                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Richmond, Virginia


SHARON MARIE CROCKETT
                                                 OPINION BY
v.   Record No. 1338-01-2                JUDGE JAMES W. BENTON, JR.
                                                MARCH 26, 2002
RONNIE McCRAY AND
 SABRINA McCRAY


          FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                       James A. Luke, Judge

          Stefan M. Calos for appellant.

          Adrienne George-Eliades (Hill, Rainey &
          Eliades, on brief), for appellees.

          No brief or argument by the child's
          guardian ad litem.


     Sharon Marie Crockett appeals from a final order of adoption

granting the petition of Ronnie and Sabrina McCray to adopt

Crockett's birth daughter.    Crockett contends the trial judge

erred by entering the adoption order because (1) the record failed

to establish that the visitation requirements of Code

§ 63.1-219.19 had been satisfied during the probationary period,

(2) the adoption resulted in the separation of the child from her

blood relatives, (3) the evidence did not rebut the presumption

favoring Crockett, the child's birth parent, (4) the judge failed

to consider all the statutory factors in finding Crockett withheld

her consent to the adoption contrary to the best interest of the
child, (5) the order did not provide for post-adoption visitation

between Crockett and the child, and (6) the trial judge refused to

appoint a court reporter and provide Crockett, an indigent person,

a free transcript.   We agree that the evidence failed to prove the

visitations were made as required by Code § 63.1-219.13, and we

remand for further proceedings.

                                I.

     The record indicates that in 2000, Ronnie and Sabrina McCray

filed a petition in juvenile and domestic relations court seeking

approval of Sharon Marie Crockett's consent to the adoption of

Crockett's child or, alternatively, a finding that Crockett's

refusal to consent was withheld contrary to the child's best

interest, and other relief.   By order of July 11, 2000, a judge of

the juvenile court found, in pertinent part, that the child was

four months old when Crockett placed the child with the McCrays in

May 1996; that three months after that placement, a judge of the

juvenile court awarded custody of the child to the McCrays; that

the child had lived with the McCrays for more than four years;

that Crockett appeared at the evidentiary hearing and refused

consent; that Crockett was withholding her consent contrary to the

best interest of the child; and that all other pertinent statutory

requirements had been met.    The judge granted the petition and

appointed the McCrays guardians of the child pending her adoption

by them.   The record contains no indication that Crockett appealed

from that order.

                                - 2 -
     On July 6, 2000, the McCrays filed a petition in the circuit

court for adoption of the child.    The petition for adoption

alleged that Crockett placed the child in the care, custody, and

control of the McCrays pursuant to former Code § 63.1-220.3, that

the juvenile court had made findings that Crockett's consent to

adoption had been withheld contrary to the child's best interest,

and that the juvenile court had transferred custody of the child

to the McCrays.    A copy of the juvenile court's order was attached

to the petition.    On July 11, 2000, the circuit court appointed a

guardian ad litem for Crockett.    By interlocutory order entered

October 25, 2000, a circuit judge granted the McCrays' petition

for adoption, "subject to the probationary period provided by

law," and granted the McCrays' petition to have the child's last

name changed from Crockett to McCray.   Crockett noted a general

objection to entry of the interlocutory order.

     Crockett filed an answer on February 6, 2001, objecting to

the adoption.   She asserted that she continued to withhold her

consent to the adoption, that the report of the child's guardian

ad litem was deficient, and that the judge should "reject, vacate,

and otherwise overrule" the juvenile court's order waiving

Crockett's consent.   After six months had passed from entry of the

interlocutory order, the trial judge held an evidentiary hearing

upon the McCrays' motion for entry of a final order of adoption

and Crockett's objection to the adoption.



                                - 3 -
     The evidence at the evidentiary hearing proved Crockett has

been in prison most of the child's life.    Crockett testified that

she was incarcerated from May 1996 to March 1999.    She was again

incarcerated in December 1999 for drug use.   Crockett testified

that she had received drug treatment in prison and that she would

be eligible for parole in June 2001.   Her mandatory release date

from prison is in 2003.

     Crockett testified that the McCrays were helping her mother

and stepfather take care of the child in 1996.   She testified that

during that time she signed a consent giving her mother and the

McCrays legal authority over the child.    Crockett testified that

the child has visited her in prison on weekends with Crockett's

mother and brother and that she developed a bond with her daughter

during the nine months when she was out of prison.    Crockett

expressed her concern that if the McCrays adopted her daughter and

moved to Alabama, she would not see her daughter because leaving

the state would be a violation of her probation.    Crockett said

she disagreed with the adoption and expressed her wish that the

child be allowed to live with a member of her family.

