                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED




              ANGELA M. GREGORY
                                                                                MEMORANDUM OPINION
              v.      Record No. 0455-18-3                                          PER CURIAM
                                                                                  NOVEMBER 6, 2018
              PAMELA S. MARTIN


                                     FROM THE CIRCUIT COURT OF PULASKI COUNTY
                                                 Bradley W. Finch, Judge

                                (R. Christopher Munique; Lacy, Campbell & Munique, P.C., on
                                brief), for appellant. Appellant submitting on brief.

                                No brief for appellee.1


                      Angela M. Gregory (mother) appeals an order denying her motion to amend visitation and

              finding that she was withholding her consent to the adoption of her child contrary to the child’s best

              interests.2 She argues the circuit court also erred in violating her constitutional due process rights.

              We conclude the circuit court applied the wrong standard when finding mother withheld her consent

              contrary to the child’s best interests and erred in its consideration of her motion to amend visitation.

              Accordingly, we reverse the circuit court’s decisions and remand for further proceedings.

                                                          BACKGROUND

                      This is the third time this Court has reviewed this case on appeal. We summarize here

              the pertinent factual and procedural history. “When reviewing a trial court’s decision on appeal,



                      
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                       R. Cord Hall, guardian ad litem for the minor child, submitted a letter in support of the
              appellee.
                      2
                          Mother is now known as Angela Charlotte Mullins.
we view the evidence in the light most favorable to the prevailing party, granting it the benefit of

any reasonable inferences.” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547,

552, 811 S.E.2d 835, 838 (2018) (quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578

S.E.2d 833, 835 (2003)).

       A daughter was born to mother in 2005. Daughter lived with mother for “about a year”

before she went to live with her paternal grandparents. Her paternal grandmother died in 2007.

In 2009, mother was convicted of several felonies and sentenced to approximately two years in

prison. While mother was in prison, daughter’s paternal grandfather moved in with Pamela S.

Martin (aunt). Aunt became daughter’s primary caretaker. On October 21, 2010, the Pulaski

County Juvenile and Domestic Relations District (JDR) Court awarded aunt custody of daughter

and ruled that mother would have no visitation. During Christmastime 2010, daughter spent

several days and nights with her maternal grandparents and half-siblings. The last time mother

visited her daughter was the day before she was arrested in 2009.

       While in prison, mother wrote numerous letters to daughter; however, aunt did not give

the letters to daughter and did not tell daughter that mother tried to contact her. Mother also

wrote letters to aunt asking about daughter’s well-being and expressing her desire to establish a

relationship with daughter upon mother’s release from prison. Aunt responded that she would

fight against mother’s contact with the child.

       The month before mother was to be released, aunt filed a petition in the JDR court for

consent to proposed adoption. Daughter’s father was in prison and consented to the adoption.

Mother was released from prison in February 2011. The day after she was released, she filed a

motion in the JDR court to amend visitation. Mother requested “some type of visitation” in

order “to reestablish a relationship with [her] daughter.” At that point, aunt stopped all contact

between daughter and her maternal relatives. On May 9, 2011, the JDR court denied mother’s

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petition for visitation. It also found mother was withholding her consent for adoption contrary to

the child’s best interests and granted aunt’s request to proceed with the adoption. Mother

appealed the order to the circuit court, which did not enter a final order in the case until February

11, 2014. Mother appealed that order to this Court arguing she had not received a de novo trial

in the circuit court because it refused to allow her to present all her evidence. This Court held

that the circuit court denied mother a de novo trial and violated her due process rights. We

reversed and remanded the case for a de novo trial. Gregory v. Martin, No. 0431-14-3, 2014

Va. App. LEXIS 312 (Va. Ct. App. Sept. 16, 2014).

       On remand, after a de novo trial, the circuit court again entered an order that denied

mother’s motion for visitation and found she withheld her consent to aunt’s petition for adoption.

Mother appealed that decision to this Court. This Court held that the circuit court erred by not

allowing mother to present evidence about her relationship with the child prior to October 21,

2010, which was the date custody was given to aunt, and erred in concluding that there was no

change of circumstances. The circuit court’s order was reversed, and the matter was remanded

to the circuit court for further proceedings. Gregory v. Martin, No. 0816-15-3, 2016 Va. App.

LEXIS 199 (Va. Ct. App. July 19, 2016).

