Ward v. Faw

• Decision Date: 20 April 1979
• Docket Number: No. 771166,771166
• Citation: 253 S.E.2d 658,219 Va. 1120
• Parties: Jerone Walter WARD v. Johnnie Michael FAW et al. Record
• Court: Virginia Supreme Court

Page 658

253 S.E.2d 658

219 Va. 1120

Jerone Walter WARD v. Johnnie Michael FAW et al.

Record No. 771166.

Supreme Court of Virginia.

April 20, 1979.

John L. Gregory, III, Martinsville (Young, Kiser, Haskins, Mann, Gregory & Young, Ltd., Martinsville, on brief), for appellant.

Ebb H. Williams, III, Hoyett L. Barrow, Jr., Martinsville (Gardner & Gardner, Martinsville, on brief), for appellees.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

Johnnie Michael Faw petitioned the court below for the adoption and change of name of Jerone Walter Ward, Jr. The child was the infant son of Faw's wife, Karen Rebecca Faw, who joined in the petition to indicate her consent to the adoption. Subsequently, the child's natural father, appellant Jerone Walter Ward, filed an objection to the adoption and was allowed to intervene in the proceeding. Following an Ore tenus hearing and a subsequent private interview of the child by the trial judge, the court below, in the April 1977 order appealed from, approved the adoption and change of name, holding, Inter alia, that the consent of the natural father was withheld contrary to the child's best interests. The sole issue on appeal is whether that finding was supported by the evidence.

The chronology sets the stage. The child's natural parents, natives of the Henry County area, were married in December of 1969. Ward had just embarked on a career in the U.S. Army. In April of 1970, the Wards began to have marital problems. The child was born in October of 1970 and lived with his parents at Fort Knox, Kentucky, until December of 1972, when the parties moved back to Henry County because Ward had been ordered to duty in Germany. The evidence showed that because of the parents' marital difficulties, the child became sickly, pale, nervous and insecure. During that period the father was described as being authoritarian and a strict disciplinarian who demonstrated no affection for the child. The father disputed these charges.

Ward went to his new duty station in January of 1973 leaving his wife and child in Henry County. Returning for a two-week leave in September of 1973, Ward saw his son for one day during that period.

In December of 1973, in a divorce suit initiated by the mother, Ward was granted a divorce from bed and board on the ground that she had deserted him on September 3, 1973. The A mensa decree, later merged in September of 1974 into a final decree of divorce from the bond of matrimony, provided that the mother would have custody of the child, that Ward would pay $30.00 per week child support and that he would have reasonable rights of visitation with the child.

In October of 1974, the mother married Faw in Henry County. In February of 1975, Ward married another member of the Army. In February of 1976, he was transferred from duty in Germany and at the time of the hearing was stationed at Ft. Benning, Georgia. This proceeding was filed in September of 1976.

The evidence showed that although the child was adversely affected by the tension resulting from his natural parents' failing marriage, the boy's health improved after the mother married Faw, who provided a stable home for the mother and child. The evidence also revealed that the child became very affectionate toward his stepfather and that, at the time of the hearing in March of 1977, the boy did not know his natural father; the court below found that Ward was "a complete stranger" to his son. Ward, as of the time of the hearing, had not seen his son since the visit with him almost three and one-half years earlier in September of 1973. The evidence was in direct conflict as to why Ward had not visited the boy. The mother maintained that the father made no efforts to see him while the father claimed that his attempts to visit were frustrated by the mother's conduct.

The record also shows that during the period when Ward was separated from his son, he made the child support payments regularly, that he repeatedly mailed greeting cards on Christmas, at birthdays and upon other special occasions, and also forwarded gifts to his son. No acknowledgement of any of these items was ever received by Ward from his son or from the mother.

When asked why he refused to consent to the adoption, Ward testified: "Because I love my son, that's why. And, he is me; he is part of me." On cross-examination, Ward admitted that, in a telephone call from a social worker investigating the case, he earlier had responded to the same question by stating that the boy was his only son and that he wanted his name to be "carried on".

The pertinent statute dealing with a natural father's consent, under the circumstances of this adoption, provided, in part, that if the trial court finds after hearing evidence that the father's consent is withheld contrary to the best interests of the child, the court may grant the petition without such consent. Code § 63.1-225(4) (1977 Cum.Supp.).

Addressing the child's best interests, the trial judge stated in a memorandum opinion incorporated by reference into the final order that:

The Court finds that the subject child is now living in a stable home, has love and care, and the child is a happy, healthy, outgoing, and well adjusted six year old boy. The fitness of the adoptive parents is unquestionable. The Court has considered the finality of adoption as it relates to the natural father. However, since the natural father has not established a familial or custodial relationship with his son, they are strangers at this time. It is unknown as to what type of relationship the natural father and his new wife would have with this child or what relationship the child would have with them, or how...