COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

RODNEY R. WINFIELD 

 OPINION BY 

v. Record No. 2408-96-2 JUDGE MARVIN F. COLE 

 NOVEMBER 4, 1997 

HENRY O. URQUHART and 

 BARBARA T. URQUHART 

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY 

Thomas V. Warren, Judge 

 John B. Chappell for appellant. 

 Lawrence D. Diehl for appellees. 

 Amicus Curiae: Robert Winfield and Lois 

Winfield; (Paul C. Bland; Beverly M. Murray, 

on brief), for appellant. 

 Appellant contends that the trial judge erred in finding 

that he withheld consent to adoption against the best interests 

of his minor children and erred in finding that adoption was in 

the best interests of the children. For the reasons that follow, 

we affirm the trial judge. 

 "The trial [judge]'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." 

Frye v. Spotte, 4 Va. App. 530, 537, 359 S.E.2d 315, 319-20 

(1987). See also Lyle v. Eskridge, 14 Va. App. 874, 876, 419 

S.E.2d 863, 864 (1992) (adoption determination). On appeal, we 

view the evidence in the light most favorable to the party 

prevailing below, giving it all reasonable inferences fairly 

deducible therefrom. See Farley v. Farley, 9 Va. App. 326, 328, 
 2 

387 S.E.2d 794, 795 (1990). 

 I. 

 Appellant, Rodney R. Winfield, was convicted of the 

July 2, 1990 first degree murder of Ernestine Tucker Hardy, the 

biological mother of BST (dob 7-5-86) and BRT (dob 2-24-90), who 

are the subjects of this proceeding. Appellant was also 

convicted of malicious wounding and using a firearm during the 

commission of malicious wounding, both of which occurred at the 

same time as the murder. As a result, appellant received a 

twenty-seven year prison sentence for which he is currently 

incarcerated. Appellant is the natural father of BST and BRT. 

Although appellant is currently eligible for parole, prior to the 

June 18, 1996 hearing, parole had twice been denied. 

 Following the natural mother's murder, BST and BRT were 

placed in the custody of the appellees, Henry O. and Barbara T. 

Urquhart, where they have remained continuously. Barbara was the 

natural mother's sister. On May 15, 1992, the Urquharts were 

awarded legal custody of the minor children by court order. 

 On October 24, 1994, the Urquharts filed a petition for 

adoption. Samuel Hardy, who was married to the children's 

natural mother and was their stepfather and legal guardian, 

consented to the adoption on March 28, 1995. Appellant withheld 

consent, and, due to his incarceration, was appointed a guardian 

ad litem to represent his interests at a June 18, 1996 hearing on 

the Urquharts' petition for adoption. 
 3 

 Pursuant to Code § 63.1-223, the trial judge ordered a 

preliminary investigation by the local social service agency. In 

its March 17, 1995 report, the agency found the Urquharts 

suitable adoptive parents and recommended that they be allowed to 

adopt the minor children. The Urquharts have a longstanding 

history of gainful employment with the same employers, for 

twenty-one and sixteen years, respectively. They live in a 

three-bedroom, well-maintained home, are actively affiliated with 

a local church, have provided financial support and medical care 

to the children, and have received favorable responses from 

references contacted by the agency. 

 At the June 18, 1996 ore tenus hearing, John P. Dwyer, a 

licensed clinical psychologist, provided expert testimony 

regarding the results of psychological evaluations of the minor 

children. Dwyer opined that the children were "functioning very 

well" under the Urquharts' care and custody. The children 

"describe [the Urquharts] very warmly." Dwyer described the 

Urquharts as the children's "psychological parent[s]," and, 

specifically, Mr. Urquhart as their psychological or emotional 

father. According to Dwyer, "their mother is dead, their father 

is in prison, so they have the need for parents and the Urquharts 

appear to me to have stepped in very well given the 

circumstances." 

 In addition, Dwyer testified that the children "visit the 

Winfields [the paternal grandparents], and they visit their 
 4 

father in prison . . . [and] the children have said that they 

like that." When asked to comment on the effect of an adoption, 

Dwyer opined that "if the children not being adopted places them 

in more vulnerability for the situation to change from what it is 

now, that would cause some difficulty." Dwyer stated: 

 If there is a question of who [BST, the older 

child,] might live with and who has the power 

to make those decisions, that would cause her 

-- it would bring up all -- When her mother 

died and her father went to prison, her life 

changed dramatically at a pretty important 

time developmentally. If you say well, it 

can go this way, it could go that way, not 

only is her future sort of in jeopardy but 

her present is too, because it is going to 

cause her more anxiety, more difficulty 

because, again, she has gotten comfortable 

and confident in her situation. 