     Crockett's brother and his wife testified that they would

like the child to be a part of their family and to live with them

in North Carolina.   Crockett's sister-in-law testified that, until

recently, they were not aware that Crockett was interested in them

rearing the child.   She testified that she sees the child more

than three times each year but could not "remember the last time

                               - 4 -
[she saw the child]."    Crockett's brother also testified that the

child's move to Alabama was a concern because she would be away

from Crockett's family.

     The child's maternal grandmother testified that she was

willing to assist in rearing the child if Crockett's brother and

his wife "were not able or willing to" care for her.   She

acknowledged that the McCrays were her friends, were "good

providers" for the child, and never thwarted her efforts to see

the child.    She testified that she was present in August 1996 at

the juvenile court hearing when the McCrays initially gained legal

custody of the child and that the issue whether she could care for

the child was never raised at the hearing.    She also testified,

however, that she did not ask for custody of the child at the

August 1996 hearing.

     The trial judge ruled from the bench that he would grant the

petition for adoption.    He made oral findings, which included the

following:

                The father of this child is unknown.
             [The grandmother] says today and so far as
             the record shows and so far as this Court
             knows says today for the first time that she
             would like to have the child. Before that,
             she certainly, at the least, been ambivalent
             about it. [Crockett's brother and his wife]
             came forward today and say that they would
             like to have [the child]. But, until today,
             they've been content to let things be. So
             where has the interest and the work and the
             love for [the child] come from in the last
             four years? And I think the answer is
             obvious. It's come from Mr. and Mrs. McCray
             who have had custody of the child except for

                                 - 5 -
          the first . . . four months of her life.
          They began procedure to have custody and –-
          quite some years ago and procedure for this
          adoption over a year ago. . . . I realize
          that it's a presumption in the favor of
          natural parents. And I realize that the
          evidence needs to be clear and convincing
          that it's detrimental to the child to not do
          this. And I think that those things have
          been shown quite clearly.

The judge also ruled that he would not grant Crockett's request

for visitation, stating, "I want to tell you that my thought off

the top of my head is it would be inappropriate since we are

cutting legal ties with the final order.   So I'll be glad to

consider that if you want to take a look at it and reflect on

it, but I would not do it today."    On May 2, 2001, the trial

judge entered a final order of adoption.   This appeal followed.

                              II.

     Crockett objected, both during the hearing and on the final

order, contending that neither the social services reports nor

the evidence indicated that the required home visitations were

made during the probationary period.   She contends on appeal

that the visitation requirements of Code § 63.1-219.19 were not

met because "[t]here is no evidence in the record that the

[requisite] visitations occurred."    We agree.

     Code § 63.1-219.19 requires that visitations be made and a

report of those visitations be filed in the circuit court.   In

pertinent part, that statute provides as follows:

          A. . . . [A]fter the entry of an
          interlocutory order of adoption, . . . if

                              - 6 -
          the placement is a parental placement, the
          child-placing agency that submitted the home
          study . . . shall cause the child to be
          visited at least three times within a period
          of six months by an agent of such local
          board or department of social services or by
          an agent of such licensed or duly authorized
          child-placing agency. Whenever practicable,
          such visits shall be made within the six
          months period immediately following the date
          of entry of the interlocutory order;
          however, no less than ninety days shall
          elapse between the first visit and the last
          visit. The agency that placed the child,
          the child-placing agency that submitted the
          home study, the local director of social
          services or the licensed child-placing
          agency, as applicable, shall make a written
          report to the circuit court, in such form as
          the Commissioner may prescribe, of the
          findings made pursuant to such visitations.
          . . .

          B. The three supervisory visits required in
          subsection A shall be conducted in the
          presence of the child. At least one such
          visit shall be conducted in the home of the
          petitioners in the presence of the child and
          both petitioners, unless the petition was
          filed by a single parent or one of the
          petitioners is no longer residing in the
          home.

Code § 63.1-219.19(A), (B).

     The statute clearly prescribes the number of visits and the

time frame in which they shall occur.   The Supreme Court has

ruled that the visits serve an important function:

          The interlocutory order contemplated by
          [the] statute . . . is for the purpose of
          giving the Welfare Department an opportunity
          to visit the home of the adopting parents,
          to see that the child is being properly
          cared for, thereby forming some opinion as
          to the child's future should it be permitted
          to remain in the home.

                              - 7 -
Bidwell v. McSorley, 194 Va. 135, 140, 72 S.E.2d 245, 249

(1952).   Moreover, the social services report, which is premised

upon those visitations, has heightened significance because only

"after considering the report . . . , if the court is satisfied

that the best interest of the child will be served thereby,

[shall] the circuit court . . . enter the final order of

adoption."   Code § 63.1-219.20.

