                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED



              LARRY ELROD, III
                                                                                MEMORANDUM OPINION*
              v.      Record No. 1892-16-2                                          PER CURIAM
                                                                                    JUNE 13, 2017
              ANASTASIA ALEXANDER AND
               MICHAEL ALEXANDER


                                  FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
                                              S. Anderson Nelson, Judge

                                (Tessie O. Barnes Bacon; Harris, Matthews & Crowder, P.C., on
                                brief), for appellant.

                                (Anastasia Alexander; Michael Alexander, pro se, on brief).


                      Larry Elrod, III appeals an order approving the step-parent adoption of his children.

              Mr. Elrod argues that the trial court “erred in terminating [his] parental rights” because (1) “[t]he

              court did not make a finding that the continuing relationship between the father and the child would

              be detrimental” and (2) Mr. Elrod’s “consent to termination of parental rights was not withheld

              contrary to the child’s best interests.” 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.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND1

       Anastasia Alexander and Mr. Elrod are the biological parents to two children, born in

February 2012 and November 2013. Mrs. Alexander and Mr. Elrod were not married. Mr. Elrod

left Mrs. Alexander and the older child when the older child was approximately one and a half

years old. He was not present for the birth of the younger child, but Michael Alexander was

present.

       Mr. Elrod did not have any further contact with the children, except for a twenty-minute

meeting in a parking lot in Ohio in February 2014. Mrs. Alexander arranged the visit. Mr. Elrod

held the older child, while the younger child remained in the car.

       In March 2014, Mr. Elrod was arrested in Ohio for three felony charges, including illegal

manufacturing of drugs, illegal assembly or possession of chemicals for manufacturing of drugs

committed in the vicinity of a juvenile, and endangering children. Mr. Elrod was sentenced to

prison in September 2014 and has an expected release date of September 14, 2018.2

       Prior to his incarceration, Mr. Elrod’s employer withheld funds for child support. After

his incarceration, Mr. Elrod has supported the older child with $7.50 per month. Aside from a

few items in February 2014 and some items from his mother, Mr. Elrod had not given the

children any gifts or presents. He testified, however, that he sent some letters to the children and

had tried to call, but Mrs. Alexander told him to stop contacting them.

       In November 2014, Mr. Alexander married Mrs. Alexander. Mr. Alexander has acted as

the children’s father, and the children consider him their father. Mrs. Alexander consents to

Mr. Alexander adopting the children.


       1
         Pursuant to Rule 5A:8(c), the record contains a written statement of facts, but no
transcript.
       2
           Mr. Elrod said that he could possibly have an early release date in 2017.

                                                 -2-
       On March 3, 2016, Mr. and Mrs. Alexander filed a petition for a step-parent adoption.

Mr. Elrod did not consent to the adoption. The parties appeared before the circuit court on

August 9, 2016.3 After hearing the evidence and argument, the trial court found that Mr. Elrod’s

consent was being withheld contrary to the best interests of the children. The trial court held that

it was in the children’s best interests to be adopted by Mr. Alexander. By order entered October

25, 2016, the trial court terminated Mr. Elrod’s parental rights and finalized the adoption of the

children. 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

       Mr. Elrod argues that the trial court erred by terminating his parental rights because the trial

court failed to make a finding that a continuing relationship between Mr. Elrod and the children

would be detrimental to the children. Mr. Elrod raises this argument for the first time on appeal.

Therefore, this Court will not consider it. See Ohree v. Commonwealth, 26 Va. App. 299, 308,

494 S.E.2d 484, 488 (1998) (We “will not consider an argument on appeal which was not

presented to the trial court.”); Rule 5A:18.




       3
        Father appeared via video conferencing, but his guardian ad litem was present in the
courtroom.

                                                 -3-
                                       Assignment of error #2

       Mr. Elrod argues that the trial court erred by finding that his consent was withheld

contrary to the best interests of the children. Mr. Elrod contends the evidence did not support the

factors in Code § 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
               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.

       Mr. and Mrs. Alexander presented evidence regarding the factors in Code § 63.2-1205.

Mr. Elrod had not filed any petitions for custody or visitation of the children. Since he was

incarcerated, Mr. Elrod was unable to assume custody and take care of the children. Mr. Elrod

argued that Mrs. Alexander thwarted his efforts to see the children; however, the evidence proved


                                                 -4-
that she was the one who arranged the visitation in February 2014. Mr. Elrod has had no

relationship with the younger child and a very limited relationship with the older child. The

evidence proved that he left Mrs. Alexander and the older child when the child was one and a half

years old. He last saw the child in February 2014. Meanwhile, the evidence proved that

Mr. Alexander was present at the birth of the younger child. Mr. Alexander has acted as the

children’s father, and they consider him their father. Based on all of the evidence, the trial court did

not err in finding that the adoption of the children by Mr. Alexander was in their best interests and

father was withholding consent contrary to the children’s best interests.

                                           CONCLUSION

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

                                                                                             Affirmed.




                                                  -5-
