                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


KENNETH PETERS, JR.
                                            MEMORANDUM OPINION *
v.   Record No. 2901-98-4                       PER CURIAM
                                               JUNE 22, 1999
JAMES HAGERMAN AND
 DETRA HAGERMAN


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      Richard B. Potter, Judge

           (John J. Wall; Farrell & Croft, P.C., on
           brief), for appellant.

           (Robert H. Klima, on brief), for appellees.


     Finding that Kenneth Peters, Jr. withheld his consent to the

adoption of his biological child contrary to the best interests of

the child, the trial judge ordered that James and Detra Hagerman

are authorized to proceed with their petition to adopt the child.

Peters contends that the trial judge erred by (1) admitting into

evidence a home study report; (2) finding that clear and

convincing evidence proved that the Hagermans did not thwart

Peters' contact with the child, that Peters' continued

relationship with the child was detrimental, and that removal of

the child from the Hagermans' home would be harmful to the child;

(3) referring to the record of the juvenile and domestic relations


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
district court while hearing the matter de novo; and (4) finding

that Peters was properly before the trial court.   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.

     This matter initially was commenced in the juvenile and

domestic relations district court where an order was entered

deciding various issues concerning the custody of the child.

Peters appealed to the circuit court only the ruling that his

consent to adoption of the child by the Hagermans was withheld

contrary to the best interest of the child.

     The evidence was received during an ore tenus hearing in

the circuit court.    Peters was incarcerated at the time of the

hearing and was represented by a guardian ad litem.     The record

on appeal includes the written statement of facts submitted by

Peters, as corrected and supplemented by the trial judge.

          "In matters of a child's welfare, trial
          courts are vested with broad discretion in
          making the decisions necessary to guard and
          to foster a child's best interests." The
          trial court's judgment, "when based on
          evidence heard ore tenus, will not be
          disturbed on appeal unless plainly wrong or
          without evidence to support it."

Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,

409 S.E.2d 460, 463 (1991) (citations omitted).




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                              Issue One

     Peters contends that the home study report prepared by

Bethany Christian Services was inadmissible hearsay and that the

trial judge erred by admitting it into evidence.   Code

§ 63.1-220.3 specifies procedures that are required in cases of

adoption when a parent has placed his or her child directly with

the prospective adoptive parents.   Code § 63.1-220.3(B)(6)

requires that a "licensed or duly authorized child-placing

agency" conduct a home study of the prospective adoptive home

and that the agency "provid[e] to the court a report of such

home study, which shall contain the agency's recommendation

regarding the suitability of the placement."   Thus, the statute

specifically authorized and required that a home study report be

filed with the trial court.   The report prepared by Bethany

Christian Services was filed pursuant to that statute.

Therefore, Peters' hearsay objection to the admission of the

home study report is without merit.

                              Issue Two

     Peters contends that the trial judge erred in ruling that

clear and convincing evidence demonstrated that he was

withholding his consent contrary to the best interests of the

child.   We disagree.

     "Adoption of a child may be ordered without the consent of

the child's birth parent if that parent's consent to the


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adoption is being withheld 'contrary to the best interests of

the child as set forth in [Code] § 63.1-225.1.'"   Hickman v.

Futty, 25 Va. App. 420, 426, 489 S.E.2d 232, 234 (1997) (citing

Code § 63.1-225(F)).   Code § 63.1-225.1 provides, in pertinent

part, as follows:

          In determining whether the valid consent of
          any person whose consent is required is
          withheld contrary to the best interests of
          the child, . . . the court shall consider
          whether the failure to grant the petition
          for adoption would be detrimental to the
          child. In determining whether the failure
          to grant the petition would be detrimental
          to the child, the 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)' 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.

Under the statute, "not only must the prospective adoptive

placement serve the child's best interests, but the continued

relationship with the non-consenting parent must prove to be

detrimental."   Hickman, 25 Va. App. at 431, 489 S.E.2d at 237.

