                                COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, McCullough and Senior Judge Willis


MICHAEL ROBERT EISEMAN
                                                                   MEMORANDUM OPINION *
v.      Record No. 1473-10-1                                           PER CURIAM
                                                                     NOVEMBER 1, 2011
SARAH CUNNINGHAM BEAUDOIN AND
 THOMAS DAVID BEAUDOIN, JR.


                    FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                                  R. Bruce Long, Judge

                  (Stephanie M. Sauer; Legal Aid Society of Eastern Virginia, on
                  brief), for appellant.

                  (Amy M.P. VanFossen; Law Firm of Thomas L. Hunter &
                  Associates, on brief), for appellees.


        Michael Robert Eiseman (father) appeals an order granting Sarah Cunningham Beaudoin’s

(mother) and Thomas David Beaudoin, Jr.’s (stepfather) petition for adoption. Father argues that

the trial court erred by (1) finding that granting the petition for adoption was in the best interests of

the child; and (2) finding that a continued relationship between father and the child would be

detrimental to the child. Upon reviewing the record and briefs of the parties, we conclude that

this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

                                           BACKGROUND

        “On appeal, ‘[w]e view the evidence in the light most favorable to the prevailing party in

the circuit court and grant to that party the benefit of all reasonable inferences fairly deducible

therefrom.’” T.S.G. v. B.A.S., 52 Va. App. 583, 585, 665 S.E.2d 854, 855 (2008) (quoting Toms

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005) (internal

quotations and citation omitted)).

         So viewed, the evidence proved that mother and father were never married and had one

child, born in 2002. In August 2003, father consented to mother having sole custody of their

child. Father used illegal drugs on and off since 2002. In 2007 and 2008, father was charged

and subsequently convicted of a total of eleven criminal charges, including one count of felony

theft, three counts of felony forgery, five counts of illegal drug offenses, one count of

misdemeanor theft, and one count of driving while suspended.

         Since the child’s birth, father did not exercise regular visitation with the child. He visited

the child a few times a year, and his mother usually supervised the visitations. For example, in

2006, father had two supervised visits with the child; in 2007, father visited the child twice; and

in 2008, he had three supervised visits. In addition to his visitations, he sporadically called the

child.

         The child has lived with mother and stepfather since March 2006. Mother and stepfather

married in June 2008. In December 2008, they decided to file a step-parent adoption. Mother

asked father to consent to the adoption in January 2009. Father initially stated that he wished to

“do further research,” but never provided mother with a response, despite repeated inquiries by

mother.

         On May 13, 2009, mother and stepfather filed their petition for adoption. After two days

of testimony and argument, the trial court entered a final order of adoption granting the petition

for adoption. This appeal followed.




                                                  -2-
                                              ANALYSIS

        Father argues that the trial court erred in granting mother and stepfather’s petition for

adoption. He contends that the adoption is not in the child’s best interests and that a continued

relationship with his child would not be a detriment to her.

        In 2006, “the General Assembly amended Code § 63.2-1205 to remove the language

requiring a finding of detriment to the child to permit adoption without parental consent.”

Copeland v. Todd, 282 Va. __, __, 715 S.E.2d 11, __ (2011) (citing 2006 Acts chs. 825, 848

(effective July 1, 2006)). 1

        In Todd v. Copeland, 55 Va. App. 773, 778, 689 S.E.2d 784, 787 (2010) (emphasis in

original), this Court held that

                 the Fourteenth Amendment to the United States Constitution
                 requires prospective adoptive parents to prove, by clear and
                 convincing evidence, both that the entry of an adoption order over
                 the objection of a nonconsenting parent is in the best interest of the
                 child and that a continuing relationship with the birth parent would
                 be detrimental to the child’s welfare.


        1
            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, or is unobtainable, the circuit court or juvenile and domestic
                 relations district court, as the case may be, shall consider whether
                 granting the petition pending before it would be in the best interest
                 of the child. The circuit court or juvenile and domestic relations
                 district court, as the case may be, 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.

                                                  -3-
This Court concluded that “a trial court must make a detriment to the child determination,

regardless of the language of the relevant statute, before entering an adoption order, in order to

protect the Fourteenth Amendment rights of a nonconsenting biological parent.” Id. at 790, 689

S.E.2d at 792.

       In reaching its conclusion in this case, the trial court referred to this Court’s ruling in

Todd, and the requirements that the trial court has to determine:

                 (1) . . . whether the Respondent is withholding his consent to this
                 adoption contrary to the best interests of the child as set forth in
                 § 63.2-1205 of the Code of Virginia, 1950, as amended, (2) . . .
                 whether the petition for adoption before the Court is in the best
                 interest of the child pursuant to the factors enumerated in
                 § 63.2-1205 of the Code of Virginia, 1950, as amended, and (3) . . .
                 whether it would be detrimental to the child to continue a
                 relationship with the Respondent.