 Appellant testified that, barring his early release on 

parole, his mandatory release date is in the year 2003. This 

date, however, is subject to appellant's good behavior while in 

prison. Based on the birth years of the minor children, they 

will be seventeen and thirteen, respectively, if appellant is 

released in 2003. 

 The children's guardian ad litem recommended adoption and 

represented that "in the best interest of the girls, that they're 

entitled to legal stability, they're entitled to have legal 

parents." Because visitation with appellant and the Winfields 

appeared positive, the guardian recommended that the trial court 

fashion an order requiring continued visitation. 

 After hearing evidence, the trial judge ruled that appellant 
 5 

"unreasonably withheld" consent to adoption "to the detriment of 

the children," and he granted the Urquharts' petition for 

adoption. In the final order, the trial judge ordered that 

regular visitation be allowed for appellant and appellant's 

parents, Robert and Lois Winfield, the minor children's 

grandparents. 

 II. 

 "No petition for adoption shall be granted, except as 

hereinafter provided in this section, unless written consent to 

the proposed adoption is filed with the petition. Such consent 

shall be signed and acknowledged before an officer authorized by 

law to take acknowledgments." Code § 63.1-225(A). 

 "Consent shall be executed . . . [b]y the parents or 

surviving parent of a child born to parents who were not married 

to each other at the time of the child's conception or birth." 

Code § 63.1-225(D)(2). 

 If after consideration of the evidence, the 

court finds that the valid consent of any 

person or agency whose consent is hereinabove 

required is withheld contrary to the best 

interests of the child as set forth in 

 § 63.1-225.1, or is unobtainable, the court 

may grant the petition without such consent 

. . . [t]wenty-one days after personal 

service of notice of petition on the party or 

parties whose consent is required by this 

section . . . . 

Code § 63.1-225(F). 

 In determining whether the valid consent of 

any person whose consent is required is 

withheld contrary to the best interests of 

the child, or is unobtainable, the court 

shall consider whether the failure to grant 
 6 

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 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. 

Code § 63.1-225.1. 

 In Hickman v. Futty, 25 Va. App. 420, 426-31, 489 S.E.2d 

232, 234-37 (1997), we analyzed prior case law as it applies to 

the legislature's recently enacted statutory factors. 

 Th[e] factors [in Code § 63.1-225.1] 

encompass both aspects of the standard 

developed in the prior case law: a court 

must consider the relationship between the 

child and the prospective adoptive parents as 

well as the relationship between the child 

and the non-consenting parent. A finding 

with respect to only one of these 

relationships is insufficient. Under Code 

§ 63.1-225.1, as under the prior case law, 

not only must the prospective adoptive 

placement serve the child's best interests, 

but the continued relationship with the 

non-consenting parent must prove to be 

detrimental. 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. 

Id. at 431, 489 S.E.2d at 237. 
 7 

 [T]he factors enumerated in Code § 63.1-225.1 

compel the court to consider the child's best 

interests vis-a-vis both the prospective 

adoptive parents and the parent whose consent 

to the adoption is being withheld. 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. 

 In Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971), the 

Supreme Court affirmed the adoption of a child by the child's 

maternal aunt and uncle, over the objection of the natural 

father. Although the father had killed the child's mother, he 

was found not guilty by reason of insanity. Twenty-one months 

after the murder and seven months after his trial, the father was 

deemed mentally competent and no longer mentally ill. See id. at 

454, 184 S.E.2d at 791. Following his release, the father became 

gainfully employed, bought a home, remarried, and had another 

child, after which he contested the adoption by the maternal aunt 

and uncle and petitioned for custody of his first child. See id.

at 456, 184 S.E.2d at 792. The Supreme Court held that the trial 

judge "was warranted in holding that" the natural father's 

consent to adoption "was being withheld contrary to [the child's] 

best interests and in granting the adoption without such 

consent." Id. at 459, 184 S.E.2d at 794. The Court explained: 

 From . . . the . . . evidence before the 

court, it is clear that the one thing for 
 8 

which the welfare of [the child] cries out is 

permanent stability in proper surroundings. 

