                                COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Powell and Senior Judge Clements


DAVID PAUL JONES
                                                                   MEMORANDUM OPINION *
v.      Record No. 1418-09-3                                           PER CURIAM
                                                                     DECEMBER 15, 2009
WILLIAM C. BENNETT AND
 ANDREA BENNETT


                   FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                 Charles J. Strauss, Judge

                  (Gregory T. Casker, on brief), for appellant.

                  (William C. Bennett, Jr.; Andrea B. Bennett, pro se, on brief).


        David Paul Jones (father) appeals the trial court’s ruling to grant the petition for adoption

filed by William C. Bennett and Andrea Bennett (the grandparents). Father argues that (1) the trial

court judge erred by failing to recuse himself; (2) Code § 63.2-1242.3 does not eliminate the

requirement for parental consent in adoption proceedings; (3) the trial court erred in finding that

father demonstrated a lack of desire to be involved in his son’s life; (4) the trial court erred in

finding that father’s desire for his son to keep his name was not a valid reason to withhold consent

for adoption; (5) the trial court erred in granting the adoption where there was no evidence that the

ongoing relationship would be detrimental to the child’s well-being; (6) the trial court erred in

considering the financial status of the grandparents in granting the adoption petition; (7) the trial

court erred by not allowing father sufficient opportunity to present his rebuttal testimony; and

(8) the trial court erred in finding that the best interests of the child would be served by granting the

adoption petition. Upon reviewing the record and briefs of the parties, we conclude that this

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. See

Rule 5A:27.

                                           BACKGROUND

        The child was born on April 27, 2001. Father and the child’s mother were never married.

On April 22, 2002, the Pittsylvania County Department of Social Services (the Department) became

involved with the family because of the parents’ drug use. On June 27, 2002, the Pittsylvania

County Juvenile and Domestic Relations District Court (the JDR court) entered an emergency

removal order, and gave physical custody of the child to the grandparents. Legal custody was

transferred to the grandparents on September 9, 2002. Father visited sporadically with the child

because he lacked transportation.

        On January 26, 2006, the JDR court awarded father supervised visitation. Father visited

with the child only three times before his incarceration on April 10, 2006.1 His anticipated release

date is June 6, 2018. 2

        On November 20, 2008, the grandparents filed a petition for adoption. The mother

consented to the adoption, but father did not. On April 23, 2009, the trial court held a hearing and

granted the grandparents’ petition for adoption. Father timely noted his appeal.

                                              ANALYSIS

                                          Issue 1 – Rule 5A:8

        Father argues that the trial judge erred in failing to recuse himself. However, father did not

file a transcript or statement of facts for the hearing on father’s motion to recuse.




        1
         Father admitted that he has been convicted of approximately thirty bad check charges
and attempted bank robbery.
        2
            The child will be seventeen years old when father is released from prison.
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       An appellant has the responsibility to provide a complete record to the appellate court.

Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc). We conclude

that a transcript or written statement of facts is indispensable to a determination of the question

presented on appeal. See Anderson v. Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75,

76-77 (1992); Turner v. Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986).

Therefore, we are unable to address this issue.

                                    Issues 2 and 3 – Rule 5A:20

       Father argues that Code § 63.2-1242.3 does not eliminate the requirement for parental

consent in adoption proceedings. Father also contends the trial court erred in finding that he

lacked a desire to be involved in the child’s life to the extent that adoption was justified without

his consent.

       Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he principles of law,

the argument, and the authorities relating to each question presented . . . .” Father did not

comply with Rule 5A:20(e) because his opening brief does not contain any principles of law or

citation to legal authorities to fully develop his arguments.

       Father has the burden of showing that reversible error was committed. See Lutes v.

Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of

error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415

S.E.2d 237, 239 (1992). Furthermore this Court “will not search the record for errors in order to

interpret the appellant’s contention and correct deficiencies in a brief.” Id. Nor is it this Court’s

“function to comb through the record . . . in order to ferret-out for ourselves the validity of

[appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988)

(en banc).




