Christina Robinson v. Madison County Department of Social Services ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker
UNPUBLISHED
Argued at Lexington, Virginia
CHRISTINA ROBINSON
MEMORANDUM OPINION BY
v. Record No. 0778-14-2 JUDGE WILLIAM G. PETTY
DECEMBER 23, 2014
MADISON COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF MADISON COUNTY
Gaylord L. Finch, Jr., Judge Designate
Stephanie Cangin for appellant.
Deborah Tinsley; Catherine A. Lowe, Guardian ad litem for the
infant children, for appellee.
Robinson appeals from an order of the circuit court dismissing her appeal from an order
entered by the Madison County Juvenile and Domestic Relations District Court terminating her
parental rights to her two children. Robinson argues that the circuit court erred in finding that
she received proper notice of the circuit court hearing and in treating her appeal as withdrawn
pursuant to Code § 16.1-106.1. For the following reasons, we reverse and remand.
I. BACKGROUND
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. On appeal, “the evidence is viewed in the light most favorable to the prevailing

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.”
Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991).
Robinson is the mother of E.W., born May 20, 2005, and T.W., born April 9, 2007. On
July 10, 2007, the Fauquier County Juvenile and Domestic Relations District (JDR) Court
adjudicated that E.W. was an abused and neglected child and transferred custody of E.W. from
Robinson to his maternal grandparents, Janet and Jimmy Wright. Custody of T.W. was
transferred to the Wrights at the same time.
On May 10, 2012, E.W. and T.W. were removed from the grandparents’ care due to
abuse and neglect. The Madison County JDR court transferred custody of both children to the
Madison County Department of Social Services (DSS) and approved foster care plans with
concurrent goals of return home to the grandparents and relative placement.
On October 25, 2013, DSS filed a foster care plan with the goal of adoption and a petition
to terminate Robinson’s residual parental rights with regards to E.W. and T.W. On November
25, 2013, the Madison County JDR court approved the foster care plan with a goal of adoption
and terminated Robinson’s parental rights to both children. Robinson appealed to the circuit
court.1 Docket call took place on January 6, 2014, and the hearing was scheduled for March 25,
2014. Robinson’s guardian ad litem,2 her attorney, was present at both proceedings, but
Robinson herself was not. Robinson was incarcerated at the time of the JDR court hearing and
1
The grandparents also filed appeals to the circuit court challenging the change of the
foster care plan goal to adoption.
2
Because Robinson was incarcerated during this proceeding she was appointed a
guardian ad litem pursuant to Code § 8.01-9.
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there is nothing in the record to indicate that she had been released at the time of the circuit court
hearing.3
On March 25, 2014, DSS made a motion pursuant to Code § 16.1-106.1(D) which states,
in part,
If a party who has appealed a judgment or order of a district court
fails to appear in circuit court either at the time for setting the
appeal for trial or on the trial date, the circuit court may, upon the
motion of any party, enter an order treating the appeal as
withdrawn and disposing of the case in accordance with this
section.
The circuit court concluded that because Robinson was not present, her appeal would be
treated as withdrawn pursuant to Code § 16.1-106.1(D).4 Robinson’s attorney noted her
objection to dismissing the appeal because Robinson had not received actual notice of the
hearing date.5 The circuit court then found that Robinson had received sufficient notice. This
appeal followed.
II. ANALYSIS
On appeal, Robinson only assigns error to the circuit court’s finding that legal notice of
the termination of parental rights hearing was proper and sufficient and dismissing the appeal
3
Robinson’s attorney told the circuit court that she sent a letter to the Central Virginia
Regional Jail that was returned to her stating that Robinson was no longer in the jail. The record
does not indicate, however, whether at the time of the circuit court hearing Robinson had been
released from incarceration or transferred to another correctional facility.
4
Because Robinson’s appeal was treated as withdrawn, the circuit court ruled that the
JDR court orders approving the foster care plan goal of adoption and terminating Robinson’s
parental rights would be final orders. The court then dismissed the grandparents’ appeals for
lack of legal standing. The grandparents filed separate appeals to this Court challenging the
circuit court’s dismissal of their appeals. In an order entered this day, December 23, 2014, we
reversed the circuit court’s decision and remanded for rehearing. See Wright v. Madison Cnty.
Dep’t of Soc. Servs., Nos. 0723-14-2, 0779-14-2 (Va. Ct. App. Dec. 23, 2014).
5
DSS argues that Robinson’s objection was insufficient to preserve her argument on
appeal. However, the circuit court transcript indicates that the trial court noted Robinson’s
objection on the issue of adequacy of notice.
