COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

RICHARD JAMES SELL and 

 DIANE LYNN SELL 

 MEMORANDUM OPINION* BY 

v. Record No. 2946-96-1 JUDGE NELSON T. OVERTON 

 SEPTEMBER 23, 1997 

BENITO MARTIN PALMARINI 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Morris B. Gutterman, Judge Designate 

 David T. Daulton (The Berean Law Group, on 

brief), for appellants. 

 No brief or argument for appellee. 

 Richard J. Sell appeals from a decision of the trial court 

denying his petition for adoption of Courtney Lee 

Brooks-Palmarini, the natural child of Diane Sell and Benito 

Palmarini. For the reasons that follow, we reverse and remand 

for proceedings consistent with this opinion. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, we recite only those facts necessary to the 

disposition of this appeal. 

 In 1984 Courtney Brooks-Palmarini was born to Benito 

Palmarini and Diane Brooks, now Diane Sell. Mr. Palmarini 

claimed paternity of the child, but Courtney has been in the care 

of her mother since birth and has lived with both her mother and 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

Mr. Sell since they were married in 1988. Mr. Palmarini was 

awarded visitation in 1990 and was ordered to pay child support 

in 1991. The record does not give a full picture of the 

relationship between Mr. Palmarini and Courtney, but the evidence 

presented at trial indicates that they enjoyed a good deal of 

contact. Whatever the quality of the relationship was before 

1993, it is clear that after June 1993 Courtney's feelings for 

her father changed. Subsequent to a two week summer vacation 

with her father she wrote him a letter stating that "I never want 

to hear from you again not even see you because I don't love you 

anymore." These negative feelings were due to friction between 

Courtney and Mr. Palmarini which occurred during the vacation. 

 After Courtney made her feelings known, Richard Sell filed a 

petition for adoption in the City of Virginia Beach Circuit 

Court. At the adoption proceeding, the trial court took evidence 

from both parties and denied the petition. It cited Mr. 

Palmarini's good record of support payments and a reluctance "to 

sever ties of a blood relationship" as reasons for the denial. 

Mr. Sell appeals. 

 In order for an adoption to be granted, Code § 63.1-225 

requires the consent of both natural parents unless an exception 

applies. Code § 63.1-225(F) creates an exception when the court 

has determined that consent is withheld against the best 

interests of the child. The standard which courts must follow 

when making that determination is set out in Code § 63.1-225.1 
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which states in pertinent part: 

 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 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. 

It is in this determination that Mr. Sell ascribes error. He 

contends that the trial court failed to consider the statutorily 

mandated factors when determining Courtney's best interests. 

After careful consideration of the record, we agree. 

 "Absent clear evidence to the contrary, we will presume that 

the trial judge applied the correct standard to the facts." 

Starks v. Commonwealth, 225 Va. 48, 54, 301 S.E.2d 152, 156, 

(1983) (citing Yarborough v. Commonwealth, 217 Va. 971, 978, 234 

S.E.2d 286, 291 (1977)). However, in the instant case, the trial 

court cited only two reasons for making its determination; Mr. 

Palmarini's fulfillment of his financial obligations and his 

disinclination to separate blood relatives. While these are 

important, relevant factors, they must be considered in light of 

all the elements mandated by Code § 63.1-225.1. See Hickman v. 

Futty, 25 Va. App. ____, ____, ____ S.E.2d ____, ____ (1997). 

Although we recognize that the trial court may, in fact, have 

considered these elements, its failure to state on the record 
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that they were considered constitutes "clear evidence" that the 

proper standard was not applied in this case, and the petition 

was prematurely denied. 

 We therefore reverse the decision of the circuit court and 

remand for consideration of the petition in a manner not 

inconsistent with this opinion. 

 Reversed and

remanded.