THE CIRCUIT COURT OF POWHATAN COUNTY Paul W. Cella, Judge
L. Roddy (FloranceGordonBrown, on brief), for appellant.
Colleen M. Quinn (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
Present: Judges Chafin, Russell and AtLee Argued at Richmond,
G. RUSSELL, JR. JUDGE.
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") 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.
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).
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.
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.
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
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.
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
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 with the other children before she returned
to the home. Traylor declined any services.
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."
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. A separate guardian was appointed
to represent L.T.'s interests.
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
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
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,  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."
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 hear that and make a decision based on that. .
. . I don't think this case can be dragged on
indefinitely to see how [Geouge] does." By order dated
the same day, the circuit court denied Geouge's motion to
continue. On December 6, 2016, Geouge filed another motion to
continue based on appellees' alleged failure to comply
with discovery rules; the motion was withdrawn upon the
parties reaching an agreement on the discovery issues.
December 12, 2016, Geouge filed a motion to stay the
proceedings, claiming that Geouge's father was of Native
American descent. She asserted that a stay was needed
"to ensure compliance with the [Indian Child Welfare
Act], if it applies" to allow for "sufficient time
for appropriate Notice to the Tribes, as well as sufficient
time for mother to investigate her ancestry to determine
[her] status." Appellees opposed the stay.
matter proceeded to trial in the circuit court on December
15, 2016. At the outset of trial, Geouge raised the issue of
the potential application of ICWA, asserting that
Geouge's father was "known by the family to be of
Cherokee descent, " but making no representation that
either he or Geouge were members of a federally recognized
Cherokee tribe. Dorothy Wilkins, who had shared a home with
Geouge's father when they were growing up, later
testified that the family believed that he was of Native
American descent. Geouge's aunt, her father's sister,
also testified that she understood from her parents that they
were of Cherokee descent. Without objection, appellees
provided the court with a copy of the Federal Register
listing the three federally recognized Cherokee tribes and
information regarding the requirements for membership in
those tribes. The child's guardian ad litem
concurred with Geouge's request for a continuance/stay,
citing the potential for an overturning of the adoption in
the future should a tribe determine the child is a member.
denying the stay, the circuit court determined that under
ICWA, "the child must be a member of a federally
recognized tribe, or the child must be eligible for
membership and be the child of a member." The court then
found that Geouge had "conceded that those requirements
have not been met, because there's not proof that the
child is a member or that the mother is a member." The
court noted that "[i]t's just some vague assertion
that there might be some Indian ancestry" and stated
that "the burden of proof is on [Geouge] to show that
ICWA does apply."
denying the stay, the court proceeded to address whether
Geouge was withholding her consent to the adoption contrary
to the best interests of L.T. The parties presented evidence
over two days.
Mrs. Griffith testified that she became aware of L.T. through
her pastor. She noted that L.T. was eleven days old when she
and her husband assumed custody of her, but that Traylor did
not formally consent to the adoption until seven to ten days
later. She denied making any payments to Traylor. She stated
Geouge first attempted to call appellees in December 2015,
but they were out of town. Geouge next reached out in January
2016, and again in April 2016, having about a twenty-minute
phone conversation each time. Mrs. Griffith also testified
regarding written correspondence, including her sending
Geouge photographs of L.T. in March 2016. More pictures and
an update were sent in November just after L.T.'s first
birthday. With respect to bringing L.T. to the correctional
facility to visit Geouge, Mrs. Griffith asserted her belief
that the JDR court order denying Geouge's visitation
petition prohibited such visitation.
Griffith testified about taking L.T. to regular doctors'
appointments and commented that the child is "a very
happy and healthy baby." She further described their
usual activities, including playing cook, reading, taking
walks, and occasional play dates. She also commented on the
efforts she had made to allow interaction with Geouge's
mother and to foster a continuing relationship between L.T.,
Traylor, and L.T.'s brothers. Citing consideration of the
best interests of L.T., she neither agreed to nor ruled out
potential interaction between L.T. and Geouge in the future.
testified that he began his relationship with Geouge in 2006
and had custody of three sons that he shares with Geouge. He
stated that he initially had planned on parenting L.T., but
realized he would not be capable when also raising the other
children. He noted behavioral issues with them, especially
the eldest who had been admitted to a psychiatric facility.
lived with Geouge until she was incarcerated. He testified to
observing fentanyl patches, empty pill capsules, and liquor
at the residence. He commented on the condition of
Geouge's mother's house when they resided there,
noting that it had rotted wood, missing bricks, and mold. He
acknowledged that he could not say whether there had been
improvements made after he moved out.
described incidents of rage by Geouge, in which she yelled,
swore, spat, and threw things, even when children were
present. He stated that she once hit him in the back of his
head with a skateboard and that "she did come after me
with a knife on a few occasions." Traylor also asserted
that Geouge inappropriately consumed cough syrup and had
pawned some of the children's toys.
