Jeffrey M. Payne v. Lynchburg Division of Soc. Serv ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JEFFREY M. PAYNE
v. Record No. 2536-96-3 MEMORANDUM OPINION *
PER CURIAM
LYNCHBURG DIVISION OF JUNE 10, 1997
SOCIAL SERVICES
FROM CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
(Craig P. Tiller, on briefs), for appellant.
(Joyce M. Coleman, Senior Assistant City
Attorney, on brief), for appellee.
Jeffrey M. Payne, by his guardian ad litem, appeals the
decision of the circuit court denying his petition to determine
parentage. Payne contends that the trial court (1) abused its
discretion in applying the doctrine of laches to deny his
petition; (2) abused its discretion in denying blood tests to
verify paternity; and (3) erred in dismissing the petition. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. Rule 5A:27.
Payne contends that he is the father of two children born in
January 1985 and February 1986 to Sarah Barcliff, who died in
July 1987. At the time the children were born, Sarah Barcliff
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was married to Robert Barcliff, Sr., whose parental rights were
terminated by a 1994 order. Payne admitted that he never paid
support for the children, never attempted to obtain custody from
the Department of Social Services (DSS) when the children were
removed from his mother's custody in 1991, and had no contact
with the children. DSS produced evidence showing that Payne's
mother, Bertha Payne, listed Robert Barcliff, Sr., as the
children's father when she petitioned for custody in New York.
Sharon Swedlow, testifying on behalf of DSS, stated that Payne
denied being the children's father.
Doctrine of Laches
The trial court ruled that the doctrine of laches applied to
bar appellant's petition to determine parentage of the children.
"Laches has been defined as an omission to assert a right for an
unreasonable time and unexplained length of time, under
circumstances prejudicial to the adverse party," Finkel Outdoor
Products, Inc. v. Bell, 205 Va. 927, 933, 140 S.E.2d 695, 699
(1965), or as "'such neglect or omission to do what one should do
as warrants the presumption that he has abandoned his claim, and
declines to assert his right.'" Pittman v. Pittman, 208 Va. 476,
479, 158 S.E.2d 746, 749 (1968) (citation omitted). Here, Payne
made no claim of paternity of the children for years, despite the
children's placement in foster care. At no point in their lives
has Payne asserted any interest in the children or assumed any
responsibility for them. The children were removed from his
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mother's custody in 1991 after being adjudicated abused children.
At the time this petition was filed, appellant was incarcerated,
but cited that it was his desire that "said children to
eventually reside in the care of actual family members."
Payne's failure to assert paternity at any point in the
lives of these children, or to assume any responsibility for
them, fully supports the trial court's application of laches to
deny his claim. Not only has evidence grown stale, and a key
witness died, but the entire lives of these children have passed
without even a hint of his claimed fatherhood. The record
reflects that the children suffered serious abuse at the hands of
appellant's mother, yet appellant took no steps to protect them
or provide for them.
While laches does not run against one who is ignorant of his
rights, credible evidence demonstrated that appellant knew of his
rights but took no action. His claimed right arose with the
birth of the children, not with the termination of the parental
rights of the presumptive father in 1994. The children were born
in 1985 and 1986; their mother died in 1987; Payne's mother
obtained custody in 1989; and the children were removed from her
home in 1991 because of abuse. At any of these points, Payne
could have raised his claim. As appellant was not the
presumptive father, there was no obligation to provide him with
notice of the termination hearing other than through publication.
See Code § 16.1-278.3. See also Unknown Father v. Division of
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Social Servs., 15 Va. App. 110, 422 S.E.2d 407 (1992). We find
no merit in his assertion that he should have been made a party
to the termination proceedings, and we find no abuse of
discretion in the trial court's decision.
Denial of Blood Testing
As the trial court did not abuse its discretion in finding
that appellant was barred by the doctrine of laches from
proceeding with his petition, we find no abuse of discretion in
the trial court's refusal to order blood testing.
Dismissal of Petition
As noted above, appellant has not demonstrated error in the
notice provided of the termination proceedings. The trial court
found that appellant "did not present one scintilla of creditable
evidence to support his claim of paternity or to justify blood
testing." The record supports the court's findings. We find no
error in the trial court's decision dismissing his petition.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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