                                                  -3-
        We find that father’s failure to comply with Rule 5A:20(e) is significant, so we will not

consider questions presented 2 and 3. See Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d

857, 866 (2008) (“If the parties believed that the circuit court erred, it was their duty to present

that error to us with legal authority to support their contention.”); Parks v. Parks, 52 Va. App.

663, 664, 666 S.E.2d 547, 548 (2008).

                                    Issues 4, 6, and 7 - Rule 5A:18

        Father contends the trial court erred in finding father’s desire for his child to keep his family

name was not a valid reason to withhold consent for adoption and in considering the financial status

of the grandparents in granting the adoption petition. Father also argues that the trial court erred by

not allowing him ample opportunity to give rebuttal testimony.

        Father did not present these arguments to the trial court.

        We “will not consider an argument on appeal which was not presented to the trial court.”

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The purpose of

Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its

attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). There was

no miscarriage of justice in this case, and the ends of justice exception does not apply.

        Accordingly, we will not consider father’s questions presented 4, 6, and 7.

                           Issue 5 – Detrimental to the child’s well-being

        Father argues that the trial court erred in granting the adoption where there was no

evidence that the on-going relationship between him and the child would be detrimental to the

child’s well-being.

                Previously under Virginia law, Code § 63.2-1205, and its
                predecessors, required that the court apply the detriment-to-the
                child standard in an adoption proceeding where a birth parent’s
                consent to the adoption was being withheld . . . . See Gooch v.
                Harris, 52 Va. App. 157, 160-61, 662 S.E.2d 95, 96-97 (2008);
                Hickman v. Futty, 25 Va. App. 420, 426, 489 S.E.2d 232, 235
                                                  -4-
               (1997). Even that requirement, however, is no longer applicable,
               with the amendment of Code § 63.2-1205 in 2006. Gooch, 52
               Va. App. at 161, 662 S.E.2d at 97.

T.S.G. v. B.A.S., 52 Va. App. 583, 597, 665 S.E.2d 854, 861 (2008).

       Therefore, the trial court did not err when it did not consider whether continuation of

father’s relationship would be detrimental to the child.

                                 Issue 8 – Best interests of the child

       Father argues that the trial court erred in finding that the best interests of the child would be

served by granting the adoption petition.

       “When addressing matters concerning a child . . . the paramount consideration of a trial

court is the child’s best interests.” Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App.

123, 128, 409 S.E.2d 460, 463 (1991).

       “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great

weight and will not be disturbed on appeal unless plainly wrong or without evidence to support

it.” Martin v. Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16

(1986) (citations omitted).

               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 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.

Code § 63.2-1205.


                                                 -5-
        Here, father had little involvement in the child’s life. The grandparents have had custody of

the child since the child was one year old. Father visited sporadically when he was not incarcerated.

In 2006, he was awarded supervised visitation, but he missed approximately ten visits before his

most recent incarceration. Since father’s incarceration, his only contact with the child has been

monthly phone calls, some letters, and three visitations in the prison. As the trial court noted, father

“has never been a father to this child and has never been able to be a father to this child.”

        “‘[P]ast actions and relationships over a meaningful period serve as good indicators of

what the future may be expected to hold.’” Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d

188, 194 (1990) (quoting Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987)).

        Father has made no efforts to obtain custody of the child or to assert his parental rights over

the child. He is currently unable to assume custody of the child due to his incarceration, and his

release date is not until the child is seventeen years old.

        “It is clearly not in the best interests of a child to spend a lengthy period of time waiting

to find out when, or even if, a parent will be capable of resuming his responsibilities.” Kaywood

v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

        The parties agreed that the child was doing well in the grandparents’ care. The trial court

did not err in finding that the adoption was in the child’s best interests.

                                            CONCLUSION

        For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                                Affirmed.




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