       On remand, the circuit court held a new trial on August 31, 2017. At this point, daughter

was twelve years old, and mother had been out of prison for about six and a half years. Mother

admitted she was not a good parent prior to her incarceration because of her extensive drug use.

Prior to her incarceration, she visited her daughter about once or twice a month and brought her

two older daughters with her when she did visit. Mother testified that she had been drug-free

since she was incarcerated in 2009 and had not failed any drug screens while she was on

probation, which she completed two and a half years early. Mother found full-time work in a

doctor’s office, obtained her driver’s license, bought a vehicle, and had her civil rights restored.

                                                -3-
In 2015, mother gained physical custody of her two older children, who were doing well at the

time of the hearing. Aunt testified that daughter was doing exceedingly well in school and was

involved in many activities. Daughter’s bond with aunt and grandfather was strong. Aunt had

not told daughter that her mother wanted to visit her. She was concerned that daughter would be

emotionally hurt if mother relapsed into drug use.

       The circuit court found a material change of circumstances and that “mother’s

circumstances have changed dramatically. She has improved . . . her life, and her condition, and

really everything about her life, and . . . that’s a wonderful thing.” The circuit court, however,

found that amending visitation was not in daughter’s best interests. Additionally, the circuit

court found mother was withholding her consent for the adoption contrary to the best interests of

the child. This appeal followed.

                                            ANALYSIS

                                      A. Standard of Review

       “Because the circuit court heard evidence ore tenus, its factual findings are ‘entitled to

the same weight accorded a jury verdict[] and . . . will not be disturbed on appeal unless plainly

wrong or without evidence to support’ them.” Geouge v. Traylor, 68 Va. App. 343, 347, 808

S.E.2d 541, 543 (2017) (quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 44, 764

S.E.2d 284, 289 (2014)). “In its capacity as factfinder, therefore, the circuit court retains ‘broad

discretion in making the decisions necessary to guard and to foster a child’s best interests.’”

Castillo, 68 Va. App. at 558, 811 S.E.2d at 841 (quoting Toms v. Hanover Dep’t of Soc. Servs.,

46 Va. App. 257, 266, 616 S.E.2d 765, 769 (2005)).

               The Virginia Supreme Court has identified three principal ways by
               which a circuit court abuses its discretion: “when a relevant factor
               that should have been given significant weight is not considered;
               when an irrelevant or improper factor is considered and given
               significant weight; and when all proper factors, and no improper

                                                -4-
               ones, are considered, but the court, in weighing those factors,
               commits a clear error of judgment.”

Rubino v. Rubino, 64 Va. App. 256, 262, 767 S.E.2d 260, 263 (2015) (quoting Landrum v.

Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).

                                           B. Visitation

        Mother argues that the trial court erred when it found the evidence sufficient to deny her

motion to amend visitation.

        “A trial court’s determination with regard to visitation is reversible only upon a showing

that the court abused its discretion.” Stadter v. Siperko, 52 Va. App. 81, 88, 661 S.E.2d 494, 497

(2008). “When a party has filed a petition to modify an existing visitation order, the courts must

apply the Supreme Court’s two-pronged test enunciated in Keel v. Keel, 225 Va. 606, 303 S.E.2d

917 (1983), to determine whether modification of that order is proper.” Rhodes v. Lang, 66

Va. App. 702, 709, 791 S.E.2d 744, 747 (2016). “That test asks, ‘first, has there been a change

in circumstances since the most recent custody award; second, would a change in custody be in

the best interests of the children.’” Id. (quoting Keel, 225 Va. at 611, 303 S.E.2d at 921).

        Here, the circuit court found the “mother’s circumstances have changed dramatically.

She has improved her, her life, and her condition, and really everything about her life, and, and

that is a - that’s a wonderful thing.” It found there had been a change in circumstances, and that

prong of the test is not before us. We conclude, however, that the circuit court erred in its

consideration of the factors regarding whether a change in visitation would be in the child’s best

interests.

        “‘[T]here is no simple, mechanical, cut and dried way’ to apply the best interests of the

child standard.” Welch, 64 Va. App. at 48, 764 S.E.2d at 291 (quoting Peple v. Peple, 5

Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). “Instead, ‘the question must be resolved . . . in



                                                -5-
light of the facts of each case.’” Id. (quoting Toombs v. Lynchburg Div. of Soc. Servs., 223 Va.

