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REED v. HERSAM


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REED

v.

HERSAM


AUGUST 14, 2001

Record No. 0466-01-4

COURT OF APPEALS OF VIRGINIA

 

Present: Judges Willis, Frank and Clements

 

CHARLES EDWARD REED, III

v.

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).


MEMORANDUM OPINION[1] PER
CURIAM 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.

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.
[2] 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, 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."

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.

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 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 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 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.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

[2]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.

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