                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


CHARLES EDWARD REED, III
                                            MEMORANDUM OPINION *
v.   Record No. 0466-01-4                       PER CURIAM
                                              AUGUST 14, 2001
MICHAEL ABBOTT HERSAM AND
 REBECCA ANN HERSAM


              FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                     James W. Haley, Jr., Judge

            (Timothy W. Barbrow, on brief), for
            appellant.

            No brief for appellee Michael Abbott Hersam.

            (Rebecca Ann Hersam, pro se, on brief).


     Charles Edward Reed, III, contends the trial judge erred in

finding that (1) Reed's continued relationship with his

illegitimate child, CJR, would be detrimental to the child; (2)

the adoption of CJR by Michael Hersham was in the child's best

interests; and (3) he unreasonably withheld consent to that

adoption.   Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.    See

Rule 5A:27.




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

     Under familiar principles, we review the evidence on appeal

in the light most favorable to the party who prevailed below,

giving it all reasonable inferences fairly deducible therefrom.

See Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795

(1990).   On January 24, 2001, the trial court conducted a hearing

on Michael and Rebecca Hersam's petition to adopt CJR. 1   Reed,

CJR's biological father, was incarcerated at the time of CJR's

birth and has remained continuously incarcerated since that time.

Rebecca Ann Hersam, nee Rebecca Ann John (mother), gave birth to

CJR on May 26, 1995.   Reed and mother never married.   CJR was six

years old at the time of the hearing.

     Mother testified that she took CJR, who was then less than

one year old, to visit appellant "on a couple of occasions while

he was in a local jail."    Due to the inappropriateness of the

setting and because Reed focused more on mother than CJR, mother

stopped the visitation.    The last visit took place when CJR was

approximately one year old.   Mother acknowledged that Reed had

written letters to CJR; however, she felt that his "references to

criminal activity" were inappropriate for a child.

     William Tignor, Director of the Stafford County Department of

Social Services, investigated the Hersams' petition for adoption,


     1
       The record does not contain a transcript of the hearing;
therefore, we rely on the recitation of facts from the written
statement of facts signed by the trial judge.


                                - 2 -
conducted a home study, and prepared a report that was admitted

into the record.   Tignor found the home clean and well-furnished.

According to Tignor, the Hersams "are wonderful parents, very good

with kids.   They treat their children with love, consideration,

and patience."   CJR is in excellent health and his mental and

emotional development are normal.    He enjoys "a warm and loving

relationship with the [Hersams]."    Mother's husband, Michael

Hersam, "is the only father that [CJR] has known."     Tignor

indicated in his report that CJR "has no knowledge of his

biological father and has no relationship with him."       Moreover, he

reported that Reed has a "violent, possessive personality" and

that the mother was fearful of him.      Based on Reed's

circumstances, Tignor opined that his refusal to consent to the

adoption unreasonably withheld an opportunity for CJR "to have

permanence."   Tignor unequivocally found the Hersams to be

suitable parents for adoption.

     Mother married Michael Hersam (Hersham) on July 27, 1996.

Hersam has been a self-employed truck driver for eleven years.      He

owns his own truck, makes $60,000 per year, and provides health

and life insurance for himself, the mother, CJR and the Hersams'

other three children.   Mother ceased all contact with Reed in 1996

when he advised her of his activities in prison, such as gambling,

taking drugs and joining a gang.    Hersam has supported CJR since

1996, and CJR refers to his stepfather as "Dad."



                                 - 3 -
     Reed testified that he "is serving a 70 year sentence, with

50 years suspended."   The sentences were the result of 1989

convictions involving six burglaries and six larcenies.   He was on

probation when he fathered CJR out of wedlock and when he

committed acts which led to his present incarceration.    He became

eligible for parole in 1997, but has been turned down every year.

On August 17, 2000, Reed was denied parole due to "his serious

disregard for property rights and his previous failure to obey

laws while on probation."   Reed's mandatory release date is August

11, 2007.   A Department of Corrections report admitted at the

hearing indicated that Reed's "anticipated" release dates "are

based on the assumption that [Reed] will continue to earn good

time" and that he will not have "good time" credits deducted "as a

result of misbehavior."   Reed testified that "he suffered from

medical problems which limit his ability to work while

incarcerated and will interfere and hamper his job opportunities

upon his release."

     Reed's father testified that mother "brought [CJR] to his

home for less than 10 visits in 1995" and that he sent small sums

of money to the child on special occasions.

     The trial court found that Reed withheld his consent contrary

to the best interests of CJR and that a continued relationship

would be detrimental to the child's welfare.   The trial court

further found "that no relationship had ever existed between Mr.

Reed and his child due in part to" Reed's criminal activity.

                               - 4 -
                               ANALYSIS

     "An adoption over objection by a natural parent should not

be granted except upon clear and convincing evidence that the

adoption would be in a child's best interest and that it would

be detrimental to continue the natural parent-child

relationship."     Frye v. Spotte, 4 Va. App. 530, 532, 359 S.E.2d

315, 317 (1987).    "The trial court's decision, when based upon

an ore tenus hearing, is entitled to great weight and will not

be disturbed on appeal unless plainly wrong or without evidence

to support it."     Id. at 537, 359 S.E.2d at 319-20.   An adoption

of a child may be ordered without the birth parent's consent "if

that parent's consent to the adoption is being withheld 'contrary

to 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) (citation omitted).

     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

                                 - 5 -
          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
          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.

          "Finding that the continuation of a poor,
          strained or nonexistent parent-child
          relationship will be detrimental to a
          child's future welfare is difficult. No one
          can divine with any assurance the future
          course of human events. Nevertheless, past
          actions and relationships over a meaningful
          period serve as good indicators of what the
          future may be expected to hold. Trial
          courts may, when presented with clear and
          convincing evidence, make an informed and
          rational judgment and determine that the
          continued relationship between a child and a


                               - 6 -
            non-consenting parent will be detrimental to
            the child's welfare."

Linkous v. Kingery, 10 Va. App. 45, 56, 390 S.E.2d 188, 194 (1990)

(quoting Frye, 4 Va. App. at 536, 359 S.E.2d at 319).

     Moreover,

            a child need not be in a desperate situation
            before an adoption may be ordered over the
            natural parent's objection. Each case must
            be carefully considered on its own facts and
            circumstances and a showing of abandonment,
            unfitness or other extreme parental
            misconduct, while significant, does not
            always have to be shown before the adoption
            may be granted without parental consent.

Frye, 4 Va. App. at 536, 359 S.E.2d at 319.

     The evidence supports the trial court's findings that Reed's

continued relationship with CJR would be detrimental to the child,

that the adoption of CJR by Hersam was in the child's best

interest and that Reed unreasonably withheld consent to the

adoption.

     Reed, who has been incarcerated the child's entire life, has

had no relationship with CJR.    Moreover, it was Reed's criminal

activity that thwarted him from seeing CJR and establishing any

relationship.    The child, who was six years old at the time of the

hearing, knows little if anything about Reed and certainly does

not view Reed as his father.    The evidence indicated that Reed has

made inappropriate references in correspondence to CJR and that

Reed has an aggressive personality of which mother is

apprehensive.    Even if Reed is released in 2007, he and CJR, who


                                - 7 -
would be twelve at the time, would be virtual strangers.    Reed's

ability to work and support CJR is limited due to medical

problems.   Meanwhile, CJR lives in a caring and loving environment

with his mother and the only man he has ever identified as his

father.   The Hersams provide CJR with financial and emotional

support, and the child is thriving with the only family he has

ever known.   Accordingly, the judgment of the trial court is

affirmed.

                                                           Affirmed.




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