225, 230, 288 S.E.2d 405, 407 (1982)).

       Code § 20-124.3 provides ten factors for the court to consider “[i]n determining best

interests of a child for purposes of determining custody or visitation.”3 Mother’s petition to

amend visitation asked for “some type of visitation” to “reestablish a relationship” with daughter.

Here, however, the circuit court did not consider the factors through the lens of whether “some

type of visitation” was in the best interest of daughter. Rather, the circuit court focused on the

length of time that mother was separated from daughter, despite the fact that mother had been

trying to contact her daughter since her incarceration and had sought visitation immediately upon

her release.

       For example, when the court considered the first Code § 20-124.3 factor, daughter’s “age,

physical and mental condition of the child, giving due consideration to the child’s changing

developmental needs,” the court found daughter to be a “happy, healthy, appropriately

developing girl for her age.” The court then concluded

               I find that that factor weighs in favor of [aunt]. It weighs in favor
               of the aunt because the fact is, and this is undisputed, that for many
               years now this child has lived with her aunt, been cared for by her
               aunt, and her aunt has been instrumental in the child’s physical and
               mental condition and changing developmental needs.

The court, in essence, considered as a factor which of the two parties had contributed more to

daughter’s development and well-being. However, the circuit court failed to consider that

mother had been trying to visit with her daughter since she was released from prison, but it took

years for her case to be heard.




       3
         Although Code § 20-124.3 permits the court to consider factors other than those listed
in the code section, the circuit court expressly stated it considered no other factors.
                                                 -6-
        In addressing the second factor regarding the “age, physical and mental condition of each

parent,” the court “consider[ed] the mother and then also the custodian, . . . the aunt.” The

circuit court found that mother had overcome her substance abuse addiction and was “doing very

well.” The circuit court concluded that neither mother nor the aunt’s age, physical or mental

condition “would be in any way viewed negatively in this matter.”

        In addressing the third factor concerning the relationship with the child, the positive

involvement in the child’s life, and the ability to meet the needs of the child, the circuit court

focused on the quality of aunt’s relationship with daughter. It also found that mother could meet

daughter’s emotional, intellectual, and physical needs, yet the circuit court emphasized that

daughter had had “very minimal contact with her mother in her life and certainly in recent

years.” The circuit court did not consider the factor in the context of whether a reestablishment

of the mother-daughter relationship through visitation was or was not in the daughter’s best

interest.

        In addressing the fourth factor, which is the “needs of the child, giving due consideration

to other important relationships of the child, including but not limited to siblings, peers and

extended family members,” the court considered daughter’s strong bond with her paternal

relatives and the limited relationship with her maternal relatives, including two half-siblings.

The court did not consider, given daughter’s strong bond with her paternal relatives, whether it

was or was not in daughter’s best interests to expand her relationships with her maternal

relatives. In addition, the circuit court found that daughter’s relationships with her half-siblings

had been “very limited” and that “over the last several years she has had little to no relationship

with those siblings.” Again, however, the circuit court failed to consider that mother had been

seeking to build the relationship between daughter and her half-siblings, but the delay in the

court process prevented her from having her motion heard for six years.

                                                 -7-
        Likewise, in considering the fifth factor regarding the “role that each parent has played

and will play in the future,” the circuit court emphasized that aunt’s role in daughter’s life had

been “substantial” and mother’s role was “minimal.” The circuit court did not consider the time

that it took for the case to be brought forward for trial and that mother had been trying to have a

greater role in daughter’s life.

        For the sixth factor, regarding the “propensity of each parent to actively support the

child’s contact and relationship with the other parent, including whether a parent has

unreasonably denied the other parent access to or visitation with the child,” the circuit court

concluded that there were “disputes in the evidence as far as whether [aunt] has tried to prevent

mother from seeing the child or having contact with the child.” However, this ruling ignores the

evidence that aunt never gave mother’s letters to daughter or told her that mother was trying to

see her. The circuit court also did not consider the evidence that aunt told mother that she was

“going to . . . do her best to keep [mother] out of [daughter’s] life.”

        In considering the seventh factor regarding the “willingness of the parent to maintain a

close and continuing relationship with the child,” the court found both mother and aunt were

willing to maintain a relationship, but that aunt’s relationship had been much stronger. It did not

consider how the relationship of each party factored into the determination of whether it was or

was not in daughter’s best interest for some type of visitation. The court was not required to

explain its reasoning, but it is significant that when it elaborated on each factor it did not

consider that factor in the context of benefit or detriment of “some type of visitation” between

daughter and her mother.

