Shortridge v. Deel
| Decision Date | 21 January 1983 |
| Docket Number | No. 801001,801001 |
| Court | Virginia Supreme Court |
| Parties | Shirley Margaret Ratliff SHORTRIDGE, et al. v. Arlene DEEL, et al. Record |
Keary R. Williams, Grundy (Williams & Gibson, Grundy, on brief), for appellants.
Gilbert K. Davis, McLean (Davis, Gillenwater & Lynch, McLean, on brief), for appellees.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
Arlene Deel and Jerry Deel, her husband, filed their petition in the Juvenile and Domestic Relations Court of Buchanan County to obtain custody of Lawrence Robbie Don Ratliff (Robbie), an infant born May 11, 1977. Shirley Margaret Ratliff (Margaret), the unmarried mother of Robbie, opposed the petition and appealed the order entered on December 13, 1978, awarding custody to the Deels. On December 16, 1978, Margaret married Elbert Shortridge, who had testified at trial that he was Robbie's father.
In February of 1979, the Deels filed their petition in the Circuit Court of Dickenson County for the adoption and change of name of Robbie. By agreement of counsel, appeal of the award of custody was consolidated with the petition for adoption for hearing in the trial court and the transcript of the proceedings in the earlier custody hearing was made a part of the record. The court also heard additional evidence ore tenus and considered reports of the Departments of Social Services of Buchanan and Dickenson Counties and of the Commissioner of Welfare. Shortridge was before the court. The Shortridges, represented by the same attorney, testified in opposition to the Deels' petitions for custody and adoption.
In its order entered March 31, 1980, granting custody to the Deels, the trial court set forth findings that Margaret had voluntarily relinquished Robbie to the Deels shortly after the child's birth, that Shortridge had "relinquished any custodial and parental rights he may have had," and that the best interests and welfare of the child would be served by awarding custody to the Deels. The court found in the same order that Margaret and Shortridge had withheld their consent to Robbie's adoption contrary to the best interests of the child and that under the provisions of Code § 63.1-225, therefore, their consent was not required. The order referred the matter again to the Department of Social Services of Dickenson County and the Commissioner of Welfare for a supplemental report under Code § 63.1-223 before entry of an interlocutory order of adoption under Code § 63.1-226.
On appeal, the Shortridges contend that the trial court erred in granting custody of Robbie to the Deels and in finding that the Shortridges had voluntarily relinquished custody of Robbie and had withheld consent to his adoption by the Deels contrary to the best interests of the child. We will address the award of custody, including the finding of voluntary relinquishment of custody by the natural parents.
We will not review, however, the correctness of the trial court's finding, set forth in the portion of its order pertaining to the petition for adoption, that the natural parents withheld their consent to adoption contrary to the best interests of Robbie. Absent an appealable order in the adoption proceeding we may not determine whether any of the requirements for adoption have been met. The order in this case was not a final or even an interlocutory order of adoption nor was it appealable as an order "[a]djudicating the principles of a cause." Code § 8.01-670(B)(3). The trial court, by deciding that the consent of the natural parents to the adoption was not required, made only one of several determinations necessary for the entry of an order of adoption. See Code §§ 63.1-226, -230. Therefore, the finding made in the adoption proceeding is not yet appealable.
Voluntary relinquishment by a parent of custody of a child must be shown by clear, cogent, and convincing evidence. Szemler v. Clements, 214 Va. 639, 644, 202 S.E.2d 880, 884 (1974); Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). The Juvenile and Domestic Relations Court of Buchanan County, in its order entered December 13, 1978, found that the Deels had carried their burden of proving by the required standard that Margaret, then unmarried, had voluntarily relinquished custody of Robbie. The trial judge, in letter opinions dated December 31, 1979, and March 6, 1980, stated that he concurred in this finding as to Margaret and concluded that Shortridge had also voluntarily relinquished custody when the Deels first obtained Robbie.
In accordance with familiar principles, we will review the evidence in the light most favorable to the Deels, the prevailing parties below. The credibility of witnesses was crucial to the determination of the facts, and the findings of the trial court based upon the judge's evaluation of the testimony of witnesses heard ore tenus are entitled to great weight.
Prior to Robbie's birth, Margaret lived in a mobile home with her two illegitimate daughters, Gail and Shane, ages 12 and 3, respectively, at the time of the first custody hearing in 1978. Margaret was self-employed as a bookkeeper.
Arlene Deel testified that Margaret, early in her pregnancy, asked her to take the baby and she agreed to do so on condition that Margaret would not change her mind and try to take the baby back. When she had been pregnant about six months, Margaret came to the Deels' home and told Arlene that she had the necessary money and was going to have an abortion if Arlene did not want the baby. Arlene reassured Margaret and told her that she could see the baby whenever she wished. Arlene felt that in this conversation she had been responsible for persuading Margaret not to have the abortion. This testimony was contradicted by Margaret, but the trial judge could and apparently did believe Arlene.
There was evidence that the baby, born prematurely, was kept in the hospital for two weeks, during which time Arlene and her daughter, Pam, visited him frequently. When the baby was released from the hospital, Arlene, Pam, and Margaret brought him directly from the hospital to the Deels' home, where he remained almost constantly for 17 months. Pam gave him his principal name. Margaret was permitted by the Deels to see Robbie and to have him visit her in her home. After 17 months, Margaret took the child for a visit and refused to return him to the Deels until five weeks later, when, on the Deels' petition, the juvenile and domestic relations court awarded custody to them. Robbie has remained in the custody of the Deels since December of 1978. They have provided for him a structured family life in a stable environment.
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