                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED



              ANGELA M. GREGORY
                                                                              MEMORANDUM OPINION*
              v.     Record No. 0816-15-3                                         PER CURIAM
                                                                                  JULY 19, 2016
              PAMELA S. MARTIN


                                    FROM THE CIRCUIT COURT OF PULASKI COUNTY
                                               Marcus H. Long, Jr., Judge

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

                               No brief for appellee.1


                     Angela M. Gregory (mother) is appealing an order that denied her visitation with her child

              and granted the petition of Pamela S. Martin (the aunt) for leave to file for adoption of the child.

              Mother presents the following assignments of error:

                               1. The Judge of the Pulaski County Circuit Court erred by limiting
                               all of the evidence presented in this case to a time period of
                               October 21, 2010 (the date the Pulaski Juvenile & Domestic
                               Relations District Court entered an order granting Pamela S.
                               Martin custody of [the child] and denying any visitation to Angela
                               M. Gregory) to the date of trial, December 8, 2014. . . .

                               2. The Judge of the Pulaski County Circuit Court erred in his
                               written opinion by writing that that “the child has never had a
                               relationship with the mother or the mother’s other daughters by a
                               prior relationship.”. . .




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       R. Cord Hall, guardian ad litem (GAL) for the minor child, submitted a letter in support
              of the appellee.
                 3. The Judge of the Pulaski County Circuit Court erred by ruling
                 that “there has been no change of circumstance regarding the child
                 since the last Order of October 21, 2010.”. . .

                 4. The Judge of the Pulaski County Circuit Court erred in his
                 written opinion by stating that “the child has virtually no
                 relationship with the mother and never has.”. . .

                 5. The Judge of the Pulaski County Circuit Court erred in his
                 written opinion by stating that “the mother has made little or no
                 effort to see the child. The mother filed a visitation petition the
                 day after she was released from prison. She has made no effort to
                 see or contact the child.”. . .

                 6. The Judge of the Pulaski County Circuit Court erred by stating
                 in his written opinion that “the mother has never been a mother to
                 the child nor had a relationship with the child.”. . .

       Upon reviewing the record and opening brief, we reverse and remand this case to the trial

court for further proceedings consistent with this opinion.

                                          BACKGROUND2

       The child was born in February 2005. She lived with mother for “about a year” before

she went to live with the paternal grandparents. In 2007, the child’s paternal grandmother died.

       Both mother and father had substance abuse problems. In 2009, mother was convicted of

grand larceny, breaking and entering, and grand larceny with the intent to sell. Mother was

incarcerated from April 2009 until February 22, 2011. While incarcerated, mother took several

classes and participated in the Therapeutic Community Program.

       The paternal grandfather and the child moved into the aunt’s home on September 16,

2010. The aunt petitioned for custody of the child. On October 21, 2010, the Pulaski County

Juvenile and Domestic Relations District Court (the JDR court) awarded custody of the child to

the aunt and held that mother would have no visitation. Mother was incarcerated at the time.




       2
           Pursuant to Rule 5A:8, the record contains a written statement of facts, but no transcript.

                                                 -2-
       In January 2011, the aunt filed a petition for consent to proposed adoption. The child’s

father gave his consent for the aunt to adopt the child.3 On February 23, 2011, the day after she

was released from prison, mother filed a motion to amend visitation. On May 9, 2011, the JDR

court denied mother’s motion for visitation and held that her consent to the adoption was

withheld contrary to the child’s best interests. The JDR court granted leave to the aunt to file for

adoption. The mother appealed the JDR court rulings.

       On the morning of September 16, 2011, a hearing was held in the Pulaski County Circuit

Court before the Honorable Colin R. Gibb. Before mother could present all of her evidence,

Judge Gibb stated that he needed to suspend the hearing because he had to hear another case that

afternoon in Montgomery County Circuit Court. The trial court denied requests for mother to be

allowed to visit with the child. The trial was delayed until July 23, 2013, when the parties again

appeared before the trial court to present their case. On February 11, 2014, the trial court entered

an order that denied mother’s motion for visitation and found that mother unreasonably withheld

her consent to the aunt’s petition for leave to proceed with the adoption.