       The trial court concluded that father was withholding his consent to the adoption, which

was contrary to the best interests of the child. Then, the trial court went through the factors of

Code § 63.2-1205 to illustrate that the petition for adoption was in the child’s best interests.

Finally, it made nine factual findings to support its ruling that it would be detrimental to the child

to have a continued relationship with father.

       Since the trial court’s ruling, the Supreme Court of Virginia has issued its opinion in

Copeland, 282 Va. __, 715 S.E.2d 11. The Supreme Court of Virginia acknowledged that “the

Constitution requires more than a mere showing of the child’s best interests to terminate parental

rights.” Id. at __, 715 S.E.2d at __. The Supreme Court of Virginia found that “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 __, 715 S.E.2d at __. It concluded that “the Virginia statutory

scheme” passes “constitutional due process scrutiny” because the statutes “provide for



                                                 -4-
consideration of parental fitness and detriment to the child,” despite the fact that they do not

include the phrase “detriment to the child.” Id. at __, 715 S.E.2d at __.

        In light of the decision in Copeland, we affirm the trial court’s order granting the petition

for adoption.

                                      Best interests of the child

        Father argues that the trial court erred in finding that the adoption was in the child’s best

interests.

        Code § 63.2-1205 lists the factors that a trial court shall consider in determining whether

the adoption is in the child’s best interests. Here, the trial court discussed each factor to show

that the adoption was in the child’s best interests. The trial court emphasized father’s limited

contact with the child and the fact that what visitation he did have was supervised. The trial

court noted that father had not filed for custody or visitation prior to the adoption suit and was

not seeking physical custody of the child. Meanwhile, the child was in an “excellent current

environment” and any change would be “devastating.”

        Contrary to father’s argument, the evidence supports the trial court’s decision. 2 “Where

the record contains credible evidence in support of the findings made by that court, we may not

retry the facts or substitute our view of the facts for those of the trial court.” Ferguson v.

Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992). Accordingly,

the trial court did not err in finding that the adoption was in the best interests of the child.




        2
          In addition, father asks this Court to adopt the reasoning in In Re: Rivera, 57 Va. Cir.
377 (2002), and find that the adoption was not in the child’s best interests. We decline the
invitation.
                                                  -5-
                                        Detriment to the child

        Father argues that the trial court erred in finding that a continued relationship between

father and the child would be detrimental to the child.

        In the final order of adoption, the trial court found that father was an “unfit” parent and

found his credibility to be “questionable at best.” To support its finding that it would be

detrimental to the child to have a continued relationship with father, the trial court noted father’s

drug problems and criminal convictions. The trial court found that father had “no moral

conscience” and had “nothing positive whatsoever” to teach the child.

        “It is well established that the trier of fact ascertains a witness’ credibility, determines the

weight to be given to their testimony, and has the discretion to accept or reject any of the

witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en

banc). Here, the trial court had the opportunity to hear from the parties, and it did not find

father’s testimony to be credible.

        In his brief, father argues that his drug problems alone were not enough to support the

adoption, and then, he argues that his criminal convictions alone were not enough to support the

adoption. However, the trial court looked at the whole picture. When considering the totality of

father’s situation, including his history of drug abuse, his criminal convictions, his lack of

stability, and his poor choices, the trial court did not err in finding that his relationship with the

child would be detrimental.

        According to the Supreme Court of Virginia, it was not necessary for the trial court to

find that a continued relationship with the father would be detrimental to the child because the

factors in Code § 63.2-1205 “focus on both the parent and child and therefore compel a court to

consider whether a parent’s unfitness would be harmful to the child’s welfare.” Copeland, 282




                                                  -6-
Va. at __, 715 S.E.2d at __ (citing Code § 63.2-1205). In this case, the trial court explained in

detail its reasoning for granting the petition for adoption, and we affirm its ruling.

                                          Attorney’s Fees

       Mother and stepfather requested that they be awarded their attorney’s fees in defending

this appeal. However, because this litigation “addressed appropriate and substantial issues,” and

“neither party generated unnecessary delay or expense in pursuit of its interests,” Estate of

Hackler v. Hackler, 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), we deny their requests for

an award of attorney’s fees and costs they incurred on appeal. See O’Loughlin v. O’Loughlin,

23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).

                                          CONCLUSION

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

                                                                                          Affirmed.




                                                 -7-
