Jeffery Harvey and Teresa Harvey v. David Flockhart and Rhonalee Flockhart
775 S.E.2d 427
Va. Ct. App.2015Background
- Siblings S.H. and J.H. were placed with David and Rhonalee Flockhart as foster children in 2011; parental rights were later terminated. The Flockharts and grandparents Jeffery and Teresa Harvey each sought custody; a 2012 Shenandoah County order awarded custody to the Flockharts and visitation to the Harveys.
- The Flockharts filed for adoption in Frederick County in November 2012; a 2013 adoption order was entered but later vacated after the Harveys moved to set it aside for lack of notice. The adoption petition was re-litigated with the Harveys allowed to intervene.
- A Frederick County DSS investigation (April–May 2014) included an addendum prompted by an anonymous complaint (later revealed to be Mrs. Harvey) about the children sleeping in a basement and minor pool safety/grounding issues; DSS ultimately found no outstanding health-code violations.
- At a May 27, 2014 hearing, evidence showed the children were bonded to the Flockharts, were doing well, and were confused/anxious about grandparent visitation; testimony also revealed ongoing tension and lack of cooperation between the Harveys and the Flockharts.
- The circuit court denied the Harveys’ request for a continuance, held the adoption complied with statutory requirements, found adoption served the children’s best interests, entered a final adoption order on August 13, 2014, and held that the adoption divested the Harveys of visitation rights by operation of law.
Issues
| Issue | Plaintiff's Argument (Harveys) | Defendant's Argument (Flockharts) | Held |
|---|---|---|---|
| Jurisdiction/Timeliness of appeal re: juvenile court visitation | The juvenile-court visitation order was not timely appealed to circuit court, so circuit court lacked authority to terminate visitation | Adoption proceeding falls within circuit court jurisdiction and a final adoption order divests grandparents of visitation by statute, making the untimely appeal immaterial | Court held adoption statute divested grandparents of visitation rights; circuit court had jurisdiction to resolve adoption and its effect on visitation |
| Denial of continuance | Addendum filed one week before trial raised new safety concerns requiring more time to investigate and prepare | Addendum was brief, not complex; case pending long time; Harveys had opportunity to cross-examine and were not prejudiced | Denial was within trial court’s discretion; no abuse of discretion or prejudice shown |
| Statutory basis for adoption (were Flockharts eligible) | Flockharts ceased to be “foster parents” when they obtained custody, so Code §63.2-1229 (foster-parent adoption) does not apply | The Flockharts remained foster parents for §63.2-1229 purposes; the statute and plain definitions allow adoption by foster parents who have cared for the child | Court held §63.2-1229 applied and adoption complied with statutory procedures |
| Best interests and termination of grandparent visitation | Adoption is not in children’s best interests; DSS report/addendum undermined recommendation; Harveys’ relationship warrants continued visitation | Children are bonded to Flockharts; ongoing hostility and inability to cooperate with Harveys harms family stability; DSS recommended adoption | Court found ample evidence adoption served the children’s best interests; adoption terminated Harveys’ visitation by operation of law |
Key Cases Cited
- Thrift v. Baldwin, 23 Va. App. 18 (1996) (previously recognized grandparents as persons of interest who could seek visitation)
- Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27 (2007) (standard for reviewing denial of continuance and prejudice required to reverse)
- Congdon v. Commonwealth, 57 Va. App. 692 (2011) (untimely juvenile-court appeals are generally dismissed)
- Lawlor v. Commonwealth, 285 Va. 187 (2013) (abuse-of-discretion standard explained for appellate review)
- Winfield v. Urquhart, 25 Va. App. 688 (1997) (view evidence in light most favorable to prevailing party on appeal)
- Brown v. Brown, 218 Va. 196 (1975) (trial court presumed to have weighed evidence and considered best interests)
- Shackelford v. Shackelford, 39 Va. App. 201 (2002) (trial court’s credibility determinations entitled to deference)
- Sandoval v. Commonwealth, 20 Va. App. 133 (1995) (credibility and weight of evidence are matters for the factfinder)