       Mother appealed the February 11, 2014 order, and this Court reversed and remanded the

matter. The Court held that the trial court denied mother a de novo trial and violated her due

process rights. Gregory v. Martin, No. 0431-14-3, 2014 Va. App. LEXIS 312 (Va. Ct. App.

Sept. 16, 2014).

       On December 8, 2014, the parties appeared before the trial court for a new trial. The

maternal grandmother testified that mother’s family had regular visitation with the child in the

past. The trial court limited the testimony to events that occurred after October 21, 2010, the

date of the JDR custody order.




       3
           The aunt is the father’s sister.
                                                -3-
        Mother testified about her situation and explained the positive steps she has taken while

she was incarcerated and since she has been released from prison. She had passed all of her drug

screens, found full-time employment, and cooperated with her probation officer. She was

released from probation while the prior appeal was pending in this Court. Since her release from

prison in 2011, mother obtained her driver’s license and started visiting with her older two

children, the half-sisters of the child in this case. At the time of the hearing, the two older

children were placed with mother full-time, and she had an upcoming custody hearing, at which

she expected to receive full custody. Mother requested that she be allowed to visit with the child

in this case.

        The paternal grandfather testified. He said that the child had lived with him for most of

her life, but she lived with mother for “about a year” before she started living with him and his

wife. The trial court would not allow counsel to ask the paternal grandfather any further

questions about the year that the child lived with mother because it occurred prior to October 21,

2010.

        The aunt testified as to how long the child had been living with her. The aunt explained

that the last time that the child visited with the mother’s family was December 22, 2010 through

December 24, 2010. The aunt did not want the child to have contact with mother (or father).

        The GAL recommended that mother’s motion to amend visitation be denied and the

aunt’s petition for leave to proceed with the adoption be granted. The GAL acknowledged that

mother had done very well since she was released from prison. However, he thought it would be

“very detrimental” to the child if “she were required to ‘start a relationship’ with [mother].” The

GAL did not think that mother ever had a relationship with the child.

        In response to the GAL’s statement, mother’s attorney tried to explain that mother did

have a relationship with the child and pointed to the paternal grandfather’s testimony that the

                                                 -4-
child lived with mother for approximately one year. The trial court again stated that it would not

accept any evidence prior to October 21, 2010. Mother’s counsel also argued that there was no

expert testimony that it would be “detrimental” for the child to have a relationship with mother.

       The aunt’s counsel argued that the child was doing well and that the child never had a

relationship with mother.

       On February 2, 2015, the trial court issued a letter opinion. The trial court ruled that

there was no change of circumstances since the October 21, 2010 order, and it was not in the best

interests of the child to modify the October 21, 2010 order. The trial court acknowledged that

mother “made strides to improve herself;” however, it also noted that mother “had serious drug

problems that led to her incarceration.” The trial court also found that mother had “made no

effort to visit the child except to file the Motion to Amend,” which she did on the day after she

was released from prison. The trial court noted that mother had not paid any child support or

sent presents or letters to the child. The trial court ruled that the child was thriving and doing

well with the aunt.

       The trial court stated, “The circumstances have changed in the mother’s life and she is to

be commended. These circumstances have had little or no impact on the child, however. The

mother has had little, if any, contact with the child since she was born.” The trial court then

reviewed the Code § 20-124.3 factors. The trial court concluded, “The Court finds that the child

is in a good place. The mother has not been involved in the child’s life. The mother appears to

be doing well but still there is some doubt about her drug problems and choice of surroundings

and people.”4




       4
          Although there was no information in the written statement of facts, the trial court’s
letter opinion referred to a man living with mother. The trial court expressed concern that the
man had drug convictions.
                                               -5-
          The trial court reviewed the factors in Code §§ 63.2-1205 and -1208. It held that

mother’s consent to the adoption was being withheld contrary to the child’s best interests. On

May 8, 2015, the trial court entered the final order. This appeal followed.

                                               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) (citations

omitted).

                                          Assignment of error #1

          Mother argues that the trial court erred by excluding evidence prior to October 21, 2010

because Code § 63.2-1205 states that the judge is required to consider the “quality of any previous

relationship between the birth parent and the child.”5 In response to this factor, the trial court found

that the “child has never had a relationship with the mother or the mother’s other daughters by a

prior relationship.” Mother further contends her due process rights were violated because the trial

court did not consider any evidence of her relationship with the child since the child’s birth.