It is problematical that [the child] could 

get that stability in [the natural father's] 

home. She can get it in the [adoptive 

parents'] home. 

 To deny the adoption by the [child's 

maternal aunt and uncle] now, against the 

possibility that [the father] might at some 

unknown time in the future be able to prove 

himself entitled to a change of custody, 

would be to deny [the child] contrary to her 

best interests, the security and stability 

she so desperately needs. 

Id. at 459, 184 S.E.2d at 793-94. 

 [T]o say that a certain action is contrary to 

the best interests of a child means that it 

is action opposed to [the child's] interests. 

 When consent to adoption is withheld 

contrary to a child's best interests, it 

means that the person so withholding is 

"obstinately self-willed in refusing to 

concur" and that he is acting prejudicially 

to the child's interests. 

Malpass v. Morgan, 213 Va. 393, 398-99, 192 S.E.2d 794, 798 

(1972) (citation omitted) (reversing grant of adoption to natural 

mother and stepfather over natural father's objection; trial 

court found that homes of both natural parents were morally 

suitable and that non-consenting natural father was not 

unfit)."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, 
 9 

make an informed and rational judgment and determine that the 

continued relationship between a child and a 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). 
 10 

 III. 

 Appellant contends that the evidence was insufficient to 

establish that the children's continued relationship with him was 

detrimental. Under the facts of this case, we find that the 

evidence supports the trial judge's decision that appellant 

unreasonably withheld consent to the detriment of the children. 

 When weighing the evidence, the fact finder is not required 

to accept entirely either party's account of the facts. See

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 

(1986). The fact finder may reject that which it finds 

implausible, yet accept other parts which it finds to be 

believable. See Durham v. Commonwealth, 214 Va. 166, 169, 198 

S.E.2d 603, 606 (1973). Moreover, even though appellant's 

testimony regarding the quality of care he provided to the 

children before murdering their mother "was uncontradicted and 

unimpeached, the trier of fact did not have to accept this 

version of the facts simply because it was the only version 

supplied." Harrell v. Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 

680, 684 (1990) (citing Crumble v. Commonwealth, 2 Va. App. 231, 

236, 343 S.E.2d 359, 362 (1986)). 

 Initially, we review the factors listed in Code 

§ 63.1-225.1 that the court should consider "[i]n determining 

whether the failure to grant the petition would be detrimental to 

the child." Those factors include: (1) the birth parent's 

efforts to maintain legal and physical custody; (2) whether the 
 11 

birth parent's efforts to assert parental rights were thwarted by 

other people; (3) the birth parent's ability to care for the 

children; (4) the ages of the children; (5) the quality of the 

prior relationship between the children and the birth parent; (6) 

the duration and suitability of the children's present custodial 

environment; and (7) the effect of a change of physical custody 

on the children. See id.

 By murdering the natural mother and becoming incarcerated, 

appellant prevented himself from maintaining or gaining custody. 

As an incarcerated prisoner, appellant had, and still has, no 

ability to care for the children. The children, who were very 

young at the time of the murder, are still too young to 

appreciate their situation and assist in making a reasoned 

choice. Due to the young age of the children when their mother 

was murdered, the prior relationship between appellant and BST 

was of negligible quality and appellant's relationship with BRT 

was practically non-existent. At the time of the hearing, the 

children had been in the custody of the Urquharts for six years. 

 The Urquharts have provided a suitable and nurturing environment 

for the children. Dwyer's expert testimony revealed that 

"difficulty" would arise should a failure to allow the adoption 

make the children more vulnerable to a change in the future. The 

older child, BST, "has gotten comfortable and confident in her 

situation," and she could face anxiety and difficulty should a 

future change affect that comfort. Accordingly, application of 
 12 

the Code § 63.1-225.1 factors to appellant's situation favors the 

Urquharts, the adoptive parents, and demonstrates that a failure 

to grant the petition would be detrimental to the children. 

