Harvey v. Flockhart
| Decision Date | 11 August 2015 |
| Docket Number | Record No. 1694–14–4. |
| Citation | 775 S.E.2d 427,65 Va.App. 131 |
| Parties | Jeffery HARVEY and Teresa Harvey v. David FLOCKHART and Rhonalee Flockhart. |
| Court | Virginia Court of Appeals |
Shelly R. James (Law Office of Shelly R. James, PLLC, on briefs), Harrisonburg, for appellants.
Kelly C. Ashby (Law Office of Kelly C. Ashby, P.C., on brief), for appellees.
Present: BEALES, McCULLOUGH and O'BRIEN, JJ.
Jeffery and Teresa Harvey, the biological grandparents of S.H. and J.H., appeal from an order granting a petition for adoption of these children to David and Rhonalee Flockhart. The Harveys contend that the circuit court erred in (1) considering a custody and visitation appeal from juvenile and domestic relations district court when the notice of appeal was not timely filed; (2) denying the Harveys' motion for a continuance; (3) granting the adoption; (4) finding that the adoption served the children's best interests; and (5) terminating the Harveys' visitation rights. We find no error and affirm.
On January 6, 2011, the Flockharts received custody of S.H. and J.H. through a Shenandoah County Department of Social Services foster placement. S.H. was approximately one and a half years old, and J.H. was approximately six months old. After the natural parents' rights were terminated, the Flockharts and the Harveys cross-petitioned the Shenandoah County Circuit Court for custody. By order dated October 17, 2012, the court awarded the Flockharts legal and physical custody of S.H. and J.H. It denied the Harveys' petition for custody but awarded them visitation.
On November 14, 2012, the Flockharts filed a petition for adoption in the Frederick County Circuit Court. The court granted that petition by final order dated February 13, 2013. The Harveys moved to vacate that order on the ground that they had not received notice of the adoption proceedings. The court granted their motion. The court scheduled a hearing on the Flockharts' petition and allowed the Harveys to intervene and participate.
On April 7, 2014, the Frederick County Department of Social Services completed the report of its investigation in connection with the Flockharts' petition for adoption. On May 20, 2014, the Department filed an addendum to the report. The addendum noted that an anonymous complaint—the anonymous complainant, it turns out, was Mrs. Harvey—to County building officials had yielded information that the children were sleeping in a basement. This basement lacked a door to the outside and had no window access to the exterior. In response, the Flockharts moved the children to bedrooms on the main floor of the home. Each child began to sleep in his or her own bed and had adequate space for clothing and other belongings. Each room was equipped with a smoke detector. The addendum noted that the Flockharts had filed for a permit to construct a bedroom in the basement, and the application was pending. The addendum also mentioned the building inspector's discovery of “improper grounding of the [swimming-]pool motor and violations with the pool gate.”
The pool gate was neither self-closing nor self-locking. The building inspector required the Flockharts to place a lock on the gate until this problem was resolved. According to the addendum, the Flockharts had remedied these issues. The addendum concluded, “As of May 19, 2014, there are no violations noted in the Frederick County Health's Department file for this residence.”
On May 23, 2014, the Harveys requested a continuance to allow them more time to investigate the addendum and its implications. The court denied the motion.
At a hearing on May 27, 2014, the court heard evidence on S.H.'s and J.H.'s relationships with the Flockharts and the Harveys, respectively, and on interaction between the Harveys and the Flockharts. The Flockharts described their love for S.H. and J.H. Likewise, the Harveys and their witnesses testified to the Harveys' loving relationship with the children and to the fact that the children enjoy spending time with their grandparents. The Flockharts, the Harveys, and other witnesses testified to the tension, lack of trust, and even hostility between the Flockharts and the Harveys. It became clear from the testimony presented that the Harveys do not view the Flockharts as the children's parents and this mindset taints the interaction between them and the Harveys. The Flockharts explained that the visitation was having an adverse effect on the children and on the family unit.
