                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Alston and AtLee
              Argued by teleconference
UNPUBLISHED




              BARBARA ANNE KEEN
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0678-17-3                                     CHIEF JUDGE GLEN A. HUFF
                                                                                 DECEMBER 19, 2017
              GARY RICKY BARNETT AND
               ANNETTE BARNETT


                                  FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                                              Henry A. Vanover, Judge

                               Robert M. Galumbeck (Galumbeck & Kegley, Attorneys, on brief),
                               for appellant.

                               Penny E. Nimmo (Janice L. Davis, Guardian ad litem for minor
                               child; Broadwell, Gillespie and Nimmo, P.C.; Justice Law Office,
                               P.C., on brief), for appellees.


                     Appellant Barbara Anne Keen (“mother”) challenges the order of the Circuit Court of

              Buchanan County (“trial court”) terminating her parental rights and permitting adoption of her

              child, B.M.B., by appellees Gary Ricky Barnett and Annette Barnett, the child’s paternal

              grandparents (collectively, the “grandparents”). On appeal, mother contends that the trial court

              erred in ordering a close relative adoption of B.M.B. without her consent and in terminating her

              parental rights. For the following reasons, this Court affirms the trial court’s order.

                                                      I. 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)


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

(2005)). So viewed, the evidence is as follows.

       B.M.B. was born December 1, 2009. The grandparents first obtained physical custody of

the child in March 2010 following a child abuse and neglect finding against mother in the

Buchanan County Juvenile and Domestic Relations District Court (“JDR court”). In its order,

the JDR court granted legal custody to the Buchanan County Department of Social Services and

physical custody to B.M.B.’s biological father, Joseph Barnett, to be shared with his parents, all

of whom lived together in the grandparents’ house. The grandparents later petitioned the JDR

court for exclusive physical and legal custody of the child, which was granted by order dated

February 13, 2012. Thus, they have had custody of B.M.B. since he was four months old, and he

is now eight years old.

       Over four years later, on March 28, 2016, the grandparents filed a petition for a close

relative adoption of B.M.B. under Code § 63.2-1242.3 in the trial court. B.M.B.’s father

consented to the adoption. Mother opposed the petition and refused her consent. The trial court

appointed a guardian ad litem for B.M.B., who subsequently filed an answer to the petition

indicating her belief that mother withheld her consent contrary to the child’s best interests and

that adoption by the grandparents would be in the child’s best interests.

       The trial court held an ore tenus hearing on June 8, 2016. Before hearing evidence, the

trial court heard mother’s argument that it lacked jurisdiction to grant a close relative adoption

pursuant to Code §§ 63.2-1242.1 and -1242.3 because such adoptions require consent by both

parents and mother did not consent to the adoption. The trial court overruled this objection.

       The biological father and the grandparents all testified in support of the petition, and

mother presented evidence against it. The evidence established that since entering the

grandparents’ custody, the child was “in school and flourishing.” The grandparents’ home was

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“appropriate” for raising B.M.B., and they were financially and physically able to care for the

child. Mother was unable to interact with the child during a period of incarceration from August

2011 to August 2014. Following her release, the grandparents permitted mother to have informal

supervised visits with B.M.B. several times a month. She has not sought court-ordered custody

or visitation, and concedes that she is not in a position to assume custody of B.M.B.

        The evidence additionally established that mother was herself adopted by the child’s

maternal grandparents, who continue to take care of all of mother’s affairs including managing

her finances. Mother suffers from fetal alcohol syndrome and bi-polar disorder for which she

continues to receive medical treatment and psychiatric counseling. Mother is easily stressed and

has “problems” being in large crowds, preferring to remain in “small[,] controlled places.”

        The trial court issued a letter opinion on June 14, 2016, stating that it was “inclined to

grant the adoption” based on the evidence presented at the June 8 hearing. Rather than entering a

final order, however, the trial court noted:

                [T]he parties have advised they are willing to have an open
                adoption. If this is the case, then it would be proper for your
                agreement to be drafted, signed and incorporated into your final
                decree. Therefore, this being the situation, I would direct that the
                agreement be drawn, signed and incorporated into the decree.

The parties were unable to reach an agreement. Accordingly, on March 28, 2017, the trial court

entered a final order granting the grandparents’ petition to adopt the child pursuant to Code

§ 63.2-1242.3. In its order, the trial court specifically found that mother “has withheld her

consent to said adoption . . . of said child, contrary to the child’s best interests,” that “the best

interests of said child will be served by such adoption,” and that “all applicable statutes have

been complied with.” This appeal followed.




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                                             II. ANALYSIS

          “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 Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16

(1986).