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pursuant to Code § 16.1-106.1(D) when no evidence was presented to the trial court that she had
been served, personally or by substitution, with any process regarding the hearing date in the
circuit court. Whether Robinson received sufficient notice is a question of law subject to de
novo review on appeal. See Farrell v. Warren County Dep’t of Soc. Servs., 59 Va. App. 375,
402, 719 S.E.2d 329, 342 (2012).
Robinson argues that her due process rights were violated when her appeal was treated as
withdrawn because there was no evidence that she was served with any process regarding the
March 25, 2014 circuit court hearing. DSS responds that Robinson was only entitled to notice of
the JDR court proceedings pursuant to Code § 16.1-283 and that notice to her attorney of the
circuit court hearing date is all that was required on appeal.6
The United States Supreme Court has recognized that the Fourteenth Amendment’s Due
Process Clause specifically protects the “fundamental right of parents to make decisions
concerning the care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57, 65
(2000). That “liberty interest . . . does not evaporate simply because they have not been model
parents . . . . [P]arents retain a vital interest in preventing the irretrievable destruction of their
family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).
Due process also requires that a party receive “‘reasonable notice and reasonable
opportunity to be heard . . . .’” Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916
(1991) (quoting Dohany v. Rogers, 281 U.S. 362, 369 (1930)). Reasonable notice must “apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726
(1980) (quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314-15 (1950)). “The notice
6
This Court notes that Robinson was present at the JDR court hearing and it is
undisputed by the parties that she received proper notice of the JDR court hearing and an
opportunity to be heard pursuant to Code § 16.1-283(A).
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must be of such nature as reasonably to convey the required information, . . . and it must afford a
reasonable time for those interested to make their appearance.” Id.
The opportunity to be heard is especially important in cases such as this one. This Court
has held that “[t]he termination of parental rights is a grave, drastic, and irreversible action.
When a court orders termination of parental rights, the ties between the parent and child are
severed forever and the parent becomes a ‘legal stranger to the child.’” Martin v. Pittsylvania
Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20-21, 348 S.E.2d 13, 16 (1986) (quoting Lowe v.
Richmond Dep’t of Pub. Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)).
In fact, the Supreme Court has held that it is an abuse of discretion to deny a continuance
when the parent whose rights are at stake is unable to participate in a termination of parental
rights hearing. Haugen v. Shenandoah Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265
(2007)). In Haugen, the mother was incarcerated but participated in the circuit court termination
hearing by telephone. Id. at 30, 645 S.E.2d at 262. The prison official required the mother to
terminate her telephone connection to the hearing. Id. The circuit court denied counsel’s motion
for a continuance, and the hearing proceeded for another ninety-one minutes without the
mother’s participation. Id. at 30, 645 S.E.2d at 263. The Supreme Court reversed the circuit
court’s denial of the motion for a continuance because the mother was entitled to participate in
the remainder of the hearing. The Court held that:
In view of the “grave, drastic, and irreversible” effects of a
judgment terminating a parent’s parental rights, as a matter of
common law, the circuit court should have granted the
continuance. Haugen was prejudiced because she was unable to
participate in an important portion of a proceeding in which she
was rendered a legal stranger to her biological child.
Id. at 35, 645 S.E.2d at 265 (quoting Lowe, 231 Va. at 280, 343 S.E.2d at 72).
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In dissent, Justice Agee noted,
The majority opinion reaches what can only be seen as the
adoption of a per se rule: that in termination of parental rights
cases, the failure by a court to grant a continuance (even when not
requested) where the subject parent does not participate in some
part of the hearing is prejudice per se and an abuse of discretion as
a matter of law. Virginia . . . now holds that in a termination of
parental rights case a court abuses its discretion as a matter of law
when it fails to grant a continuance, requested or not, when a
parent does not participate in some part of a termination
proceeding even though represented by counsel.
Id. at 44, 645 S.E.2d at 271 (Agee, J., dissenting).
Guided by the principles in Haugen, we conclude that, absent a voluntary waiver of her
right to be present at the circuit court hearing, Robinson was entitled to attend the hearing.7
Under the circumstances of this case, however, Robinson did not have the opportunity to
voluntarily waive her right to be present at the circuit court hearing because she never received
notice of that hearing.
