                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, McCullough and O’Brien
PUBLISHED


            Argued at Fredericksburg, Virginia


            JEFFERY HARVEY AND
             TERESA HARVEY
                                                                                OPINION BY
            v.     Record No. 1694-14-4                                JUDGE STEPHEN R. McCULLOUGH
                                                                              AUGUST 11, 2015
            DAVID FLOCKHART AND
             RHONALEE FLOCKHART


                               FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                                           Clifford L. Athey, Jr., Judge

                           Shelly R. James (Law Office of Shelly R. James, PLLC, on briefs),
                           for appellants.

                           Kelly C. Ashby (Law Office of Kelly C. Ashby, P.C., on brief), for
                           appellees.


                   Jeffery and Teresa Harvey, the biological grandparents of S.H. and J.H., appeal from an

            order granting a petition for adoption of these children to David and Rhonalee Flockhart. The

            Harveys contend that the circuit court erred in (1) considering a custody and visitation appeal

            from juvenile and domestic relations district court when the notice of appeal was not timely

            filed; (2) denying the Harveys’ motion for a continuance; (3) granting the adoption; (4) finding

            that the adoption served the children’s best interests; and (5) terminating the Harveys’ visitation

            rights. We find no error and affirm.

                                                     BACKGROUND

                   On January 6, 2011, the Flockharts received custody of S.H. and J.H. through a

            Shenandoah County Department of Social Services foster placement. S.H. was approximately

            one and a half years old, and J.H. was approximately six months old. After the natural parents’
rights were terminated, the Flockharts and the Harveys cross-petitioned the Shenandoah County

Circuit Court for custody. By order dated October 17, 2012, the court awarded the Flockharts

legal and physical custody of S.H. and J.H. It denied the Harveys’ petition for custody but

awarded them visitation.

       On November 14, 2012, the Flockharts filed a petition for adoption in the Frederick

County Circuit Court. The court granted that petition by final order dated February 13, 2013.

The Harveys moved to vacate that order on the ground that they had not received notice of the

adoption proceedings. The court granted their motion. The court scheduled a hearing on the

Flockharts’ petition and allowed the Harveys to intervene and participate.

       On April 7, 2014, the Frederick County Department of Social Services completed the

report of its investigation in connection with the Flockharts’ petition for adoption. On May 20,

2014, the Department filed an addendum to the report. The addendum noted that an anonymous

complaint – the anonymous complainant, it turns out, was Mrs. Harvey – to County building

officials had yielded information that the children were sleeping in a basement. This basement

lacked a door to the outside and had no window access to the exterior. In response, the

Flockharts moved the children to bedrooms on the main floor of the home. Each child began to

sleep in his or her own bed and had adequate space for clothing and other belongings. Each

room was equipped with a smoke detector. The addendum noted that the Flockharts had filed for

a permit to construct a bedroom in the basement, and the application was pending. The

addendum also mentioned the building inspector’s discovery of “improper grounding of the

[swimming-]pool motor and violations with the pool gate.” The pool gate was neither

self-closing nor self-locking. The building inspector required the Flockharts to place a lock on

the gate until this problem was resolved. According to the addendum, the Flockharts had




                                               -2-
remedied these issues. The addendum concluded, “As of May 19, 2014, there are no violations

noted in the Frederick County Health’s Department file for this residence.”

       On May 23, 2014, the Harveys requested a continuance to allow them more time to

investigate the addendum and its implications. The court denied the motion.

       At a hearing on May 27, 2014, the court heard evidence on S.H.’s and J.H.’s relationships

with the Flockharts and the Harveys, respectively, and on interaction between the Harveys and

the Flockharts. The Flockharts described their love for S.H. and J.H. Likewise, the Harveys and

their witnesses testified to the Harveys’ loving relationship with the children and to the fact that

the children enjoy spending time with their grandparents. The Flockharts, the Harveys, and other

witnesses testified to the tension, lack of trust, and even hostility between the Flockharts and the

Harveys. It became clear from the testimony presented that the Harveys do not view the

Flockharts as the children’s parents and this mindset taints the interaction between them and the

Harveys. The Flockharts explained that the visitation was having an adverse effect on the

children and on the family unit.