                                    Assignments of Error 1, 3, and 4

          In mother’s first, third, and fourth assignments of error, she contends that the trial court

erred in granting the close relative adoption when she did not consent to it. Because the trial

court properly found that mother withheld her consent contrary to the child’s best interests, this

Court affirms the trial court’s ruling.

          Code §§ 63.2-1242.1 to -1242.3 govern close relative adoptions, which include “an

adoption by the child’s grandparent[s].” Code § 63.2-1242.1. Close relative adoptions are

divided into two categories: those where the child has continuously resided with or in the home

of the prospective adoptive parents for less than three years, governed by Code § 63.2-1242.2,

and more than three years, governed by Code § 63.2-1242.3. Because B.M.B. has continuously

lived with the grandparents and been in their physical custody for over three years, Code

§ 63.2-1242.3 governs his adoption.

          Code § 63.2-1242.3 dispenses with many ordinary adoption requirements in light of the

child’s extensive time with the prospective adoptive parents. For instance, adoption proceedings

under Code § 63.2-1242.3 originate in the circuit court, the parental placement provisions of the

adoption chapter (Code §§ 63.2-1233 to -1240) do not apply, and the circuit court may forego an

investigation and report as well as omit the probationary period and interlocutory order of

adoption.




                                                   -4-
       Code § 63.2-1242.3 does not, however, eliminate the requirement of parental consent.

See Code § 63.2-1202(A) (“No petition for adoption shall be granted, except as hereinafter

provided in this section, unless written consent to the proposed adoption is filed with the

petition.”). Code § 63.2-1242.1(B) provides for a streamlined consent process for close relative

adoptions, permitting a circuit court to accept a notarized statement of consent rather than the

more onerous methods required in other forms of adoption. The biological father executed such

a statement of consent in this case, but mother did not.

       Code § 63.2-1203(A) provides an avenue for granting an adoption even over a

nonconsenting parent’s objection if the circuit court determines that “consent is withheld

contrary to the best interests of the child as set forth in § 63.2-1205.” “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.

       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
                                                 -5-
               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 eight 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 Va. at 199, 715 S.E.2d at 20. They accordingly “encompass far more than mere

consideration of the child’s best interests as defined in cases involving a contest between natural

parents.” Id. at 200, 715 S.E.2d at 20.

       In this case, mother had not sought court-ordered custody or visitation with B.M.B. since

her release from incarceration. Mother additionally conceded that she was not able to assume

custody of the child. Far from thwarting mother’s efforts to assert her parental rights, the

grandparents actually permitted mother to visit with B.M.B. regularly despite having no legal

obligation to do so. Mother continues to receive treatment and medication for fetal alcohol

syndrome and bi-polar disorder, has problems with crowds, and continues to have her parents

manage her affairs and finances. These facts all indicate that she does not have the ability to care

for B.M.B. In contrast, B.M.B. has “flourish[ed]” while living with the grandparents, who are

able to care for him and reside in a house suitable for raising a child. Finally, a change in

custody from the grandparents would have a detrimental effect on the child because it would

disrupt a stable living arrangement that has existed since he was four months old.

       Based on this evidence, the trial court’s finding that “the best interests of [the] child will

be served by [the] adoption” and that “all applicable statutes have been complied with” was not

plainly wrong or without evidence to support it. Accordingly, this Court affirms the trial court’s

final order of adoption.




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                                        Assignment of Error 2

         Mother also contends that the trial court erred in terminating her parental rights. Code

§ 63.2-1215 explains that an adopted child’s birth parents “shall, by final order of adoption, be

divested of all legal rights and obligations in respect to the child.” Having held that the trial

court properly entered a final order of adoption in favor of the grandparents, this Court

necessarily concludes that the termination of mother’s parental rights regarding B.M.B. as a

consequence of the adoption order was not error.

                                            Attorney Fees

         The grandparents request attorney fees and costs on appeal pursuant to Rule 5A:30(b).

This Court’s decisions regarding attorney fees and costs are discretionary and are based on its

consideration of factors including whether the requesting party prevailed, whether the appeal was

frivolous, whether either party generated unnecessary expense or delay in pursuit of its interests,

as well as “all the equities of the case.” Rule 5A:30(b)(3)-(4); see O’Loughlin v. O’Loughlin, 23

Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). The case at bar was not frivolous, but instead

addressed appropriate issues. Thus, given the equities of this case, this Court declines to award

attorney fees to the grandparents.

                                         III. CONCLUSION

         For the foregoing reasons, this Court affirms the trial court’s order of a close relative

adoption of B.M.B. and accompanying termination of mother’s parental rights regarding the

child.

                                                                                             Affirmed.




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