DSS has not pointed to any evidence in the record supporting the circuit court’s finding
that Robinson received notice of the circuit court hearing. DSS argued that a notice was mailed
to Robinson at the jail indicating that a date for trial would be scheduled in court on January 6,
2014. However, the only evidence in the record supporting this assertion is a handwritten note
on the bottom of the notice of hearing on appeal indicating that notice was mailed to Robinson
on December 27, 2013. The record shows no other evidence of this mailing, the address to
which it was mailed, or a return receipt to prove that notice of the January 6, 2014 docket call
was actually received. DSS argued that another notice was sent to Robinson indicating that the
7
Robinson’s attorney did not request a continuance, and it was not argued on appeal that
a continuance should have nevertheless been granted to allow Robinson’s attorney time to locate
her client. As a result, this Court cannot reach the issue of whether a continuance should have
been granted in this case. However, we use the principles in Haugen to guide our analysis of the
unique facts of this case.
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hearing was set for March 25, 2014 but there is no documentation in the record supporting this
assertion either.
Additionally, although Robinson’s attorney signed the notice of appeal on behalf of
Robinson, there is no evidence that Robinson received notice of the hearing date from her
attorney. Robinson was not present at the January 6, 2014 docket call when the hearing date was
set. On March 25, 2014, Robinson’s attorney told the circuit court that she had not heard from
Robinson. Robinson’s attorney stated that the mail she sent to Robinson at the Central Virginia
Regional Jail was returned, stating that Robinson was no longer incarcerated there. Robinson’s
attorney said that she did not know where Robinson was and that Robinson had not contacted
her. Thus, there is no evidence in the record supporting the circuit court’s finding that Robinson
received actual notice of the hearing date and chose not to attend.
This Court notes that while notice to an appellant’s attorney may constitute notice to the
appellant in other circumstances, notice through counsel was insufficient under the unique facts
of this case. Under these facts, where Robinson’s last known address was in a jail, no transport
order was entered to secure Robinson’s presence at docket call, Robinson’s attorney was
unsuccessful in notifying her incarcerated client of the hearing date, and Robinson’s fundamental
right to parent was at stake, notice to Robinson’s attorney alone was insufficient.
DSS argues that whether Robinson received notice and an opportunity to be heard is
immaterial because Robinson was not prejudiced by the circuit court’s dismissal of her appeal
because it was in the best interests of the children to terminate her parental rights. This argument
fails to recognize that Robinson’s constitutional and statutory rights are not contingent on the
likelihood of her parental rights being terminated. In Santosky, the United States Supreme Court
held that “[i]f anything, persons faced with forced dissolution of their parental rights have a more
critical need for procedural protections than do those resisting state intervention into ongoing
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family affairs. When the State moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures.” 455 U.S. at 753-54. Thus, regardless of whether or
not Robinson’s appeal was likely to succeed on its merits, due process requires that Robinson be
given notice and an opportunity to be heard.
Further, Code § 16.1-296 makes clear that the circuit court must conduct a de novo
hearing in termination of parental rights cases on appeal from the juvenile and domestic relations
district courts. “[S]uch a trial de novo in the circuit court grants to a litigant every advantage
which would have been his had the case been tried originally in such court.” Peple v. Peple, 5
Va. App. 414, 419, 364 S.E.2d 232, 236 (1988). Therefore, the burden of proof remained on
DSS to prove that termination of parental rights was in the best interests of the children. Ange v.
York/Poquoson Dep’t of Soc. Servs., 37 Va. App. 615, 629-30, 560 S.E.2d 474, 481 (2002). For
this reason, in Ange, this Court reversed the circuit court’s decision to summarily adjudicate the
termination of a mother’s parental rights without a hearing on the merits, finding that “[t]he legal
process, as well as the trial court’s important appellate role in that process, was thus
short-circuited.” Id. at 630, 560 S.E.2d at 481. Here, treating Robinson’s appeal as withdrawn
relieved DSS of its burden of proof and prevented Robinson from rebutting DSS’s evidence. In
other words, the court “deprived [Robinson] of her day in court on the merits of the case” to
which she was entitled under Code § 16.1-296 and the Fourteenth Amendment’s Due Process
Clause. Id. at 629, 560 S.E.2d at 481. As the Supreme Court noted in Haugen, “[Robinson] was
prejudiced because she was unable to participate in an important portion of a proceeding in
which she was rendered a legal stranger to her biological child.” 274 Va. at 35, 645 S.E.2d at
265.
There is nothing in the record to indicate that Robinson received notice of the hearing
date and chose not to attend. As such, this is not a case where we can find that the mother
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voluntarily waived her right to be present. Robinson’s due process and statutory rights were
violated when the circuit court treated her appeal as withdrawn and terminated her parental rights
in her absence and without a de novo hearing. Thus, we conclude that the circuit court erred in
treating Robinson’s appeal as withdrawn.
III. CONCLUSION
For the foregoing reasons, we reverse the circuit court’s dismissal of the appeal and
remand the case to circuit court for a hearing on the merits.
Reversed and remanded.
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