       The court also heard testimony concerning the Flockharts’ living arrangements. The

Flockharts reside in a 2000-square-foot ranch home with a basement. The home belongs to

Mrs. Flockhart’s parents, the Russells. Eleven people reside there: the Flockharts,

Mrs. Flockhart’s parents, her grandparents (also Russells), and five children. S.H., J.H., and the

three other children were born to the same mother. The home has three upstairs bedrooms and a

basement. The basement is not completely finished. The basement has some windows, but they

are not suitable for escape in the event of fire, and there is no door to the outside. The Flockharts

applied for a building permit to allow for basement ingress and egress. Mrs. Harvey

acknowledged that she was the one who contacted building officials about the Flockharts’ home

and building permit.

                                                -3-
       The Flockharts moved into the Russells’ home after selling their first home, which they

had outgrown. They planned to save their money to build or buy a larger home within two years.

Mrs. Flockhart’s grandparents sleep in one bedroom, the boys in a second bedroom, and the girls

in a third bedroom. The Flockharts sleep in a downstairs living area, and Mrs. Flockhart’s

parents sleep in a separate living area, also downstairs.

       Mrs. Flockhart explained that, when the pool is not operational, the ground wire is not

attached to the pump, and the electricity is turned off. When the pool is operational, the ground

wire is reattached to the pump.

       Dawn Welch, a licensed clinical social worker, testified at the hearing. The Flockharts

brought S.H. and J.H. to her based on “some behaviors that were occurring within their home.”

Welch observed the two children about seventeen times. She testified that the two are “very

bonded” and love the Flockharts “very much.” According to Welch, S.H. and J.H. do not want

to go to visitation with the Harveys, and they experience confusion “about what they’re told [at

the Harveys’] versus when they’re home.” Welch said that S.H., J.H., and their siblings “are

very confused. They don’t understand why [S.H. and J.H.] go. And it has a direct impact on

them with their relationship with their parents and their siblings.” She expressed concern that the

visitation triggered “[l]ots of anxiety” in S.H. and J.H. and, for one of them, some “regressive

behaviors.” She did not have any contact with the Harveys and, therefore, did not observe the

Harveys interact with S.H. and J.H.

       Following the hearing, the court prepared a memorandum containing thorough findings

of fact and conclusions of law. Among other things, the circuit court found that “[t]he parties are

unable to cooperate in and resolve disputes regarding the children, in part, because the Harveys

refuse to recognize the Flockharts as the parents of the children . . . .” The court granted the

Flockharts’ petition for adoption by order entered August 13, 2014.

                                                -4-
                                             ANALYSIS

               I. THE CIRCUIT COURT HAD JURISDICTION OVER THE ADOPTION PETITION;
                  GRANTING THAT PETITION DIVESTED THE GRANDPARENTS OF ANY RIGHT TO
                  VISITATION.

       The Harveys’ first assignment of error is that the circuit court lacked jurisdiction to

address the Harveys’ visitation. They contend that the Flockharts did not timely appeal the

juvenile court’s order awarding the Harveys visitation. The Frederick County Juvenile and

Domestic Relations District Court entered an order on March 18, 2014, affirming the 2012

custody and visitation order. The March 18, 2014 order was not appealed until April 29, 2014.

       This jurisdictional issue is one of law and, therefore, we review the circuit court’s

conclusion de novo. See Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102

(2001). Under Code § 16.1-296(A), “an appeal may be taken to the circuit court within 10 days

from the entry of a final judgment, order or conviction . . . .” It is well established that an

untimely appeal from juvenile court to circuit court results in dismissal of the appeal. See

Congdon v. Commonwealth, 57 Va. App. 692, 695-96, 705 S.E.2d 526, 528 (2011).

       That principle does not apply here. By statute, a “final order of adoption” divests

               any person whose interest in the child derives from or though the
               birth parent . . . , including but not limited to grandparents, . . . of
               all legal rights and obligations in respect to the child including the
               right to petition any court for visitation with the child.

Code § 63.2-1215. This language is plain and unambiguous.

       The Harveys are the biological grandparents of S.H. and J.H. The Flockharts adopted

S.H. and J.H. Entry of the final order of adoption divested the Harveys of “all legal rights and

obligations in respect to the child[ren],” which includes visitation. Id. The final order of

adoption superseded any preexisting visitation order entered by the juvenile court. The

Flockharts’ petition for adoption necessarily implied a question of the Harveys’ ongoing

visitation respecting S.H. and J.H., and there is no question of the court’s jurisdiction to entertain
                                                 -5-
the petition. See Code §§ 16.1-244, 63.2-1201. Therefore, the untimely appeal of the juvenile

court’s order is immaterial here.

