COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, AtLe e and Senior Judge Clements

LARRY ELROD, III MEMORANDUM OPINION * v. Record No. 1892- 16-2 PER CURIAM JUNE 13, 2017 ANASTASIA ALEXANDER AND MICHAEL ALEXANDER

FROM THE CIRCUIT COUR T OF LUNENBURG COUNTY S. Anderson Nelson, Judge (Tessie O. Barnes Bacon; Harri s, Matthews & Cr owder, P.C., on brief), for appellant. (Anastasia Alexander; Michael Alexander, pro se , on brief).

Larry Elrod, III appeals an ord er approving the step-parent ad option of his children. Mr. Elrod argues that the trial c ourt “erred in terminating [hi s] parental rights” b ecause (1) “[t]he court did not make a finding that the continuing relationship b etween the father an d the child would be detrimental” and (2) Mr. Elr od’s “consent to termination of parental rights was not withheld contrary to the child’s best interests.” Upon reviewing the re cord and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we su mmarily affirm the decision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - BACKGROUND 1
Anastasia Alexander and Mr. Elr od are the biological parents t o two children, born in February 2012 and November 2013. Mrs. Alexander and Mr. Elrod were not married. Mr. Elrod left Mrs. Alexander and the olde r child when the older child wa s approximately one and a half years old. He was not present fo r the birth of the younger chi ld, but Michael Alexander was present. Mr. Elrod did not have any further contact with the children, e xcept for a twenty-minute meeting in a parking lot in O hio in February 2014. Mrs. Alexan der arranged the visit. Mr. Elrod held the older child, while the younger child remained in the c ar. In March 2014, Mr. Elrod was arre sted in Ohio for three felony charges, including illegal manufacturing of drugs, illegal assembly or possession of chemi cals for manufacturing of drugs committed in the vicinity of a j uvenile, and endangering childr en. Mr. Elrod was sentenced to prison in September 2014 and has an expected release date of Se ptember 14, 2018. 2 Prior to his incarceration, Mr. E lrod’s employer withheld fund s for child support. After his incarceration, Mr. Elrod has supported the older child with $7.50 per month. Aside from a few items in February 2014 and some items from his mother, Mr. Elrod had not given the children any gifts or presents . He testified, however, that he sent some letters to the children and had tried to call, but Mrs. Ale xander told him to stop contacti ng them. In November 2014, Mr. Alexander ma rried Mrs. Alexander. Mr. A lexander has acted as the children’s father, and the c hildren consider him their fath er. Mrs. Alexander consents to Mr. Alexander adopti ng the children.

1 Pursuant to Rule 5A:8(c), the r ecord contains a written statem ent of facts, but no transcript.

2 Mr. Elrod said that he could possi bly have an early release da te in 2017.- 3 - On March 3, 2016, Mr. and Mrs. Alexa nder filed a petition for a step-parent adoption. Mr. Elrod did not consent to the adoption. The parties appeare d before the circuit court on August 9, 2016. 3 After hearing the evidence and argument, the trial court foun d that Mr. Elrod’s consent was being withheld contra ry to the best interests of th e children. The tri al court held that it was in the children’s best interests to be adopted by Mr. Al exander. By order entered October 25, 2016, the trial court terminated Mr. Elrod’s parental right s and finalized the adoption of the children. This appeal followed.
ANALYSIS “Where, as here, the c ourt hears the evidence ore tenus , its finding is entitl ed to great weight and will not be disturbe d on appeal unless pl ainly wrong or wit hout evidence to support it.” Martin v. Pittsylvania Cty. Dep’t of S oc. Servs., 3 Va. App. 15, 20, 3 48 S.E.2d 13, 16 ( 1986) (citations omitted). Assignment of error #1 Mr. Elrod argues that the trial court erred by terminating his parental rights b ecause the trial court failed to make a finding t hat a continuing relationship b etween Mr. Elrod and the children would be detrimental to the chil dren. Mr. Elrod raises this ar gument for the first time on appeal. Therefore, this Court will not consider it. See Ohree v. Commo nwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (We “will not consider an argument o n appeal which was not presented to the trial court.”); Rule 5A:18.

3 Father appeared via vide o conferencing, but his guardian ad litem was present in the courtroom.- 4 - Assignment of error #2 Mr. Elrod argues that the tri al court erred by finding that hi s consent was withheld contrary to the best interes ts of the children. Mr. Elrod cont ends the evidence did not support the factors in Code § 63.2-1205. “We have consistently held tha t to grant a petition for adopti on over a birth parent’s objection, there must be more than a mere finding that the adop tion would promote the child’s best interests.” Copeland v. Todd, 28 2 Va. 183, 197, 715 S.E.2d 11, 19 (2011) (citing Malpass v. Morgan, 213 Va. 393, 398-99, 192 S.E.2d 794, 798-99 (1972)). “ Virginia’s statu tory scheme for adoption, including Code §§ 63.2 -1205 and -1208, defines the be st interests of the child in terms that require more expansive anal ysis than when the contest is b etween two biological parents.” Id. at 199, 715 S.E.2d at 20. Code § 63.2-1205 states: In determining whether the va lid consent of any person whose consent is required is withhel d contrary to the best interests of the child, . . . the circuit court . . . s hall consider whether gra nting the petition pending before it would be in the best interest of the child. The circuit court . . . shall consid er all relevant factors, in cluding the birth parent(s)’ efforts t o obtain or maintain legal and ph ysical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether t he birth parent(s)’ efforts to asse rt parental rights were thwarte d by other people; the birth parent( s)’ ability to care for the chil d; the age of the child; the quality of any previous relationship betw een the birth parent(s) and the child and between the birth parent( s) and any other minor children; the duration and suitability of the c hild’s present custodial environmen t; and the effect of a change of physical custody on the child. Mr. and Mrs. Alexander presented evidence regarding the factor s in Code § 63.2-1205. Mr. Elrod had not filed any petitions for custody or visitation of the children. Since he was incarcerated, Mr. Elrod was unable to assume custody and take c are of the children. Mr. Elrod argued that Mrs. Alexander thwar ted his efforts to see the chil dren; however, the evidence proved- 5 - that she was the one who arranged the visitation in February 20 14. Mr. Elrod has had no relationship with the younger child and a very limited relation ship with the older child. The evidence proved that he left Mrs. Alexander and the older child when the child was one and a half years old. He last saw the ch ild in February 2014. Meanwhile, the evidence proved that Mr. Alexander was present at the birth of the younger child. M r. Alexander has acted as the children’s father, and they consider him th eir father. Based o n all of the evidence, the trial court did not err in finding that the adop tion of the child ren by Mr. Ale xander was in their best interests and father was withholding consent contrary to the children’s best interests.
CONCLUSION For the foregoing reasons, the trial court’s ruling is summaril y affirmed. Rule 5A:27. Affirmed.