808 S.E.2d 541 (Va.App. 2017), 0559-17-2, Geouge v. Traylor

Docket Nº:Record 0559-17-2, 0737-17-2
Citation:808 S.E.2d 541, 68 Va.App. 343
Opinion Judge:WESLEY G. RUSSELL, JR., JUDGE.
Party Name:Jocelyn Lee GEOUGE v. Jason Barry TRAYLOR, Dustin Griffith and Tiffany Vadella-Griffith Jocelyn Lee Geouge v. Jason Barry Traylor, Dustin Griffith and Tiffany Vadella-Griffith
Attorney:Anne L. Roddy (Florance Gordon Brown, on brief), for appellant. Colleen M. Quinn, Richmond (Kati K. Dean; Rick Friedman; M. Brooke Teefey, Guardian ad litem for the minor child; Locke & Quinn, PLC; Friedman Law Firm, P.C., on brief), for appellees.
Judge Panel:Present: Chafin, Russell and AtLee, Judges.
Case Date:December 27, 2017
Court:Court of Appeals of Virginia
 
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Page 541

808 S.E.2d 541 (Va.App. 2017)

68 Va.App. 343

Jocelyn Lee GEOUGE

v.

Jason Barry TRAYLOR, Dustin Griffith and Tiffany Vadella-Griffith Jocelyn Lee Geouge Jason Barry Traylor, Dustin Griffith and Tiffany Vadella-Griffith

Nos. 0559-17-2, 0737-17-2

Court of Appeals of Virginia, Richmond

December 27, 2017

Page 542

FROM THE CIRCUIT COURT OF POWHATAN COUNTY, Paul W. Cella, Judge

Anne L. Roddy (FloranceGordonBrown, on brief), for appellant.

Colleen M. Quinn, Richmond (Kati K. Dean; Rick Friedman; M. Brooke Teefey, Guardian ad litem for the minor child; Locke & Quinn, PLC; Friedman Law Firm, P.C., on brief), for appellees.

Present: Judges Chafin, Russell and AtLee

OPINION

WESLEY G. RUSSELL, JR., JUDGE.

In this consolidated appeal, Jocelyn Lee Geouge, biological mother of L.T., challenges two orders of the Powhatan County Circuit Court relating to the placement of L.T. by the child's biological father, Jason Traylor, with Dustin and Tiffany Griffith (" appellees" )1 for their adoption of L.T. Geouge contends the first order erred in ruling, among other things, that the Indian Child Welfare Act (" ICWA" or " the Act" ) did not apply to the proceedings, that Geouge withheld her consent to the placement and adoption of L.T. contrary to the child's best interests, and that legal and physical custody of L.T. would be granted to appellees. Geouge further appeals the subsequent final order of adoption granting appellees' petition for adoption of L.T. For the reasons that follow, we affirm.

Page 543

BACKGROUND

Because the circuit court heard evidence ore tenus, its factual findings are " entitled to the same weight accorded a jury verdict[ ] and ... will not be disturbed on appeal unless plainly wrong or without evidence to support" them. Bristol Dep't of Soc. Servs. v. Welch, 64 Va.App. 34, 44, 764 S.E.2d 284, 289 (2014) (internal quotation marks and citation omitted). Moreover, we review the facts in the light most favorable to appellees, granting them all reasonable inferences that can be drawn from the evidence, because they were the prevailing parties below. See Farley v. Farley, 9 Va.App. 326, 328, 387 S.E.2d 794, 795 (1990). Thus, we must disregard any evidence that conflicts with appellees' evidence. See Garst v. Obenchain, 196 Va. 664, 668, 85 S.E.2d 207, 210 (1955).

So viewed, the evidence establishes that Geouge is the biological mother of L.T., the child who is the subject of this appeal, and four older children, three of whom she shares with Traylor. Geouge was convicted of prescription fraud in late 2013, resulting in a three-year suspended sentence. In March 2014, Geouge again was convicted of prescription fraud. Geouge was sentenced to five years incarceration in the Department of Corrections, with all five years suspended for ten years, conditioned on good behavior. Geouge subsequently was convicted of breaking and entering, several counts of larceny, and illegal possession of drugs, and in February 2015, was sentenced to a total of ten years and sixty months, but the sentencing court suspended all but one year and three months and granted credit for time served. On February 18, 2015, the corrections medical unit informed Geouge was pregnant.

After her release, in June 2015, Geouge was convicted of obtaining drugs using a false name and identify theft to defraud. The court imposed a prison sentence, but suspended all but six months of that sentence.

