COURT OF APPEALS OF VIRGINIA

Present: Judges Chaney, Raphael and Callins Argued at Richmond, Virginia

PARKER KEEFE PAPPAS

v. Record No. 0957

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NICOL L E VAN ALLEN AND FRANCIS VAN ALLEN MEMORANDUM OPINION * BY JUDGE DOMINIQUE A. CALLINS JENNA VAN ALLEN MAY 23, 2023

v. Record No. 098 1

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NICOL L E VAN ALLEN AND FRANCIS VAN ALLEN

FROM THE CIRCUIT COURT OF HANOVER COUNTY

J. Overton Harris , Judge Catherine L. Scott (Virginia F. Podboy; The Railside Law Group, PLLC, on brief), for appellant Parker Keefe Pappas.
Dana Chenevert (Elizabeth C. Brackins; Brackins Law, PC, on brief), for appellant Jenna Van Allen.
Theresa Rhinehart ( Christopher K. Peace , Guardian ad litem for the minor children, on brief

) , for appellees.

Jenna Van Allen ( m other ) and Parker Keefe Pappas ( f ather) appeal the trial court’s final order of adoption

. Mother and f ather (collectively, p arents) argue that the trial court erred by finding the evidence sufficient to grant the adoption over their withheld consent. Specifically,
p arents argue that the trial court erred by bas ing its findings on a preponderance of the evidence standard, rather than a clear and convincing evidence standard. Parents also argue that the trial

* T his opinion is not designated for publication. See Code § 17.1

- 413. UNPUBLISHED- 2

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court erred by failing to evaluate and properly consider all of the statutory factor s in Code § 63.2

- 1205 in determining that their respective consent to the adoption was being withheld contrary to the best interests of the children. For the following reasons, we affirm the judgment
of the trial court.
BACKGROUND 1
“Because the [ trial ] 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 (2017) ( second
and third alteration s in original) (quoting Bristol Dep’t of Soc. Servs. v. Welch , 64 Va. App. 34, 44 (201 4)). We recite the evidence in the light most favorable to Nicol l e Van Allen and Francis Van
Allen ( collectively, g randparents ) , as they prevailed in the trial court. Id.
Mother and f

ather are the biological parents to the children, M

. P

. and E

. P

. , who a re the subject of the adoption proceedings. M

. P

. was born in 2012 , and E

. P

. was born in 2015. Mother
and f ather were married at the time each child was born

. Grandparents are m other’s biological parents

. Father has an extensive criminal and substance abuse history. Mother also has a criminal history and has been a “heroin addict .

. . for years.” In July 2014, due to m other ’s substance abuse
and f ather ’s incarceration at the time, the Hanover County Juvenile a nd Domestic Relations District Court (JDR c ourt) awarded joint legal custody of M

. P

. to m other , f ather , and g randparents, with supervised visitation to m other and f ather at the discretion of g randparents. In October 2017, the

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues parents ha ve raised. Evidence and factual findings below that are necessary to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall , 294 Va. 283, 288 n.1 (2017).- 3

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JDR c ourt entered an o rder requiring m other and f ather to have visitation with M

. P

. every other
weekend , with the visitation s to increase to three weekends per month beginning in December 2017

. The JDR court also ordered m other , f ather , and g randparents to par ticipate in family therapy. All parties were ordered to remain drug and alcohol free while in the presence of M

. P. Father relapsed , and returned to jail in September 2018 on drug

- related charges. By December 2018, the JDR c ourt awarded sole legal and ph ysical custody of M

. P

. to
g randparents, with visitation to m other at the discretion of g randparents. The December 2018 order was silent regarding f

ather ’s visitation rights but state d that f ather did not object to the entry of the
order . As for E

. P

. , the JDR c ourt awarded joint legal and physical custody to g randparents, with
visitation to m other and f

ather at the discretion of g randparents , in June and November 2018

. Father remained incarcerate d through May 2020. Upon his release, f ather completed a
six

- month residential rehabilitation program. Father communicate d over the phone with the children during his incarceration and rehabilitation but had no physical contact with the children during this time. Mother also had had no physical contact with the children for approximately three months leading up to June 2020. Seeking stability for the children, in June 2020, g randparents filed a petition for adoption in the trial court. Mother and f ather did not consent to the adoption. On July 16, 2021, the parties appeared before the trial court to be heard on g randparents’ petition for adoption. Mother and f ather reiterated that they did not consent to the adoption.
Father testified that , o ver the p revious seven years, he spent four of those years incarcerated.
Father could not recall how many times he had been convicted during those seven years. He acknowledged that he had several new criminal ch arges since his last incarceration that ended in May 2020 , including “three possession charges and a DUI.” Father did not have a driver’s
license. Father stated that he presently owned a tile company that provided him the funds necessary to pay $3,000 for an attorney to represent him in his criminal matters. As for his- 4

