Lisa Dolak v. Virginia Beach Department of Human Services ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
LISA DOLAK
MEMORANDUM OPINION * BY
v. Record No. 0064-12-1 JUDGE ROBERT P. FRANK
JULY 31, 2012
VIRGINIA BEACH DEPARTMENT
OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
(John A. Coggeshall, on brief), for appellant. Appellant submitting
on brief.
(Mark D. Stiles; Christopher Boynton; Rachel Allen; Leilani A.
Adams, Guardian ad litem for the minor child; Office of the City
Attorney; Thomas & Associates, PC, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Lisa Dolak, appellant, appeals the termination of her parental rights to her child pursuant to
Code § 16.1-283(E)(i). Appellant argues the circuit court erred in entering an order, in absentia,
terminating her parental rights of L.D., a minor child, in violation of appellant’s rights to due
process. For the reasons stated, we affirm the judgment of the trial court.
BACKGROUND
We recite only those facts germane to our analysis.
L.D. was born to appellant and Jarrod Dolak on March 31, 2009. On April 3, 2009, the
Virginia Beach Department of Human Services (VBDHS) filed an emergency removal petition in
the city’s juvenile and domestic relations district court (JDR court), seeking custody of L.D. The
petition was based on: 1) a history of domestic violence between appellant and Jarrod Dolak;
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2) three previous, founded child protective services cases; 3) prior removal of other biological
children; 4) prior involuntary termination of parental rights; 5) mental health concerns;
6) instability; and 7) a history of incarceration/criminal activity by both parents. On April 3, 2009,
an emergency removal order was issued, and VBDHS received custody of L.D.
On April 9, 2009, the JDR court entered a preliminary removal order continuing custody
with VBDHS. Both parents were present and represented by counsel.
On June 10, 2009, the JDR court entered an order holding that L.D. was at-risk and that
there was a substantiated complaint of child abuse and neglect against L.D.’s parents. The order
continued custody of L.D. with VBDHS. Foster care service plans were approved by the court for
both parents.
On May 23, 2011, termination proceedings were held in the JDR court. Appellant had been
personally served with the termination of parental rights petition, but she did not appear for the
hearing. The JDR court terminated the parental rights of both parents.
On December 8, 2011, a de novo hearing was held in the circuit court on appeal of the
termination of parental rights. Neither appellant nor Jarrod Dolak appeared at the hearing, but
court-appointed counsel for each parent appeared. The circuit court entered an order, in absentia,
terminating the parental rights of appellant and Jarrod Dolak.1 This appeal follows.
ANALYSIS
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in the
circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
(2005) (quoting Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d
1Jarrod Dolak also appealed the termination of his parental rights, and his appeal (Record
No. 0065-12-1) is also decided this day.
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460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the circuit
court “‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Id. at 265-66, 616 S.E.2d at 769 (quoting Fields
v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “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.’” Id. at 266, 616 S.E.2d at 769 (quoting Logan, 13
Va. App. at 128, 409 S.E.2d at 463). “In its capacity as factfinder, therefore, the circuit court retains
‘broad discretion in making the decisions necessary to guard and to foster a child’s best interests.’”
Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
Appellant argues that the circuit court erred in terminating her parental rights in her absence.
She contends that she was deprived of her right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and under the Virginia Constitution, Article I, § 11.
However, appellant did not preserve this issue for appeal. In appellant’s written statement of facts,
paragraph 16 states that the circuit court terminated the parental rights of appellant and Jarrod Dolak
on December 8, 2011, “over the objection of their counsel.” The statement of facts provides no
grounds for the objection. The circuit court’s order terminating appellant’s parental rights was
entered on December 8, 2011, and it was merely signed “[s]een and objected to” by appellant’s
counsel. Again, no grounds for the objection were given.
Rule 5A:18 states that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for
good cause shown or to enable the Court of Appeals to attain the ends of justice.”
The purpose of the rule is to allow the trial court to cure any error
called to its attention, thereby avoiding unnecessary appeals and
retrials. See, e.g., Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d
736, 737 (1991) (en banc). Ordinarily, endorsement of an order
“Seen and objected to” is not specific enough to meet the
requirements of Rule 5A:18 because it does not sufficiently alert
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the trial court to the claimed error. See id. at 515, 404 S.E.2d at
738. Such an endorsement is sufficient to satisfy Rule 5A:18 only
if “the ruling made by the trial court was narrow enough to make
obvious the basis of appellant’s objection.” Mackie v. Hill, 16
Va. App. 229, 231, 429 S.E.2d 37, 38 (1993).
Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000).
In this case, appellant’s endorsement of the order terminating her parental rights gave no
indication of a due process argument. Furthermore, the record shows that both appellant and Jarrod
Dolak were, in fact, given proper notice of the termination proceedings. Counsel for both parties
appeared at the hearing.2
Rule 5A:18 allows exceptions for good cause or to meet the ends of justice, but appellant
does not argue that we should invoke those exceptions in this case. See e.g., Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail oneself of
the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not
that a miscarriage might have occurred.”). We do not consider, sua sponte, a “miscarriage of
justice” argument under Rule 5A:18. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589
S.E.2d 444, 448 (2003) (en banc).
We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407
S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare of Richmond, 231 Va. 277, 280,
2
Appellant cites Haugen v. Shenandoah Valley Dep’t of Social Services, 274 Va. 27, 645
S.E.2d 261 (2007), for the proposition that she was not required to object, because of the drastic
nature of terminating parental rights. We conclude that Haugen is inapposite to this appeal.
Haugen was incarcerated and attempted to participate in a termination hearing by phone. Prison
officials required Haugen to end the phone call before the hearing had concluded, and the trial
court proceeded without her and took testimony from two other witnesses. Id. at 30, 546 S.E.2d
at 263. In the case before us, nothing in the record indicates that appellant was prevented from
attending the termination hearing, other than by her lack of transportation. Further, nothing in
the record indicates a timely and specific objection to the circuit court proceeding in absentia.
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343 S.E.2d 70, 72 (1986)). However, in this case, appellant did not preserve her argument for
appeal, nor has she shown that any miscarriage of justice occurred.
CONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court.
Affirmed.
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