's circumstances, Tignor opined that hi s refusal to co nsent to the adoption unreasonably withheld an op portunity for CJR "to have permanence." Tignor unequivocally fo und the Hers ams to be suitable parents for adoption. Mother married Mich ael Hersam (Hersham) on July 27, 1996. Hersam has been a self-e mployed truck dr iver for eleven years. He owns his own truck, ma kes $60,000 per year, and prov ides health and life insurance for himself, the mother, CJR and the Hersams' other three chil dren. Mother ceased all co ntact with Reed in 1996 when he advised he r of his activiti es in prison, su ch as gambling, taking drugs and joinin g a gang. Hersam ha s supported CJR since 1996, and CJR refe rs to his stepfa ther as "Dad."

- 3 -Reed testified that he "is serving a 70 year sentence, with 50 years suspende d." The senten ces were the re sult of 1989 convictions invo lving six burg laries and six larcen ies. He was on probation when he fathered CJR out of wedlock an d when he committed acts which le d to his presen t incarceration. He became eligible for parole in 1997, but has be en turned down every year. On August 17, 2000, Re ed was denied parole due to "his serious disregard for prop erty rights and his prev ious failure to obey laws while on probation. " Reed's mandatory re lease date is August 11, 2007. A Department of Correction s report admitted at the hearing indica ted that Reed's "anticipated " release da tes "are based on the assumption that [Reed] will co ntinue to earn good time" and that he will not have "good time " credits dedu cted "as a result of misbeh avior." Reed te stified that "he suffered from medical problems which limit his abil ity to work while incarcerated and will interfere and ha mper his job opportunities upon his release." Reed's father test ified that mother "b rought [CJR] to his home for less than 10 visits in 1995" and that he sent small sums of money to the child on special occasions. The trial court found that Reed withheld his co nsent contrary to the best interests of CJR and that a co ntinued rela tionship would be detrimental to the chil d's welfare. The trial court further found "tha t no relationship had ev er existed between Mr. Reed and his child du e in part to" Reed's criminal activity.

- 4 -ANALYSIS "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 v. Spotte , 4 Va. App. 530, 532, 359 S.E.2d 315, 317 (1987). "The trial court'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." Id. at 537, 359 S.E.2d at 319-20. An adoption of a child may be orde red without the birth parent's consent "if that parent's consent to the adoption is be ing withheld 'contrary to best interests of the child as se t forth in [Code] § 63.1-225.1.'" Hickman v. Futty , 25 Va. App. 420, 426, 489 S.E.2d 232, 23 4 (1997) (citation omitted). Code § 63.1-225.1 pr ovides, in pertinent pa rt, as follows: In determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, . . . the court shall consider whether the failure to grant 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

- 5 -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. Under the statut e, "not only must th e prospectiv e adoptive placement serve the child's best intere sts, but the continued relationship with the non-consenti ng parent must prove to be detrimental." Hickman , 25 Va. App. at 431, 489 S.E.2d at 237. Applying this stan dard, we have he ld as follows: 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. That relationship, as it was under the prior case law, is evaluated in terms of 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. "Finding that the continuation of a poor, strained or nonexistent 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, make an informed and rational judgment and determine that the continued relationship between a child and a

- 6 -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). Moreover, a child need not be in a desperate situation before an adoption may be ordered over the natural parent's objection. Each case must be carefully considered on its own facts and circumstances and a showing of abandonment, unfitness or other extreme parental misconduct, while significant, does not always have to be shown before the adoption may be granted without parental consent. Frye , 4 Va. App. at 536, 359 S.E.2d at 319. The evidence supports the trial court's fi ndings that Reed's continued relati onship with CJR wo uld be detrimenta l to the child, that the adoption of CJR by Hersam was in the child's best interest and that Re ed unreasonably with held consent to the adoption. Reed, who has be en incarcerated the ch ild's entire life, has had no relationship wi th CJR. More over, it was Re ed's criminal activity that th warted him from seeing CJR and establ ishing any relationship. The chil d, who was six years ol d at the time of the hearing, knows little if anything about Reed and certainly does not view Reed as his fa ther. The evidence in dicated that Reed has made inappropriate refe rences in corr espondence to CJR and that Reed has an aggressive pers onality of which mother is apprehensive. Even if Reed is released in 2007, he and CJR, who

- 7 -would be twelve at th e time, would be virtua l strangers. Reed's ability to work and support CJR is limi ted due to medical problems. Meanwhile, CJR lives in a caring and loving environment with his mother and th e only man he has ever identified as his father. The Hersams provide CJR wi th financial and emotional support, and the child is thriving with the only family he has ever known. Accordingly, the judgment of the trial court is affirmed. Affirmed.

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