Applying this standard, we have held as follows:

          Detriment is determined, as it was under the
          prior case law, by considering the
          non-consenting parent's fitness, or ability,
          to parent the child as well as the

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            relationship the non-consenting parent
            maintains with the child and other children,
            if any. That relationship, as it was under
            the prior case law, is evaluated in terms of
            the non-consenting parent's willingness to
            provide for the child, that parent's record
            of asserting parental rights, taking into
            consideration the extent to which, if any,
            such efforts were thwarted by other people,
            and the quality of the parent-child
            relationship.

Id. at 431-32, 489 S.E.2d at 237.

     The trial judge reviewed the evidence pursuant to the

statutory factors.   The uncontested evidence established that

Peters was incarcerated on state and federal drug and gun

charges before the child's birth.   He has been sentenced to

incarceration in prison for a period of forty-seven years.

According to the testimony of Peters' mother, Peters planned for

the child to live with her and her husband until his release

from prison.   His mother testified that Peters had a good

relationship with his two other children.   The trial judge was

entitled to place little weight on the testimony of Peters'

mother.   Indeed, the evidence proved that at the time of the

hearing, Peters did not have custody of either of his other two

children.   It was undisputed that the child whose adoption was

pending had no relationship with Peters or his other children.

     While Peters contended that the prospective adoptive

parents thwarted his relationship with the child, the trial

judge found no evidence to support that contention.   The


                                - 5 -
Hagermans admitted that they did not seek out Peters or attempt

to initiate contact with him or keep him informed concerning the

child's life.   The failure to take affirmative action to

establish a relationship which the prospective adoptive parents

viewed as not in the child's best interests is not the same as

affirmatively erecting barriers to keep Peters away from the

child.   No evidence indicated that the Hagermans barred Peters

from contact with the child.   The evidence proved Peters was

incarcerated in Texas.   Thus, Peters' inability to see the child

and parent him was a result of his own actions, not that of the

Hagermans.   We hold that the evidence supported the trial

court's finding that clear and convincing evidence proved the

Hagermans did not thwart Peters' relationship with the child.

     Peters was not in a position at the time of the hearing or

in the immediate future to have custody of or to provide support

for any of his children.   On the other hand, the evidence

indicated that the prospective adoptive parents had established

a loving relationship with the child and had both the emotional

and physical ability to provide the child with a good home.     The

trial judge's finding that Peters withheld consent to the

adoption contrary to the child's best interests was supported by

the evidence.

     Peters contends the trial judge's ruling amounted to a

finding that an incarcerated father who objects to the adoption


                               - 6 -
of his child withholds his consent, as a matter of law, contrary

to the child's best interests.    We find no basis for that

contention.   Each case must be determined based upon its unique

facts.   The trial judge decided this case based solely on the

current circumstances of the adoptive parents compared with

those of Peters, who as an unmarried father sentenced to over

thirty years in prison has never seen the child whose adoption

is pending and who cannot realistically provide physical custody

or support for an undetermined number of years.    See generally

Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.

333, 417 S.E.2d 1 (1992).

                             Issue Three

     Peters contends the trial judge committed reversible error

by accepting into evidence the home study report initially

submitted to the district court.    He alleges that this action

demonstrated that the trial judge failed to conduct a hearing de

novo.

     Nothing in the record indicates that the trial judge

improperly deferred to the finding of the juvenile court or

otherwise failed to require proof meeting the standard of clear

and convincing evidence.    We note that this appeal concerned

only one of several issues decided by the juvenile court.     The

unappealed rulings of the juvenile court were final and binding

on the parties.   Furthermore, as noted above, the trial judge


                                 - 7 -
did not err by accepting into evidence the home study report

required by law to be submitted to the trial court.

                             Issue Four

       Peters also contends that the trial judge lacked

jurisdiction because he was not present at the hearing.    Peters

concedes that he was represented by a guardian ad litem.

Furthermore, he cites no authority for his assertion that

representation by a guardian ad litem was "separate and distinct

from [Peters'] 'opportunity to appear before the court,'" and we

find no support for that assertion in either statutory or case

law.    See generally Code §§ 8.01-2 and 8.01-9.

       Accordingly, the decision of the circuit court is summarily

affirmed.

                                                          Affirmed.




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