        Finally, the circuit court concluded there had “not been evidence presented as to the

reasonable preference of the child.” The undisputed evidence and the guardian ad litem’s

statements to the court showed that the child had not been given an opportunity to express a

                                                   -8-
preference regarding visitation because aunt had kept from daughter the knowledge that mother

was seeking contact.

       In summary, mother’s petition to amend visitation requested only “some type of

visitation” in order “to reestablish a relationship with [her] daughter.” The circuit court

considered the Code § 20-124.3 factors, but failed to consider the factors in a light relevant to

whether it was in daughter’s best interests to have some sort of visitation with mother. The

circuit court erroneously focused on the fact that mother had not had contact with the child since

her release from incarceration; however, the evidence proved that mother had sought visitation

with daughter immediately after her release from prison. We find that the evidence did not

support the circuit court’s ruling to deny mother’s petition to amend visitation.

                                          C. Withhold consent

       Mother argues that the circuit court erred by finding that the evidence was sufficient to

prove that she was withholding her consent to the adoption contrary to the child’s best interests.

       “‘[T]he interest of parents in the care, custody, and control of their children . . . is perhaps

the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.”

Geouge, 68 Va. App. at 368, 808 S.E.2d at 553 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)

(plurality opinion)). “We have consistently held that to grant a petition for adoption over a birth

parent’s objection, there must be more than a mere finding that the adoption would promote the

child’s best interests.” Copeland v. Todd, 282 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 statutory

scheme for adoption, including Code §§ 63.2-1205 and -1208, defines the best interests of the child

in terms that require more expansive analysis than when the contest is between two biological

parents.” Id. at 199, 715 S.E.2d at 20.




                                                  -9-
        Code § 63.2-1205 states:

                In determining whether the valid consent of any person whose
                consent is required is withheld contrary to the best interests of the
                child, . . . 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.

        The circuit court thoroughly examined each of the Code § 63.2-1205 factors and found in

favor of mother with several of the factors. For example, in considering the first factor regarding

“the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child,” the

circuit court held that “early in [daughter’s] life there was little or no effort on the part of the

mother to maintain legal and physical custody of the child.” Then, the circuit court found that

“mother, since her incarceration and since her release, had made very serious efforts to, to

maintain or to obtain custody of her child.” In considering the second factor regarding “whether

the birth parent(s) are currently willing and able to assume full custody of the child,” the circuit

court held that “mother is willing and able to assume custody of the child.” In considering the

fourth factor regarding “the birth parent(s)’ ability to care for the child,” the circuit court held

that mother was able to care for the child.

        For the remaining factors, the evidence did not support the circuit court’s findings, and

the circuit court inappropriately placed too much weight on the length of time that mother had

not seen the child while she was pursuing her appeals. For example, in considering the third

factor regarding “whether the birth parent(s)’ efforts to assert parental rights were thwarted by

                                                 - 10 -
other people,” the circuit court found that in her daughter’s early years, mother “had very little

involvement” with her, primarily because of her drug addiction and incarceration. Then, the

circuit court held that mother’s parental rights were not thwarted by other people after she was

released from prison. However, it noted that there were contested, legal proceedings, which

“may have prevented” mother from asserting her parental rights. The circuit court ignored the

evidence that mother wrote to daughter and to aunt while she was in prison, and aunt told mother

that she was “going to . . . do her best to keep [mother] out of [daughter’s] life.” Aunt did not

tell daughter about the letters or that her mother was trying to contact her.

       Similarly, in analyzing other Code § 63.2-1205 factors, the circuit court erroneously held

against mother the time that she was apart from daughter while the litigation and appeals were

proceeding. With respect to the fifth factor and the child’s age, the circuit court found that

daughter was twelve years old and had been living with the aunt for many years. However, the

circuit court ignored the facts that mother had filed a petition for visitation in 2011 and the

lengthy court proceedings prevented her from having her case heard in circuit court from 2011

until 2017. In considering the sixth factor regarding “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 circuit court found that “there has been little, if any, relationship between the

mother and [daughter].” The circuit court noted that “since the incarceration, there still has not

been a, a quality relationship” and that “[t]here’s essentially no relationship now.” However, the

lack of a current relationship between mother and daughter resulted from the length of the court

proceedings, not mother’s actions. Mother had been trying to have a relationship with daughter

since she was incarcerated by writing letters and filing for a motion to modify visitation as soon

as she was released from prison. With respect to the seventh factor and “the duration and

suitability of the child’s present custodial environment,” the circuit court found that “it has been