          “[T]he relationship between a parent and child is constitutionally protected by the Due

Process Clause of the Fourteenth Amendment.” Copeland v. Todd, 282 Va. 183, 198, 715 S.E.2d

11, 19 (2011) (citing Quilloin v. Walcott, 434 U.S. 246, 255 (1978)). The Supreme Court of the

United States has characterized a parent’s right to raise his or her child as “perhaps the oldest of the

fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65

(2000).


          5
          Although mother did not object to the trial court’s ruling until she noted her objections on
the final order, her arguments were preserved. See Lee v. Lee, 12 Va. App. 512, 516, 404 S.E.2d
736, 738 (1991) (en banc) (“[C]ounsel may, if he or she has previously failed to do so, include an
objection and reasons therefor in the final order or at least tender such an order to the trial judge.”).

                                                    -6-
       “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, 282 Va. at 197, 715 S.E.2d at 19 (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
               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 trial court made the following findings with respect to Code § 63.2-1205:

               The mother has not made any effort to obtain or maintain legal and
               physical custody of the child. The mother has not stated that she is
               willing and able to assume full custody of the child. There was no
               evidence the mother’s efforts to assert parental rights were
               thwarted by other people. The mother has made no efforts to
               assert her parental rights other than to file the Motion to Amend
               visitation. The mother did not put on any evidence regarding her
               ability to care for the child. The child is nine (9) years old and will
               be ten (10) on February 28, 2015. The child has never had a
               relationship with the mother or the mother’s other daughters by a
               prior relationship. The child has been in the present custodial
               relationship since October 21, 2010. The present custodial
               environment of the child is excellent. The child is in a warm,
               stable home and her needs are more than met. A change of
               physical custody of this child would be traumatic for the child.


                                                -7-
        The trial court would not allow mother to present any evidence prior to October 21, 2010,

but it concluded that the child did not have a relationship with her. The trial court may be correct

that the child did not have a relationship with mother at the time of the hearing. However, without

knowing about mother’s relationship with the child from birth until October 21, 2010, the trial court

erred by concluding that the child never had a relationship with mother. According to the statutory

language in Code § 63.2-1205, the trial court erred by not allowing mother to present evidence

regarding her relationship with the child.

        The GAL argues that any error by the trial court would be harmless because mother did not

improve her situation until after she was released from incarceration. The record does not contain

enough information to determine whether the error is harmless because the trial court would not

allow mother to discuss her relationship with her child prior to October 21, 2010. Therefore, we

cannot address this argument.

                                      Assignments of error # 2-6

        Mother also objects to the trial court’s various findings that she did not have a relationship

with the child. As noted above, mother was not allowed to present any evidence of her prior

relationship with the child.

        The trial court held that there was no material change of circumstances since October 21,

2010. “Whether a change of circumstances exists is a factual finding that will not be disturbed on

appeal if the finding is supported by credible evidence.” Visikides v. Derr, 3 Va. App. 69, 70, 348

S.E.2d 40, 41 (1986) (citing Moyer v. Moyer, 206 Va. 899, 904, 147 S.E.2d 148, 152 (1966)).

        At the time of the October 21, 2010 court order, mother was incarcerated. Since that time,

she was released from prison and presented evidence that she was drug-free, had full-time

employment, and had housing. The trial court acknowledged that mother’s situation improved.




                                                  -8-
Based on the evidence, the trial court erred in concluding that there was no change of

circumstances.

        However, the Supreme Court of Virginia has held that “despite changes in circumstances,

there can be no change in custody [or visitation] unless such change will be in the best interests of

the children.” Keel v. Keel, 225 Va. 606, 612, 303 S.E.2d 917, 921 (1983).

        The trial court reviewed the Code § 20-124.3 factors and concluded that it was not in the

child’s best interests to modify the October 21, 2010 order. However, in light of our rulings, we

remand the case for the trial court to reconsider the child’s best interests.

                                            CONCLUSION

        For the foregoing reasons, we reverse and remand for further proceedings consistent with

this opinion.

                                                                                Reversed and remanded.




                                                   -9-