 However, because factors listed in Code § 63.1-225.1 are not 

exclusive, we look to other factors unique to this case. Both 

the Supreme Court and this Court have expressed the view that, 

before requiring a showing that a relationship with the 

non-consenting parent would be detrimental, there must be "no 

question of the fitness of the non-consenting parent and [a 

showing that the non-consenting parent] has not by conduct or 

previous legal action lost his rights to the child." Malpass, 

213 Va. at 399, 192 S.E.2d at 799. See also Jolliff v. Crabtree, 

224 Va. 654, 657, 299 S.E.2d 358, 360 (1983) (reversed trial 

court's grant of adoption, noting that natural father was not 

solely responsible for lack of contact and support where mother 

unilaterally took child away and concealed his whereabouts); Ward 

v. Faw, 219 Va. 1120, 1124-25, 253 S.E.2d 658, 661 (1979) (noting 

absence of allegation of unfitness or showing that by conduct or 

legal action the father had lost his parental rights); Lyle, 14 

Va. App. at 876, 419 S.E.2d at 865 (absent a showing of 

unfitness, movant must show continued parent-child affiliation 

detrimental to child's welfare). 

 [A] determination under Code § 63.1-225(D) 

that a natural parent is withholding consent 

to an adoption contrary to the best interests 
 13 

of a child involves the careful application 

of a series of guiding principles rather than 

a single one. The paramount concern is the 

welfare of the child, but the child's welfare 

must be balanced against the rights of the 

non-consenting natural parent. To reach that 

balance the court must first determine that 

the proposed adoption will promote the best 

interests of the child; that is, that the 

adoption will advance or contribute to the 

child's interests. Thereafter, the more 

difficult determination, which involves the 

permanent severance of the parent-child 

relationship, focuses on whether consent is 

being withheld contrary to the best interests 

of the child. To make that determination, 

where there is no showing that the 

non-consenting parent is unfit or by his 

conduct or previous legal action has lost his 

rights to the child, the party seeking 

adoption must produce clear and convincing 

evidence that a continuance of the 

parent-child relationship would be 

detrimental to the child's welfare. 

Linkous, 10 Va. App. at 56-57, 390 S.E.2d at 194 (citations 
 14 

omitted) (emphasis added). 

 Conversely, it follows that, where there is a showing of 

unfitness or conduct by the non-consenting parent causing him or 

her to lose his or her rights, the need to prove that a 

continuance of the parent-child relationship would be detrimental 

to the child is diminished, if not unnecessary. 

 In Linkous, after the divorce of the child's parents, the 

natural father was convicted of armed robbery and malicious 

wounding.1

 We stated that the natural father's "criminal conduct 

was and should have been an important and significant factor in 

the trial court's determination." Id. at 58, 390 S.E.2d at 195 

(noting that natural father was "marginal parental figure" before 

incarceration). In upholding the trial judge's decision to allow 

the stepfather to adopt the minor child despite non-consent by 

the natural father, we explained: 

 [The natural father's] repeated criminal 

conduct necessarily limited a reasonable 

expectation of visitation with his children 

during his incarceration regardless of the 

conduct of the [natural mother] in not 

supporting even limited visitation. While we 

do not decide whether prolonged incarceration 

resulting from convictions of serious 

felonies, rather than brief incarceration 

resulting from convictions of minor crimes 

. . . is sufficient in itself to support a 

finding that a continuance of the 

parent-child relationship would be 

detrimental to the children's welfare, the 

particular facts of this case, coupled with 

those convictions, warrant such a conclusion. 

 

 1The crimes were not directed at the natural father's wife 

or children, and there was no evidence of any physical abuse 

against them. 
 15 

Id.

 In Malpass, despite reversing the trial court's grant of 

adoption, the Supreme Court acknowledged that it did "not intend 

to intimate that a child must be in a desperate situation before 

adoption may be ordered over the objection of a natural parent." 

213 Va. at 399, 192 S.E.2d at 799 (also noting that it was 

unnecessary to show abandonment or unfitness before ordering such 

adoption). 

 Therefore, in addition to consideration of the factors set 

forth in Code § 63.1-225.1, we look to appellant's conduct and 

fitness. Appellant proved to be unfit when he murdered the 

natural mother and maliciously wounded the mother's husband and 

the children's stepfather. Appellant, who was not married to the 

natural mother, armed himself with and used different weapons 

against each victim; he stabbed the mother to death and shot her 

husband. In addition to demonstrating his unfitness, appellant, 

through his conduct, permanently deprived the children of the 

opportunity to receive the love, care and attention of their 

mother and foreclosed his ability, at least for a lengthy period 

of time, to perform any duties of a father or of forming any 

beneficial parental relationship during the children's formative 

years. 