                                                - 11 -
a steady custodial relationship that has been continuous for many years now.” Again, the circuit

court focused on conditions that were out of mother’s control. Daughter had been in the same

situation despite mother’s attempts to have her case heard. In considering the eighth factor and

“the effect of a change of physical custody on the child,” the circuit court held that it would be

“very difficult to know” how a change in physical custody would affect daughter. There was no

medical or expert evidence offered on this factor. The circuit court noted that daughter was

thriving in her current environment.

       The circuit court’s findings relied heavily on the fact that mother had not seen daughter

since 2009; however, the circuit court ignored aunt’s actions and the length of the court

proceedings. Accordingly, we find that the circuit court did not properly consider the Code

§ 63.2-1205 factors in light of the evidence presented, so the circuit court’s ruling that mother

withheld her consent to the adoption contrary to the best interests of the child is reversed and

remanded. See Geouge, 68 Va. App. at 371, 808 S.E.2d at 554 (“so long as the circuit court

properly considered the statutory factors, we can reverse its conclusions only if they are beyond

the pale of reasonableness).

                                          D. Due process
       Mother argues that the circuit court violated her due process rights “by committing errors

against her that resulted in the trial of this case beginning on September 16, 2011 and eventually

ending on August 31, 2017.”

       “[A]s an appellate court, we seek the best and narrowest ground available for our

decision.” Geouge, 68 Va. App. at 377, 808 S.E.2d at 557 (quoting Harvey v. Commonwealth,

65 Va. App. 280, 285 n.2, 777 S.E.2d 231, 234 n.2 (2015)). Therefore, considering the above

holdings, we will not address this assignment of error.




                                               - 12 -
                                        CONCLUSION

       The circuit court abused its discretion by not considering the Code § 20-124.3 factors or

the Code § 63.2-1205 factors in light of the procedural history and evidence presented. We

therefore reverse these decisions and remand for further proceedings.

                                                                         Reversed and remanded.




                                             - 13 -
Petty, J., concurring.

          I concur with the majority that this case must once again be remanded to the trial court

for further consideration. I choose to write separately, however, because I believe that there is an

additional consideration that, like the proverbial elephant in the room, cannot be ignored. When

weighing the factors set out in Code § 63.2-1205, the trial court must be mindful that the

“meaning of ‘the best interests of the child’ is different in the context of adoptions, and must be

read in light of the biological parent’s due process rights in her relationship to her child.”

Copeland v. Todd, 282 Va. 183, 197, 715 S.E.2d 11, 19 (2011).

          The United States Supreme Court has “recognized on numerous occasions that the

relationship between parent and child is constitutionally protected.” Quilloin v. Walcott, 434

U.S. 246, 255 (1978).

                 We have little doubt that the Due Process Clause would be
                 offended [if] a State were to attempt to force the breakup of a
                 natural family, over the objections of the parents and their children,
                 without some showing of unfitness and for the sole reason that to
                 do so was thought to be in the children’s best interest.

Copeland, 282 Va. at 198-99, 715 S.E.2d at 19 (alteration in original) (quoting Quilloin, 434

U.S. at 255). Moreover, “[t]o separate a child from its parents, the evidence of their unfitness

must be cogent and convincing.” Judd v. Van Horn, 195 Va. 988, 995, 81 S.E.2d 432, 436

(1954).

          Here, the circuit court made specific findings that “mother is willing and able to assume

custody of the child,” that mother “does appear to be able to care for the child,” and that “there’s

no indication that the mother could not [meet] the emotional, intellectual, and physical needs of

[daughter].” Nothing in the record indicates that the circuit court found cogent and convincing

evidence that would overcome “the [mother’s] due process rights in her relationship to her

child.” Copeland, 282 Va. at 197, 715 S.E.2d at 19. On remand, “[t]he eight factors in Code

                                                 - 14 -
§ 63.2-1205 . . . compel [the] court to consider whether [in this case] a parent’s unfitness would

be harmful to the child’s welfare.” Id. at 199, 715 S.E.2d at 24.




                                               - 15 -