Based on these convictions, in June 2015, Geouge was found to be in violation of the terms of her suspended sentences. The sentencing court imposed portions of the suspended sentences associated with her prior convictions, but resuspended all but six months of the sentences. In light of her high-risk pregnancy, Geouge was placed on house arrest in July 2015, but she failed a drug screen in September and was reincarcerated, with a release date set for late January 2017.

On October 17, 2015, while serving her sentence, Geouge gave birth to L.T. Although the Fluvanna Department of Social Services (" DSS" or " the Department" ) had tried to work with Geouge to find an appropriate placement prior to L.T.'s birth, when L.T. was discharged from the hospital on October 20, 2015, she had no placement. As a result, L.T. was temporarily entrusted to the Department, who then placed her in a foster home. On October 23, 2015, Traylor informed the Department that he was willing to take the child and raise her with her brothers; he relayed plans that he had made, including his purchases of infant supplies. Because Traylor lived in Powhatan County, the case was transferred to its DSS. Powhatan DSS performed a background check, and, on October 28, 2015, L.T. was released to Traylor. The same day, Traylor unilaterally transferred physical custody of L.T. to appellees.

On October 29, 2015, Powhatan DSS conducted a family partnership meeting to assist the family in identifying needs and services. Traylor was present, and Geouge participated via telephone. Geouge's aunt and grandmother and social workers from Powhatan and Fluvanna DSS and the Department of Corrections also participated. Geouge's addiction to pain medications was discussed. Despite appellees already having physical custody of L.T., Traylor represented that the prior night with L.T. had gone well and noted the availability of his family support system going forward. An action plan was adopted by which L.T. was to remain with Traylor, who was to remain in contact with Geouge, and visitation with Geouge was to be considered once L.T. had been issued a social security number.

On November 2, 2015, Powhatan DSS performed a follow-up visit at Traylor's home to ascertain what services, if any, he might need. L.T. was not at the home; Traylor indicated that she was temporarily at a friend's house to allow him to sort out issues

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with the other children before she returned to the home. Traylor declined any services.

Later in November 2015, Traylor, joined by appellees, filed in the Powhatan County Juvenile and Domestic Relations District Court (" JDR court" ) a " Petition to Accept Consent for Adoption and Transfer Custody" whereby he requested the court to accept his consent for adoption, " accept the consent of [birth mother] or otherwise address her parental rights[,] and transfer custody of [L.T.] to the [adoptive parents, appellees,] to be responsible for the care of the child until such time as ... the Final Order of Adoption is entered."

On December 4, 2015, Geouge, pro se, filed a petition in the JDR court requesting that custody of L.T. be transferred to Geouge's mother or cousin. She further petitioned the court for visitation with her child. On the petitions, Geouge noted L.T.'s race as " Caucasian/Native American." L.T.'s maternal grandmother also filed a petition for visitation. Because Geouge was incarcerated, a guardian ad litem was appointed to represent her.2 A separate guardian was appointed to represent L.T.'s interests.

On January 27, 2016, the JDR court heard Geouge's petition for legal custody and visitation of L.T. Geouge sought weekly visitation to occur at the prison. By order dated March 9, 2016, the JDR court denied the petition. This order was not appealed.

On March 18, 2016, appellees filed in the JDR court a petition for custody and visitation of L.T. On May 16, 2016, Geouge filed a motion to dismiss appellees' petition for custody, asserting that appellees lacked standing and already had custody.

The JDR court conducted a hearing on June 1, 2016, and entered its order on July 6, 2016. The JDR court denied Geouge's motion to dismiss, found that the ICWA and the Servicemembers Civil Relief Act did not apply,3 and accepted Traylor's consent. The JDR court further found that Geouge was objecting to the adoption contrary to L.T.'s best interests and waived the requirement that she consent. The court awarded custody of the child to appellees, " pursuant to their [p]etitions filed under Virginia Code [§ ] 63.2-1230, et seq."

On July 13, 2016, Geouge appealed the JDR court's ruling to the circuit court for a trial de novo . Trial was set for December 15, 2016, but by motion filed September 27, 2016, Geouge sought to continue the matter until after her release from prison in January, " so that she may fully participate in her opposition to the petition." Appellees objected to a continuance, and a hearing on the motion was held on November 8, 2016. Geouge enumerated several ways in which her life circumstances would be changed upon her release from incarceration, including procurement of a driver's license, securing of housing, access to assets, and greater ability to find employment. In denying the motion, the court noted from the bench that Geouge " can present evidence of what her plan is when she gets out, and I can...

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