Geouge, Geouge's ex-husband, also testified. They married
in 1998 and separated five to six years later. They divorced
in 2014 while Geouge was incarcerated. Together they had a
son, born March 27, 2001, who is autistic. Geouge had custody
of the son until July 2014 when custody was transferred to
the ex-husband. Geouge was awarded visitation. According to
the ex-husband, Geouge attempted to maintain regular
communication with their son. The ex-husband testified that,
minus some violent episodes, he thought Geouge was a good
called several witnesses to testify to their observations of
Geouge's drug use and parenting. Katie Bredemeier, a
friend through Geouge's ex-husband, testified to
Geouge's attempt to use her name to procure oxycodone and
Geouge's unlawful acquisition of her daughter's
drugs. Bredemeier testified that prior to her drug problem,
which began in 2013-14, Geouge took good care of her sons.
Bredemeier said she had been approached about taking care of
L.T., but was only interested if it would lead to full
Guthrie, who had known Geouge for sixteen years, acknowledged
that she had given Geouge prescription drugs in the past. She
relayed an incident regarding a neighbor whose daughter's
medications went missing after Geouge had used the bathroom.
Guthrie had been asked to take L.T., but could not due to her
own family issues.
mother, Teresa Traylor, recounted calling the police when
Geouge used her name to get prescription drugs from a
dentist. She stated that Geouge started as a good mother, but
then "things started happening." As the paternal
grandmother, she assumed a lot of financial responsibility
regarding the three boys. She commented that Geouge was
"not a good parent for these children."
called numerous witnesses to opine on her positive qualities
as a parent. The witnesses included relatives and others in
the community. They testified regarding their impressions of
her relationships with her other children, her attempts at
reforming her troublesome behaviors, and their abilities to
serve as a support system for Geouge and her children upon
her release from prison.
also called multiple officials from the prison to testify.
They testified that Geouge was behaving appropriately in
prison, seemed eager to correct her past mistakes, expressed
her desire to reunite with L.T., was working towards
sobriety, and recognized that her actions had led to her
current family situation. They testified that Geouge sought
out classes, including a parenting class, designed to ease
her transition after her release from prison.
testified regarding her drug addiction. She said she became
addicted to pain medication after a series of back surgeries
beginning in 2011. She denied using any substances while
pregnant with any of her children and contested the
allegations made during Traylor's testimony regarding
same. She described the programs she was participating in and
detailed what actions she would take upon release, including
checking in with her probation officer, continued substance
abuse treatment programs, and further payment of her fines
and costs. She explained what repairs had been and would be
made to the house in which she and the children would live.
She articulated how she anticipated the transition for L.T.
would proceed, allowing the child to remain with appellees
with gradually more time with Geouge, possibly over the
course of a year. Geouge acknowledged she had not seen her
child since three days after she had been born. On
cross-examination, she was questioned regarding outstanding
medical bills, of which she had no knowledge, and her
potential future employment for which she had not yet
William F. Whelan, a clinical psychologist, testified as an
expert in attachment issues. He described his methodology and
explained the importance to a child of strong, healthy
parental attachment. He observed L.T. with appellees in April
and in October of 2016. He testified that L.T.'s
attachment with appellees was secure and healthy and that
there were no high risk or odd behaviors or developmental
problems. He specifically opined that
[L.T.'s] interactions in October when we saw them are
secure with each [foster] parent, meaning that she does
organize herself around them, she automatically makes good
use of their help both for exploration and for soothing her
distress and her emotions. She automatically gravitates
toward them, seeks proximity, maintains contact with them
during times of stress. And these are all things that are
hallmarks of security in the first year of life.
respect to appellees, he commented,
Their caregiving patterns . . . were sensitive to her
emotional and behavioral needs, and secure. They were able to
scaffold her behavior and exploration in the play room, and
during times of distress they did a very nice job in
approaching and soothing her, and she responded well to that.
So there was a large degree of automatic, moment-to-moment
synchronicity in their behaviors and also reciprocity, and
those things are also hallmarks of security.
Whelan also testified to the potential effects of a change in
custody. He stated:
If [L.T.] were to lose her current foster parents, that would
almost certainly be a huge loss to her and a huge injury,
emotional injury. One of the reasons being is that the
relationship is a very physical thing . . . her body, her
neurology is used to having them around, knows how to
interact with them, and she's organized herself around
those people. So if she loses them she's going to sustain
a very significant emotional loss and injury.
noted that, as a result of such a separation, a child may
suffer physical symptoms as well, including vomiting or sleep
loss, and, if under protracted distress, loss of
concentration and behavioral issues.
he testified that it was his opinion that L.T. was fully
attached to appellees, Dr. Whelan conceded that it is
possible for a child, after suffering a traumatic loss of
attachment, to develop healthy, secure attachments with other
caregivers. The new caregiver, however, would need to be a
is emotionally healthy and has good abilities in
self-reflection, able to think about what's going on
inside [L.T.], able to think about what she needs, able to
think about her own emotional states and be able to regulate
herself well. [The new caregiver would need to be a] person
who has a history of success in close emotional
relationships, somebody that knows how to repair ups and
downs . . . .
Whelan had not met with Geouge or assessed her caregiving
abilities, but opined that a history of addiction or
inability to regulate internal behaviors would raise
Walter Lewis, the priest at the church where appellees have
been parishioners for over five years, and Mary Harrison, a
fellow parishioner, reported the positive ...