The court also heard testimony concerning the Flockharts' living arrangements. The Flockharts reside in a 2000–square–foot ranch home with a basement. The home belongs to Mrs. Flockhart's parents, the Russells. Eleven people reside there: the Flockharts, Mrs. Flockhart's parents, her grandparents (also Russells), and five children. S.H., J.H., and the three other children were born to the same mother. The home has three upstairs bedrooms and a basement. The basement is not completely finished. The basement has some windows, but they are not suitable for escape in the event of fire, and there is no door to the outside. The Flockharts applied for a building permit to allow for basement ingress and egress. Mrs. Harvey acknowledged that she was the one who contacted building officials about the Flockharts' home and building permit.
The Flockharts moved into the Russells' home after selling their first home, which they had outgrown. They planned to save their money to build or buy a larger home within two years. Mrs. Flockhart's grandparents sleep in one bedroom, the boys in a second bedroom, and the girls in a third bedroom. The Flockharts sleep in a downstairs living area, and Mrs. Flockhart's parents sleep in a separate living area, also downstairs.
Mrs. Flockhart explained that, when the pool is not operational, the ground wire is not attached to the pump, and the electricity is turned off. When the pool is operational, the ground wire is reattached to the pump.
Dawn Welch, a licensed clinical social worker, testified at the hearing. The Flockharts brought S.H. and J.H. to her based on “some behaviors that were occurring within their home.” Welch observed the two children about seventeen times. She testified that the two are “very bonded” and love the Flockharts “very much.” According to Welch, S.H. and J.H. do not want to go to visitation with the Harveys, and they experience confusion “about what they're told [at the Harveys'] versus when they're home.” Welch said that S.H., J.H., and their siblings She expressed concern that the visitation triggered “[l]ots of anxiety” in S.H. and J.H. and, for one of them, some “regressive behaviors.” She did not have any contact with the Harveys and, therefore, did not observe the Harveys interact with S.H. and J.H.
Following the hearing, the court prepared a memorandum containing thorough findings of fact and conclusions of law. Among other things, the circuit court found that “[t]he parties are unable to cooperate in and resolve disputes regarding the children, in part, because the Harveys refuse to recognize the Flockharts as the parents of the children....” The court granted the Flockharts' petition for adoption by order entered August 13, 2014.
The Harveys' first assignment of error is that the circuit court lacked jurisdiction to address the Harveys' visitation. They contend that the Flockharts did not timely appeal the juvenile court's order awarding the Harveys visitation. The Frederick County Juvenile and Domestic Relations District Court entered an order on March 18, 2014, affirming the 2012 custody and visitation order. The March 18, 2014 order was not appealed until April 29, 2014.
This jurisdictional issue is one of law and, therefore, we review the circuit court's conclusion de novo. See Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001). Under Code § 16.1–296(A), “an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction....” It is well established that an untimely appeal from juvenile court to circuit court results in dismissal of the appeal. See Congdon v. Commonwealth, 57 Va.App. 692, 695–96, 705 S.E.2d 526, 528 (2011).
Code § 63.2–1215. This language is plain and unambiguous.
The Harveys are the biological grandparents of S.H. and J.H. The Flockharts adopted S.H. and J.H. Entry of the final order of adoption divested the Harveys of “all legal rights and obligations in respect to the child[ren],” which includes visitation.
Id. The final order of adoption superseded any preexisting visitation order entered by the juvenile court. The Flockharts' petition for adoption necessarily implied a question of the Harveys' ongoing visitation respecting S.H. and J.H., and there is no question of the court's jurisdiction to entertain the petition. See Code §§ 16.1–244, 63.2–1201. Therefore, the untimely appeal of the juvenile court's order is immaterial here.
We acknowledge the holding in Thrift v. Baldwin, 23 Va.App. 18, 20, 473 S.E.2d 715, 716 (1996), where we held that biological grandparents constituted “persons of interest” who could petition the court for visitation. Even though an adoption order “extinguished [their] legal grandparental ... relationship,” their legitimate interest owed to the continuing “blood...
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