       We acknowledge the holding in Thrift v. Baldwin, 23 Va. App. 18, 20, 473 S.E.2d 715,

716 (1996), where we held that biological grandparents constituted “persons of interest” who

could petition the court for visitation. Even though an adoption order “extinguished [their] legal

grandparental . . . relationship,” their legitimate interest owed to the continuing “blood

relationship.” Id. We decided Thrift in 1996. In 1997, the General Assembly amended Code

§ 16.1-241(A), which specifies the jurisdiction of the juvenile and domestic relations district

courts, as follows:

                       The authority of the juvenile court to adjudicate matters
               involving the custody, visitation, support, control or disposition of
               a child shall not be limited to the consideration of petitions filed by
               a mother, father or legal guardian but shall include petitions filed at
               any time by any party with a legitimate interest therein. A party
               with a legitimate interest shall be broadly construed and shall
               include, but not be limited to, grandparents, stepparents, former
               stepparents, blood relatives and family members. A party with a
               legitimate interest shall not include any person (i) whose parental
               rights have been involuntarily terminated by court order, either
               voluntarily or involuntarily, or any other person whose interest in
               the child derives from or through such person whose parental
               rights have been so terminated, including but not limited to
               grandparents, stepparents, former stepparents, blood relatives and
               family members, if the child subsequently has been legally adopted
               ....

1997 Va. Acts ch. 690. This amendment superseded our holding in Thrift. See Deanna D. Cook

& Player B. Michelsen, Annual Survey of Virginia Law: Domestic Relations, 31 U. Rich. L.

Rev. 1069, 1078 n.71 (1997) (noting that the 1997 amendment “specifically overrules Thrift v.

Baldwin”).

       In that same enactment, the General Assembly also made the identical amendment to

Code § 20-124.1, which defines “person with a legitimate interest” in connection with custody

and visitation arrangements for minor children. 1997 Va. Acts ch. 690. The same enactment
                                                -6-
modified the statute captioned “Legal effects of adoption,” Code § 63.1-233, currently Code

§ 63.2-1215:

                       The birth parents, and the parents by previous adoption, if
               any, except where a final order of adoption is entered pursuant to
               § 63.1-231, and any other person whose interest in the child
               derives from or through such parent or previous adoptive parent,
               including but not limited to grandparents, stepparents, former
               stepparents, blood relatives and family members, other than any
               such parent who is the husband or wife of one of the petitioners,
               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, and but in all cases
               the child shall be free from all legal obligations of obedience and
               maintenance in respect to them such persons. 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,
               and, unless and until such interlocutory order or final order is
               subsequently revoked, shall be entitled to all the rights and
               privileges, and subject to all the obligations, of a child of such
               person or persons born in lawful wedlock.

1997 Va. Acts ch. 690.

       These amendments reflect the General Assembly’s intention that an adoption order fully

sever the adopted child’s legal ties to the previous family. In providing for this clean break, the

General Assembly eliminated a potential source of disruption in the growing bond between the

adopted child and the adopting family.

       In their fifth assignment of error, the Harveys make an analogous argument to the one

before us in Thrift. They contend that their claim for visitation was rooted not only in their

status as biological grandparents but also derived from their status as persons of interest,

particularly as persons who previously had received court-ordered visitation. Ruling as the

Harveys request, however, would require us to circumvent the plain language of Code

§ 63.2-1215. The Harveys’ interest in S.H. and J.H. plainly derives from their status as



                                                -7-
biological grandparents. More significantly, the Harveys’ agument cannot be reconciled with the

plain language of the applicable statutes.

       The circuit court had jurisdiction over the Flockharts’ adoption petition. Entry of the

order of adoption divested the Harveys of any right to visitation by operation of law.

Consequently, there was no need for the Flockharts to file a separate pleading to seek the

termination of the grandparents’ visitation. Therefore, the Flockharts’ failure to timely appeal

the juvenile court’s visitation order is of no legal consequence in this case.

               II. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE HARVEYS’
                   MOTION FOR A CONTINUANCE.

       The Harveys contend that the addendum to the Frederick County Department of Social

Services’ investigative report – filed on May 20, 2014, with a trial date of May 27, 2014 –

necessitated a continuance to allow further investigation of the facts described in the addendum

and the initial report. The failure to grant the continuance, the Harveys argue, “seriously

imperiled” the circuit court’s “just determination of the facts.”

