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CAV: Adoption affirmed, despite parents’ objection

A young child’s great aunt successfully petitioned to adopt the child, showing that the biological mother’s past violence, drug abuse, and mental health problems demonstrated that she withheld consent against the child’s best interests.


Appellant Tina Tolley’s child was born in 2010. Both mother and child then lived with Appellee Terry Tolley, Tina’s aunt (and thus the child’s great-aunt).

In 2013, the Spotsylvania Juvenile and Domestic Relations Court granted Tina and Terry joint legal custody of the child and granted Terry primary physical custody. During the custody litigation, Tina’s mother provided a sworn statement that Tina had a mental condition that makes her uncontrollably violent at times, that Tina consistently fails to follow through with treatment, and that Tina had a problem with the abuse of prescription drugs. While she lived with Terry, Tina would sometimes leave for a week or two at a time to live with friends or boyfriends and then return to Terry’s home when convenient. The J&DR court’s custody order stated that Tina must begin counseling and psychiatric appointments and take all medication as prescribed.

By December 2013, Tina’s relationship with Terry and the child had deteriorated, and the J&DR court barred Tina from having any contact with them. Nevertheless, in March 2014, Tina approached Terry in Terry’s backyard, where the child and four other children were playing, and stabbed Terry in the head from behind. When Terry turned around, Tina stabbed her again. When Terry ran into her kitchen, Tina chased her and began hitting Terry with a coffee pot. Blood was all over the kitchen. The child, then only three-and-a-half years old, witnessed the entire incident and police response. She was later diagnosed with PTSD and had a fear of the color red, knives, and anyone in a uniform. She has had no contact with Tina since the day of the crime.

In April 2015, Terry petitioned the circuit court for leave to adopt the child, to which Tina did not consent. The circuit court entered a final order of adoption, finding that Tina’s consent was withheld contrary to the best interest of the child. Tina appealed.

Child’s best interest

The circuit court observed that even from birth there were periods where Tina was only minimally involved in the child’s care. In 2013, she voluntarily relinquished sole legal custody of the child and shared legal custody with Terry. At the time of the hearing on Terry’s adoption petition, Tina was unable to assume full custody of the child because she still had more than a year and a half of her penitentiary sentence to serve. Tina herself conceded that, once she was finished serving her sentence, she should not have full custody of the child immediately upon her release.

This court agrees with the circuit court’s conclusion that there was no evidence that either Tina’s or the father’s efforts to assert parental rights were thwarted by Terry or others. Tina’s ability to care for the child was compromised by her history of untreated mental health problems, continuing drug abuse, absence from the home, and violent behavior in the child’s presence. The evidence supports the circuit court’s finding that Tina’s “past behavior suggests that she is unable to sustain an appropriate level of care” for the child or herself.

The child herself was six years old at the time of the hearing. She has never lived anywhere but at Terry’s home. The circuit court found that, since the child’s birth, Terry had provided a safe and stable environment, and it would be “extremely detrimental to the child’s well-being to sever or diminish Terry’s relationship with the child or for the child to reinitiate” a parental relationship with Tina. This conclusion was supported by testimony from the child’s counselor and psychologist.

Accordingly, even in light of the fundamental liberty interest of parents in the care, custody, and control of their children, the record in this case supports the circuit court’s conclusion that Tina withheld her consent to adoption contrary to the best interest of the child.

Failure to visit

Although the circuit court’s letter opinion addresses Tina’s failure to visit the child during her incarceration, the adoption order doesn’t mention it. Instead, the order states that “consent is being withheld contrary to the best interest of the child, and that upon consideration of the statutory factors enumerated in Code § 63.2-1205, the court finds that the entry of an order of adoption serves the best interest of the child as is proper at this time.”

Even if the trial court had provided failure to visit as alternative grounds justifying its adoption order, this court need not address whether Tina’s failure to visit the child while incarcerated obviated the need for her consent to adoption. When a trial court renders its judgment on alternative grounds, this court need only consider whether any one of the alternatives is sufficient to sustain the judgment. If so, others need not be addressed. Here, the court has already affirmed the conclusion that consent was withheld contrary to the best interests of the child.


Tolley v. Tolley, Record No. 0913-17-2, Mar. 20, 2018. CAV (AtLee), from Spotsylvania Cir. Ct. (Ellis). James Joseph Ilijevich for Appellant; Carolyn S. Seklii for Appellee. VLW No. 018-7-063, 8 pp.

VLW 018-7-063

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