 We are aware of no Virginia case in which a natural parent 

murdered the other natural parent and then succeeded in thwarting 

adoption by suitable parents. Faced with this issue, many other 
 16 

jurisdictions have upheld adoptions by finding the surviving 

parent unfit or as having abandoned the children. See, e.g., 

R.F. v. S.S., 928 P.2d 1194, 1197 (Alaska 1996) (holding that 

"[l]eaving a child in limbo during his formative years based 

upon" speculation of the murdering father's future was against 

the child's best interests); Williams v. Townsend, 629 N.E.2d 

252, 254 (Ind. Ct. App. 1994) (finding that father's murder of 

mother "condemned" child to "childhood spent without the daily 

care and nurturing of either of her natural parents"; holding 

that "commission of intentional act by a parent, which not only 

results in that parent's incarceration for the duration of the 

child's minority but which also deprives the child completely of 

the love, affection and care of the other parent, is sufficient 

to constitute abandonment of the child, negating the need for 

parental consent to adoption" under statute); In re M.F., 660 

So.2d 952, 954 (La. Ct. App. 1995) (father's deliberate act of 

killing mother evidenced careless disregard for children's 

well-being and unfitness); In the interest of P.W.K., 815 S.W.2d 

95, 96 (Mo. Ct. App. 1991) (mother's murder of father and 

subsequent incarceration was tantamount to abandonment); 

Adoption of Kurth, 557 P.2d 349 (Wash. Ct. App. 1976) (holding 

that consent by father who killed mother was not necessary to 

adoption). 

 Moreover, appellant was never married to the natural mother, 

and the record shows that appellant left the mother and children 
 17 

whenever there were conflicts and stayed with his parents. The 

mother and her husband, the children's stepfather, were together 

at the time of the murder. Although appellant has been meeting 

with the children in prison for an hour or two every third week, 

the Urquharts have been the children's emotionally, financially 

and morally responsible parents. The record shows that the 

children "didn't really know [appellant] very well" before the 

murder and that they "developed a relationship over time visiting 

[appellant] in prison." 

 This evidence established that appellant had no fatherly 

relationship with the children prior to his incarceration. 

Although appellant's testimony regarding the quality of care he 

provided to the children before murdering their mother "was 

uncontradicted and unimpeached, the trier of fact did not have to 

accept this version of the facts simply because it was the only 

version supplied." Harrell, 11 Va. App. at 9, 396 S.E.2d at 684 

(citation omitted). In addition, appellant's act of murder 

precluded the natural mother from rebutting appellant's 

self-serving version of his prior relationship with the children. 

 To withhold consent because of appellant's occasional and brief 

visits with the children in prison would deny the children an 

opportunity to gain stability. The uncertainty surrounding 

appellant's release and the speculative possibility that he will 

assume a positive parental role further support the trial judge's 

decision. Finally, we note that appellant and his parents were 
 18 

granted visitation privileges in the final order.2

 In the final order, the trial judge explained that he 

considered all of the evidence as well as the statutory factors 

and standards in finding that appellant's consent was withheld 

"contrary to the best interests of the children." Applying the 

statutory criteria and prior case law and reviewing all the facts 

of the case, including appellant's violent acts resulting in the 

de facto abandonment and orphaning of the children during their 

formative years, we find sufficient evidence supporting the trial 

judge's finding that appellant unreasonably withheld his consent 

for adoption. By withholding his consent, appellant deprived the 

children of the stability and certainty that would result from 

being legally recognized children of the only people they have 

known as parents since the mother's murder. Accordingly, we hold 

that the trial judge did not err in finding that appellant 

withheld his consent contrary to the children's best interests 

and that adoption would be in the children's best interests. 

Therefore, the decision of the trial judge is affirmed. 

 Affirmed.

 

 2

The parties did not contest the trial judge's order 

requiring visitation, and the record suggests that such 

visitation is beneficial. In addition, the Urquharts agreed to 

the inclusion of visitation in the final order. Accordingly, we 

do not address the propriety of such an order.