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housing, f

ather testified that he and m other had been sharing a three

- bedroom home with a friend for two weeks. According to f ather , the friend had no history o f drug use , and there was an extra
room in the house available for the children

. Father testified that g randparents had custody of M

. P

. for approximately seven years and custody of E

. P

. “since the last time I went to jail

. . . . So a couple of years.” When asked if he believed that his children were being well taken care of by g randparents, f ather stated that
Nicolle Van Allen had an “alcohol problem , ” although Ms. Van Allen denied this allegation later during the hearing. Father also testified that the paternal grandmother had requested visitation with the children; however, f ather believed that his “ m other shouldn’t see [his] kids or have any contact with them as long as she’s with the guy who was accused of molesting my daughte r.”
Mother testified that , over the last seven years, she had lived in “five or six” different places , including “ recovery houses ” due to relapses in her substance abuse. According to

m other , she had been in rehabilitation for her substance abuse on thre e occasions. T here was

a lso a period in 2018 when she was a “missing person.” In October 2020, m other was hospitalized “with a heart infection.” Mother stated that she had been sober for 101 days as of
the date of the trial court hearing and felt she wa s “able to have full custody of t he children

. ” As for her income, m other testified that she had been working for f ather ’s company by cleaning
houses. She earned eighteen dollars per hour, working “about three” days per week. She also collected food stamps. Mother did not have a budget in mind for providing for her children. According to m other , she had visited with her children on a weekly basis for the last year. She acknowledged that M

. P

. and E

. P

. had resided with g randparents for most of their lives.
Mother agreed that the paternal grandmother, who had a relationship with an individual accused of molesting M

. P

. , should not have contact with the c hildren. Mother objected to g randparents adopting the children despite m other ’s “relapses and .

. . struggles with drugs.” Mother stated,- 5

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“I’m really trying

. . . . And I just want that chance to prove that I can do it and not just take my rights and te rminate them.” Neither m other nor f ather ha d petitioned for legal custody of the
children. Considering the trauma in the children’s li v e s due to p arents’ substance abuse and
incarceration , g randparents started taking M.P. to therapy in 2016. E.P. began participating in therapy sessions some years later. According to the children’s therapist, M

. P

. was “secure in her relationship with [ g randparents] and really looked to them for emotional support, as wel l as for
structure in her home and rules and enforcement of rules.” The children’s therapist testified that it would be “very emotionally unsettling for the children ” if they were placed back in the physical custody of m other and f ather . The children’s t herapist added that the children were accustomed to the stability of g randparents’ home and that they had “ their social peer group

. . . in that community. They go to that school. They have a secure emotional connection to [ g randparents] and to that comm unity that they have known consistently their entire life.” The children’s therapist observed the children in g randparents ’ care to be “healthy,” “well

- dressed,”
“well

- fed,” and “developmentally on track” and had no concerns about g randparents’ ability to
care for them. The children’s therapist also expressed concerns over p arent s ’ “immaturity” and “ability to put the children’s needs and safety first above all else.” Grandparents expressed similar concerns. According to Francis Van Allen , before the adoption proceedings began, m other and f ather ’s involvement in the children’s lives was “like a
roller coaster.” Mr. Van Allen stated that this was because f ather was inc arcerated and m other was “doing drugs, being clean, back and forth and stuff like that.” Ms. Van Allen expressed that she wanted stability for the children and that she was “not looking to take the children away from
their mom and dad. ” She explained tha t as long as m other and f ather were “clean and sober,” they could see the children.- 6

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After hearing the evidence and arguments , the trial court reviewed the standards delineated in Code § 63.2

- 1205 and found that m other and f ather had withheld their consent to the adoption contrary to the child ren’s best interests. The trial court granted g randparents’ petition for adoption and entered the final order of adoption on August 18, 2021. The trial court
reasoned that f

ather had been i ncarcerated for four of the previous seven years and that “ both birth parents have had drug issues at least for the past seven years with multiple periods of being sober but relapsing, with multiple rehabilitation periods.” T he trial court also found that the children were “thriving ” in g randparents’ custody and that “ it would be detrimental to change their physical custody.” Mother and f ather ’s appeals followed.
ANALYSIS
I. Evidentiary Standard
Mother and f

ather argue that the trial court erred by applying a preponderance of the evidence standard, rather than a clear and convincing evidence standard, in determining that m other
and f ather were withholding their consent to the adoption contrary to the best interests of the
child ren under Code § § 63.2

- 120 3 and

- 1205

. First, we find that this assignment of error is procedurally defaulted. “No ruling of the trial

court .

. . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown o r to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of Rule 5A:18 is ‘to ensure that the trial court and opposing party are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus a voiding unnecessary appeals.’” Friedman v. Smith , 68 Va. App. 529, 544 (2018) (quoting Andrews v. Commonwealth , 37 Va. App. 479, 493 (2002)). During the hearing, the trial court addressed the evidentiary standard on multiple occasions , without any object

ion raised by m other and f ather

. At the start of the hearing, t he court specifically- 7

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asked the parties if “the standard is by a preponderance of the evidence,” and m other and f ather did not respond or make any objection. Then , w hen issuing its ruling, th e trial court stated that certain facts had “been established by a preponderance of the evidence , ” and m other and f ather still did not raise any objection

. By failing to make a timely objection, m other and f ather failed to “afford the trial judge a fair opportunity to rule intelligently on [the] objections while th ere [was] still an opportunity to correct [the] errors in the trial court.” Vasquez v. Mabini , 269 Va. 155, 163 (2005).
Second , even if m other and f ather had preserved their evidentiary standard argument for appeal, the record shows that the court ultimately applied the correct evidentiary standard to its ruling. When issuing its ruling, t he trial court stated that “the evidence is clear and convincing ” that
g randparents’ home was “a suitable, stable and safe environment for raising these children” and also stated that “the evidence establishes . . . by clear and convincing evidence” that g randparents have “not thwarted the efforts of the parents to . . . assume a proper parental goal. They’ve encouraged
it.” And, most importantly , in its final order of ad option, the trial court stated that “the Court finds, based upon clear and convincing evidence, that the birth parents’ consents are required but are being withheld contrary to the best interests of the children.” It is well

- settled that “[a] court speaks through its orders and those orders are presumed to accurately reflect what transpired.” McBride v.
Commonwealth , 24 Va. App. 30, 35 (1997). Th erefore , the record shows that the trial court corrected itself and applied the correct evidentiary standard o f clear and convincing evidence to its ruling.
I I

. Code § 63.2

- 1205 Factors
Mother and f

ather argue that the trial court erred in finding that their consent to the adoption was being withheld contrary to the best interests of the children , assert ing that the trial court failed to evaluate and properly consider all of the statutory factors enumerated in Code § 63.2

- 1205.- 8

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“‘[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 (alteration s in original) (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000) (plurality opinion)). Since adoption necessarily involves the termination of parental rights, these rights “may not be lightly severed.” Malpass v. Morgan , 213 Va. 393 , 400 (1972). “We consistently have 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 (2011). “Virginia’s statutory scheme for adoption, incl uding 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. Code § 63.2

- 1205 states, in relevant part, as follows:
In deter mining 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. Here, t he record shows that the trial court pro perly considered and evaluated all of the
factors in Code § 63.2

- 1205 in concluding that the consent of m other and f ather was being withheld contrary to the best interest s of the children. At the hearing, t he trial court explained
that g randparents had custody of the children for most of the children’s lives and that m other and
f ather had “not filed a petition for a Motion to Amend to grant them custody of the children.”- 9

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The trial court emphasized that , based on th e evidence , g randparents were the “pertinent people that [the children] consider[ed] to be the ones exercising the parental role of them.” The trial court also noted that the children were very young

— nine and five

— and that “the fact that [ m other and f

athe r ] would like to

. . . someday be able to provide for [the children] doesn’t
overcome the fact [] . . . that [ g randparents] are the people who have been doing it.”
The trial court also explained that the evidence established that m other and f ather were unable to assume full custody because there was no evidence demonstrating that their living arrangement constituted a proper environment for the children. On the other hand, the trial court
found that g randparents’ home “has been and continues to be both a suitable, stable and safe environment for raising these children.” The trial court also noted that f ather had pending criminal charges that could result in multiple years of incarceration, and m other , “when not in a recovery house or a rehabilitat ion program, [has] been at the mercy of whoever she could find to
allow her to live with them.” Th ese considerations led the trial court to conclude that parents were unable to provide for and assume full custody of the children.
T he trial court also fou nd that g randparents did not thwart the efforts of m other and f ather to resume their parental duties, but instead encouraged it. The trial court emphasized that the quality of the relationship between parents and the children was compromised by parents’ o wn “addiction to substance abuse, the commission of crim[es , ]

. . . excessive periods of incarceration, rehabilitation programs, stays in recovery houses, [and] living

. . . a nomadic life.” Lastly, t he trial court agreed with the children’s therapist that the effect of changing physical custody from g randparents to m other and f ather would be “emotionally unsettling” for the
children. The trial court found that the children were “thriving” in g randparents’ custody and
that “it would be detrim ental to change their physical custody.”- 10

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Having c onsider ed the record before us, we hold that the trial court did not err in finding that the adoption was in the child ren ’s best interests and that m other and f ather had withheld their consent to the adopti on contrary to the child ren’s best interests. “When, as here, the [trial] court reviewed the statutory factors, based its findings on evidence presented, and did not commit legal error, there is no basis for this Court to reverse its decision.” Geouge , 6 8 Va. App. at 372.
CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed

.