               The decision to grant a motion for a continuance is within the
               sound discretion of the circuit court and must be considered in
               view of the circumstances unique to each case. The circuit court’s
               ruling on a motion for a continuance will be rejected on appeal
               only upon a showing of abuse of discretion and resulting prejudice
               to the movant. Additionally, in the application of these principles,
               . . . when a circuit court’s refusal to grant a continuance “seriously
               imperil[s] the just determination of the cause,” the judgment must
               be reversed.

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)

(second alteration in original) (quoting Myers v. Trice, 86 Va. 835, 842, 11 S.E. 428, 430

(1890)). “‘[T]he abuse of discretion standard requires a reviewing court to show enough

deference to [the trial court’s] judgment that [it] does not reverse merely because it would have

come to a different result in the first instance.’” Lawlor v. Commonwealth, 285 Va. 187, 212,

738 S.E.2d 847, 861 (2013) (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d
                                                -8-
315, 322 (4th Cir. 2008)). “Accordingly, ‘when a decision is discretionary . . . . the court has a

range of choice, and . . . its decision will not be disturbed as long as it stays within that range and

is not influenced by any mistake of law.’” Id. at 212-13, 738 S.E.2d at 861 (alterations in

original) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352,

717 S.E.2d 134, 137 (2011)).

       We find no abuse of discretion here. First, as of May 23, 2014, when the Harveys moved

for a continuance, the adoption petition had been pending for close to one and a half years.

Although not dispositive, a trial court certainly may consider the fact that a case has been

pending for a lengthy period of time in weighing the appropriateness of a continuance. Second,

the motion for a continuance did not mention any attempt to contact the authors of either the

initial report or the addendum. In this connection, the initial report was filed on April 7, 2014,

giving the Harveys sufficient time to investigate its contents and, if necessary, subpoena

witnesses. Third, counsel for the Harveys received the addendum on May 20, 2014, one week

before the hearing. The addendum is brief, and its substance is not complex. The Harveys’ able

and experienced counsel could, and did, cross-examine the Flockharts concerning the

addendum’s contents. On this record, we find neither an abuse of discretion, nor any prejudice

in the circuit court’s decision to deny the requested continuance.

               III. THE ADOPTION COMPLIED WITH STATUTORY PROCEDURES.

       The Harveys also assert that this adoption did not comport with the adoption statutes.

They take the view that S.H.’s and J.H.’s adoption “did not fall into any of the[] categories”

authorized by Virginia law. The Harveys acknowledge that Virginia law authorizes adoptions by

foster parents, see Code § 63.2-1229, but they make the technical argument that the Flockharts

were no longer foster parents when they filed their petition for adoption. They maintain that the




                                                 -9-
Flockharts’ relationship owed, instead, to the Shenandoah County Circuit Court’s October 17,

2012, order granting their petition for custody.

       As this issue is one of law, we review the circuit court’s determination de novo. Rollins,

37 Va. App. at 79, 554 S.E.2d at 102. “[T]he adoption statutes should be liberally construed to

carry out the beneficent purposes of . . . adoption, [and at the same time,] the principle is well

established that courts must construe statutes according to the language used by the legislature.”

Sozio v. Thorpe, 22 Va. App. 271, 274, 469 S.E.2d 68, 69 (1996) (second alteration in original)

(citations and internal quotation marks omitted).

       The circuit court correctly determined that the Flockharts’ adoption could proceed under

Code § 63.2-1229. That statute provides, in relevant part,

                      When a foster parent who has a child placed in the foster
               parents’ home by a licensed or duly authorized child-placing
               agency desires to adopt the child and (i) the child has resided in the
               home of such foster parent continuously for at least eighteen
               months and (ii) the birth parents’ rights to the child have been
               terminated, the circuit court shall accept the petition . . . .

Under further conditions, the court “may enter a final order of adoption.” Id. There is no factual

question here that the Flockharts originally received custody of S.H. and J.H. as foster parents or

that Code § 63.2-1229’s other conditions are satisfied. The Harveys do not point us to any

statute that would have terminated the Flockharts’ status as foster parents, for Code § 63.2-1229

purposes, once they were awarded custody following a petition. To the contrary, we observe that

the plain meaning of “foster parent” includes one in the Flockharts’ position, either before or

after their custody petition’s award. See Black’s Law Dictionary 1287 (10th ed. 2014) (defining

“foster parent” as “[a]n adult who, though without blood ties or legal ties, cares for and rears a

child”); see also id. at 290 (defining “foster child” as “[a] child whose care and upbringing are

entrusted to an adult other than the child’s natural or adoptive parents”). The Flockharts were



                                                - 10 -
S.H.’s and J.H.’s foster parents no less upon the custody petition’s award. Code § 63.2-1229

applies.

