Appellants failed to object to the court’s statement that the preponderance of the evidence standard applies in this grandparent adoption proceeding. As a result, the issue cannot be reviewed on appeal. Moreover, the court stated in the adoption order that it used the “clear and convincing” standard to review the matter.
Failure to object
Appellants are the father and mother of two children, M.P. and E. P. “M.P. was born in 2012, and E.P. was born in 2015. Mother and father were married at the time each child was born. Grandparents are mother’s biological parents. …
“In July 2014, due to mother’s substance abuse and father’s incarceration at the time, the Hanover County Juvenile and Domestic Relations District Court (JDR court) awarded joint legal custody of M.P. to mother, father, and grandparents, with supervised visitation to mother and father at the discretion of grandparents.
“In October 2017, the JDR court entered an order requiring mother and father to have visitation with M.P. every other weekend, with the visitations to increase to three weekends per month beginning in December 2017.
“The JDR court also ordered mother, father, and grandparents to participate in family therapy. All parties were ordered to remain drug and alcohol free while in the presence of M.P. Father relapsed, and returned to jail in September 2018 on drug-related charges.
“By December 2018, the JDR court awarded sole legal and physical custody of M.P. to grandparents, with visitation to mother at the discretion of grandparents. The December 2018 order was silent regarding father’s visitation rights but stated that father did not object to the entry of the order.
“As for E.P., the JDR court awarded joint legal and physical custody to grandparents, with visitation to mother and father at the discretion of grandparents, in June and November 2018.”
The grandparents petitioned for adoption. Mother and father opposed the petition. At the adoption hearing, the court inquired of the parties whether the standard of proof was by a preponderance of the evidence. Mother and father did not object and argue on appeal that the court applied an incorrect standard of proof.
“Mother and father argue that the trial court erred by applying a preponderance of the evidence standard, rather than a clear and convincing evidence standard, in determining that mother and father were withholding their consent to the adoption contrary to the best interests of the children[.] …
“[W]e find that this assignment of error is procedurally defaulted. ‘No ruling of the trial court … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.’ …
“During the hearing, the trial court addressed the evidentiary standard on multiple occasions, without any objection raised by mother and father. At the start of the hearing, the court specifically asked the parties if ‘the standard is by a preponderance of the evidence,’ and mother and father did not respond or make any objection.
“Then, when issuing its ruling, the trial court stated that certain facts had ‘been established by a preponderance of the evidence,’ and mother and father still did not raise any objection.
“By failing to make a timely objection, mother and father failed to ‘afford the trial judge a fair opportunity to rule intelligently on [the] objections while there [was] still an opportunity to correct [the] errors in the trial court.’ …
“[E]ven if mother and father had preserved their evidentiary standard argument for appeal, the record shows that the court ultimately applied the correct evidentiary standard to its ruling.
“When issuing its ruling, the trial court stated that ‘the evidence is clear and convincing’ that grandparents’ home was ‘a suitable, stable and safe environment for raising these children’ and also stated that ‘the evidence establishes … by clear and convincing evidence’ that grandparents have ‘not thwarted the efforts of the parents to … assume a proper parental goal. They’ve encouraged it.’
“And, most importantly, in its final order of adoption, the trial court stated that ‘the Court finds, based upon clear and convincing evidence, that the birth parents’ consents are required but are being withheld contrary to the best interests of the children.’”
Best interest factors
“Mother and father argue that the trial court erred in finding that their consent to the adoption was being withheld contrary to the best interests of the children, asserting that the trial court failed to evaluate and properly consider all of the statutory factors enumerated in Code § 63.2-1205.”
The trial court noted that the grandparents had custody for most of the children’s lives and that parents have not sought custody. “The trial court also noted that the children were very young – nine and five – and that ‘the fact that [mother and father] would like to … someday be able to provide for [the children] doesn’t overcome the fact … that [grandparents] are the people who have been doing it.’”
The trial court observed that mother and father’s living arrangement “constituted a proper environment for the children.
“On the other hand, the trial court found that grandparents’ home ‘has been and continues to be both a suitable, stable and safe environment for raising these children.’
“The trial court also noted that father had pending criminal charges that could result in multiple years of incarceration, and mother, ‘when not in a recovery house or a rehabilitation program, [has] been at the mercy of whoever she could find to allow her to live with them.’”
The trial court found that the grandparents encouraged mother and father “to resume their parental duties[.] …
“Lastly, the trial court agreed with the children’s therapist that the effect of changing physical custody from grandparents to mother and father would be ‘emotionally unsettling’ for the children. The trial court found that the children were ‘thriving’ in grandparents’ custody and that ‘it would be detrimental to change their physical custody.’ …
“[W]e hold that the trial court did not err in finding that the adoption was in the children’s best interests and that mother and father had withheld their consent to the adoption contrary to the children’s best interests.”
Pappas v. Van Allen, et al.; Van Allen v. Van Allen, et al., Record Nos. 0957-21-2, 0981-21-2, May 23, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of Hanover County (Harris). Catherine L. Scott for appellant Parker Keefe Pappas. Dana Chenevert, Elizabeth C. Brackins for appellant Jenna Van Allen. Theresa Rhinehart, Christopher K. Peace, Guardian ad litem for the minor children, for appellees. VLW 023-7-182, 10 pp.