     Although the report was filed with the circuit court,

neither the report nor any testimony indicates the three visits

were made as required by the statute.   Without knowing whether

the visitation requirements had been satisfied, the trial judge

could not adequately assess the report.    In the absence of this

information in the record, the trial judge had no basis to

determine that the safeguards mandated by the General Assembly

were followed and that the best interest of the child was served

by entering the final order of adoption.   Because the evidence

in the record does not indicate that these requirements were

fulfilled, we hold that the judge had no basis to determine

whether the statutory mandates were satisfied.    We, therefore,

reverse the order of adoption and remand for reconsideration and

further proceedings.

                               III.

     Because several of the issues raised by Crockett will recur

on remand and reconsideration, we address them.



                               - 8 -
     First, Crockett contends the trial judge improperly found

that placement of the child with the McCrays, rather than with

Crockett's blood relatives, was in the best interest of the

child.   Because we have ruled that the trial judge's finding

concerning the placement of the child is dependent, in part,

upon the report of the home visitations, the trial judge must

also reconsider on remand whether placement with the adoptive

parents, over Crockett's relatives, is in the child's best

interest.

     Second, Crockett contends the trial judge erred in ruling

that her consent to the adoption was withheld contrary to the

child's best interest.   The record reflects, however, that the

juvenile court judge determined that Crockett withheld consent

to the adoption contrary to the best interest of the child.

That finding was made after an ore tenus hearing occurred on May

30, 2000.   The juvenile court order recites that the judge

considered the statutory factors, and it contains specific

findings of fact on several of the relevant factors.   The record

does not reflect that Crockett appealed from that ruling.

Accordingly, we hold that the trial judge could properly rely

upon that ruling in granting the adoption.

     Third, Crockett argues that the trial judge disregarded the

presumption in favor of natural parents.   The Supreme Court,

however, has previously held as follows:



                               - 9 -
          [T]he presumption in favor of parental
          custody is rebuttable by proof that the
          requirements of Code § 63.1-225 [now Code
          § 63.1-219.10] have been met as of the date
          of filing the petition for adoption. Having
          satisfied the provisions of that statute,
          the proponents of adoption are entitled to
          an interlocutory order under Code § 63.1-226
          [now Code § 63.1-219.16] if the trial court,
          after hearing the evidence of both the
          proponents and the opponents of the
          adoption, finds by a preponderance of the
          evidence that the proposed adoption would be
          in the child's best interests.

Szemler v. Clements, 214 Va. 639, 643, 202 S.E.2d 880, 884

(1974).

     The record does not reflect that Crockett appealed from the

finding in the juvenile court's order that her consent was being

withheld contrary to the best interest of the child.   When the

trial judge entered the interlocutory order, he found that "all

requirements of law have been met."    The evidence supports the

trial judge's ruling.

     Fourth, Crockett contends the adoption order was improper

because it did not provide for her visitation with the child

post-adoption.   The trial judge's decision not to grant

visitation was based on his finding that it would be improper to

grant visitation in the same order as the adoption.

     "Code § 20-124.1 provides that only a person 'with a

legitimate interest' has standing to request custody or

visitation and that '[a] party with a legitimate interest . . .

shall not include any person . . . whose parental rights have


                              - 10 -
been terminated by court order, either voluntarily or

involuntarily.'"   F.E. v. G.F.M., 35 Va. App. 648, 670-71, 547

S.E.2d 531, 542 (2001) (citation omitted).   In that ruling, we

also cited former Code § 63.1-233, which has been recodified as

Code § 63.1-219.22.   It provides, in pertinent part, as follows:

             The birth parents . . . shall, by such
          final order of adoption, be divested of all
          legal rights and obligations in respect to
          the child including the right to petition
          any court for visitation with the child.
          Any child adopted under the provisions of
          this chapter shall, from and after the entry
          of the interlocutory order or from and after
          the entry of the final order where no such
          interlocutory order is entered, be, to all
          intents and purposes, the child of the
          person or persons so adopting him.

Code § 63.1-219.22.   Thus, we hold that the trial judge did not

err in refusing Crockett's request for post-adoption visitation

with the child.

     Finally, Crockett contends the trial judge erred in denying

her requests for a free transcript.    The issue is moot because a

court reporter was engaged by the McCrays to transcribe the

proceedings at no cost to Crockett.    Moreover, Crockett

represents that "the . . . Supreme Court has indicated that

[her] guardian ad litem . . . will be reimbursed for the court

reporter's transcription."




                              - 11 -
                              IV.

     For these reasons, we reverse the order and remand for

reconsideration and a decision consistent with this opinion.

                                        Reversed and remanded.




                             - 12 -