       Code § 16.1-281(A), cited by the Harveys, does not support their argument. That

provision addresses foster care plans, specifying,

                        In any case in which (i) a local board of social services
               places a child through an agreement with the parents or guardians
               where legal custody remains with the parents or guardian, or
               (ii) legal custody of a child is given to a local board of social
               services or a child welfare agency, the local department of social
               services or child welfare agency shall prepare a foster care plan
               for such child, as described hereinafter.

Id. (emphasis added). Nothing in this statute provides that foster parents cease to be foster

parents when they petition for, and are awarded, child custody.

       The Harveys’ argument runs contrary to the manifest legislative intent that foster parents

be given the opportunity to adopt the children who have been placed in their care. We find no

merit to the Harveys’ argument that the court did not comply with the adoption statutes.

               IV. THE EVIDENCE AMPLY SUPPORTS THE CIRCUIT COURT’S FINDING THAT
                   ADOPTION SERVED THE CHILDREN’S BEST INTERESTS.

       The Harveys next argue that the circuit court erred in finding that the adoption served

S.H.’s and J.H.’s best interests. We presume that the circuit court thoroughly weighed all of the

evidence, considered the statutory requirements, and made its determination based on the

children’s best interests. See Brown v. Brown, 218 Va. 196, 200, 237 S.E.2d 89, 92 (1977) (per

curiam). “[W]e view the evidence in the light most favorable to the party prevailing below,

giving it all reasonable inferences fairly deducible therefrom.” Winfield v. Urquhart, 25

Va. App. 688, 690, 492 S.E.2d 464, 464 (1997).

       There is no question that the Flockharts love S.H. and J.H. The Flockharts both have

good jobs and are eager and able to care for the children. They have cared for S.H. and J.H.

from a tender age, and the children are doing well in their care. Moreover, the circuit court made
                                               - 11 -
a finding of fact – which now binds us on appeal since it is not plainly wrong or without

evidence to support it – that “[t]he parties are unable to cooperate in and resolve disputes

regarding the children, in part, because the Harveys refuse to recognize the Flockharts as the

parents of the children.” The consistent presence of this considerable tension between the

Harveys and the Flockharts in the lives of the children could certainly be found by the circuit

court not to be in the best interests of the children. In addition, allowing the Flockharts to adopt

S.H. and J.H. allows the children to remain united with their siblings. Finally, the Frederick

County Department of Social Services recommended that the court grant the Flockharts’ petition

for adoption.

       The Harveys argue that the Department of Social Services’ report is flawed. They

contend that the addendum “proved that the initial report was untrustworthy.” Regarding the

addendum, the record reveals that the problems with the pool were minor and that the children

were no longer sleeping in the basement. The addendum in no way altered the initial report’s

most salient findings – that the Flockharts and the children have bonded over a period of years

and that the Flockharts can provide the children with a stable, nurturing, and loving upbringing.

       The Harveys also criticize the circuit court’s reliance on Welch’s testimony. They note

that Welch did not observe the Harveys with the children, did not watch the children at the

Flockharts’ home, and did not cross-check the representations made by the Flockharts. “The

credibility of the witnesses and the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). Consequently, on appeal,

we “defer to the trial court’s evaluation of the credibility of the witnesses who testify” before it.

Shackelford v. Shackelford, 39 Va. App. 201, 208, 571 S.E.2d 917, 920 (2002). Although the

circuit court addressed the Department’s report and Welch’s testimony, ample additional

                                                - 12 -
evidence, noted above, supports the circuit court’s conclusion that granting the Flockharts’

petition serves the children’s best interests. This is not a close case under the standard of review,

which requires us to review the facts in the light most favorable to the prevailing party.

       Finally, regarding the circuit court’s determination that the Harveys’ visitation should

cease, as noted above, the Harveys’ right to visitation, as S.H.’s and J.H.’s biological

grandparents, terminated upon the entry of the adoption order.

                                          CONCLUSION

       We affirm the judgment of the circuit court.

                                                                                             Affirmed.




                                               - 13 -
