John Hargrove v. City of Hampton Department of Social Services ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
JOHN HARGROVE
MEMORANDUM OPINION*
v. Record Nos. 2317-05-1 and PER CURIAM
2318-05-1 MARCH 21, 2006
CITY OF HAMPTON
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
(M. Woodrow Griffin, Jr., on brief), for appellant.
(Rachel Allen, Assistant City Attorney; Thomas A. Burcher,
Guardian ad litem for the minor child; Hawkins, Burcher & Boester,
PC, on brief), for appellee.
John Hargrove, appellant, appeals decisions of the circuit court terminating his residual
parental rights to his daughter and approving an amendment of the foster care plan to authorize
her adoption. Upon reviewing the record and briefs of the parties, we conclude these appeals are
without merit. Accordingly, we summarily affirm the decisions of the trial court. See Rule
5A:27.
BACKGROUND
The daughter was born on December 19, 1993, to appellant and Priscilla Hargrove, who is
deceased. In 2003, the State of Georgia charged appellant with seven counts of felony sexual abuse
of his daughter. A jury convicted him of all seven offenses on August 24, 2005. Appellant received
an active sentence of twenty years.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On June 11, 2004, the Hampton Department of Social Services removed the daughter from
the custody of her maternal aunt because of physical abuse and placed her in a foster home.
Initially, the goal of the foster care service plan was to return the daughter to her home or to place
her with a relative.
On May 31, 2005, the Department petitioned for termination of appellant’s parental rights
based upon Code § 16.1-283(E)(iii) and (iv). On July 26, 2005, the juvenile and domestic relations
district court terminated appellant’s parental rights pursuant to Code § 16.1-283(E)(iv). On appeal
of the district court’s termination order, the circuit court heard evidence regarding appellant’s
August 24, 2005 convictions of sexual abuse of his daughter. The circuit court terminated
appellant’s residual parental rights pursuant to Code § 16.1-283(E)(iii) and approved a change in the
foster care service plan to a goal of adoption for the daughter.
DISCUSSION
I.
When considering termination of a parent’s residual rights to a child, “the paramount
consideration of a trial court is the child’s best interests.” Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). On review, “[a] trial court is
presumed to have thoroughly weighed all the evidence, considered the statutory requirements,
and made its determination based on the child’s best interests.” Farley v. Farley, 9 Va. App. 326,
329, 387 S.E.2d 794, 796 (1990). “The trial court’s judgment, ‘when based on evidence heard
ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support
it.’” Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (quoting Peple v. Peple, 5 Va. App. 414, 422,
364 S.E.2d 232, 237 (1988)).
Appellant contends the evidence failed to support a termination pursuant to Code
§ 16.1-283(E)(iii). Appellant concedes he was convicted of sexually abusing his daughter as set
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forth in Code § 16.1-283(E)(iii), but he argues that his convictions could not support a Code
§ 16.1-283(E)(iii) termination because he had not been convicted of the offenses when the
termination petition was filed on May 31, 2005.
The Department invoked the jurisdiction of the district court by filing a petition
requesting the termination of appellant’s parental rights pursuant to Code § 16.1-283(E)(iii) and
(iv). The district court ordered termination pursuant to Code § 16.1-283(E)(iv). It did not base
its termination decision upon Code § 16.1-283(E)(iii), which allows termination of a parent’s
rights to a child where “the parent has been convicted of an offense under the laws of this
Commonwealth or a substantially similar law of any other state . . . that constitutes . . . felony
sexual assault, if the victim of the offense was a child of the parent . . . .” However, on appeal to
the circuit court, the court entered a termination order pursuant to Code § 16.1-283(E)(iii).
In Fairfax County Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 512 S.E.2d 830
(1999), the district court entered an order finding a child “abused or neglected” within the
meaning of Code § 16.1-228(4). On appeal of that decision, the circuit court refused to admit
evidence proving the child was “abused or neglected” as defined by Code § 16.1-228(1), a
different subsection of the statute. D.N., 29 Va. App. at 404, 512 S.E.2d at 832. While noting
that the circuit court’s jurisdiction was derivative upon appeal from the juvenile court, we held as
follows:
[A]n appeal from the juvenile court must be heard de novo by the
circuit court. Code § 16.1-136. “‘A de novo hearing means a trial
anew, with the burden of proof remaining upon the party with
whom it rested in the juvenile court.’” Parish v. Spaulding, 20
Va. App. 130, 132, 455 S.E.2d 728, 729 (1995) (quoting Box v.
Talley, 1 Va. App. 289, 292, 338 S.E.2d 349, 351 (1986)). A trial
de novo in the circuit court “annuls the judgment of the [juvenile
court] as completely as if there had been no previous trial . . . and
. . . grants to a litigant every advantage which would have been
[available to the litigant] had the case been tried originally in [the
circuit] court.” Walker v. Dept. of Public Welfare, 223 Va. 557,
563, 290 S.E.2d 887, 890 (1982) (citations omitted), quoted in
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Parish, 20 Va. App. at 132, 455 S.E.2d at 729. “‘A court which
hears a case de novo, which disregards the judgment of the court
below, which hears evidence anew and new evidence, and which
makes final disposition of the case, acts not as a court of appeals
but as one exercising original jurisdiction.’” Addison [v. Salyer],
185 Va. [644,] 650, 40 S.E.2d [260,] 263 [(1946)] (quoting
Gemmell, Inc. v. Svea Fire and Life Insurance, 166 Va. 95, 98, 184
S.E. 457, 458 (1936)).
It follows from these principles that, at a trial de novo in the
circuit court, the parties are not restricted to the evidence presented
before the juvenile court. The circuit court must consider all
relevant evidence, even if such evidence had not been considered
by the juvenile court.
D.N., 29 Va. App. at 406, 512 S.E.2d at 832-33. Because the circuit court had refused to admit
evidence proving the child was abused and neglected under a different subsection of the statute
upon which the juvenile court had made its finding, we reversed the judgment. Id. at 407, 512
S.E.2d at 833.
Applying the holding in D.N. to this case, we conclude that the Department was not
limited to the evidence and arguments presented in the district court. In the appeal de novo, the
Department was entitled to every advantage it would have had available to it had the case
originated in the circuit court. See D.N., 29 Va. App. at 406, 512 S.E.2d at 832. Thus, the
Department was entitled to prove, and the circuit court had the authority to find, that appellant’s
parental rights should be terminated pursuant to Code § 16.1-283(E)(iii). The record
undisputably established that appellant had been convicted of the sexual offenses against his
daughter when the circuit court was considering de novo the termination petition.
II.
Appellant also contends the circuit court erred in changing the goal of the foster care
service plan to adoption. “Our decision to affirm the termination order necessarily subsumes this
aspect of his appeal because a preponderance-of-the-evidence standard governs judicial
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modifications of foster care plans.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,
265 n.3, 616 S.E.2d 765, 769 n.3 (2005).
CONCLUSION
For the foregoing reasons, we hold that appellant’s appeals are without merit, and we
summarily affirm the decisions.
Affirmed.
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