Hawks v. Dinwiddie Department of Social Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
PAMELA J. HAWKS, A/K/A PAMELA J. WALKER
OPINION BY
v. Record No. 2633-96-2 JUDGE LARRY G. ELDER
JULY 15, 1997
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
James F. D'Alton, Jr., Judge
Linwood T. Wells, III, for appellant.
James H. Ritchie, Jr., for appellee.
Pamela J. Hawks (mother) appeals the trial court's order
terminating her residual legal rights to remain the parent of her
son, James Leroy Walker (child). She contends that the trial
court erred when it concluded that child had not reached an "age
of discretion" and did not allow her to secure his presence in
court so that he could express his opinion on the termination
proceeding. For the reasons that follow, we reverse and remand.
I.
FACTS
On July 26, 1989, after being incarcerated, mother signed an
entrustment agreement granting custody of child to the Dinwiddie
County Department of Social Services (department). Mother was
released from incarceration in 1992. After several failed
attempts to permanently reunite mother and child, in January,
1996, the department filed a petition seeking the termination of
mother's residual parental rights. A juvenile and domestic
relations court terminated mother's residual parental rights in
June, 1996, and mother appealed to the circuit court (trial
court).
The trial court held a hearing on the department's petition
on September 17, 1996. The child was not present at the hearing,
and mother moved for a continuance so that he could be present to
testify. Mother argued that child had reached an "age of
discretion" and that under Code § 16.1-283(E) the trial court
should grant him an opportunity to object to the termination
proceeding.
Before deciding mother's motion, the trial court heard
evidence on the issue of whether child had attained an "age of
discretion." Dorthea Townes, a senior social worker with the
department, testified that she had been involved with mother's
and child's case since its inception. She testified that the
child is eleven and one-half years of age and that he is smart,
bright, "very good mannered," and "does well [talking] with
adults." She testified that child "thinks more like an 11-year-
old, not like an older child." She testified that child had
problems completing assignments in school during the previous
year and had been held back to repeat the fifth grade. She also
testified that child has been diagnosed with hyperactivity and
depression and currently received therapy and medication for
these conditions. She testified that she had met with child
approximately four times since the beginning of the termination
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proceeding and had explained to him "why we were coming to court
and the decisions that the judge makes." She testified that
child was capable of explaining to the trial court his feelings
about his mother.
Michelle L. Ferris, child's guardian ad litem, also
testified on the issue of whether child had reached the "age of
discretion." She testified that she met with child several times
during the proceedings and that their last meeting took place six
months before the termination hearing. She testified:
We discussed all of the proceedings. He will
tell you how he feels about his mother and,
you know, there is no doubt that he will tell
you that he loves her. He will tell that to
Mrs. Townes. He will tell that to anybody.
He also will tell you, though, that he
understands she cannot take care of him. And
I think in making that statement that shows a
level of maturity on his part to recognize
that he doesn't blame his mother for that, he
just accepts it.
She also testified that child appears to be "normal" for his age.
She concurred with the opinion of Amy R. Gilbert, child's
psychological counselor, that child needs a "nurturing stable
structuring environment" to cope with his problems in school.
A report written by Ms. Gilbert was also made part of the
record. In the report, Ms. Gilbert stated that child suffered
from depression "related to his relationship" with mother. She
wrote that child exhibited "attention seeking" behavior that
stemmed from his lack of nurturing in his early years. At his
foster parents' home, child had "sneaked" food from the kitchen
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and hidden it under his pillow and had "taken money and toys"
from his foster parents and other children. She opined that
child will need continued psychiatric treatment "to deal with his
depression related to these abandonment issues."
At the conclusion of the testimony, the trial court
concluded that child had not reached an "age of discretion" and
denied mother's motion for a continuance to secure child's
presence. It reasoned that:
I think [Code § 16.1-283(E)] uses the age of
14 for a reason and I think in light of the
history of this child, 11, who is
experiencing some psychological, emotional
problems, is not on grade at school, has not
exhibited any tendencies to make him older
than his years, I think that would all have
to be taken into consideration in determining
whether he was at the age of discretion
. . . . I think that he at this age -- it
would have to be something here to indicate
that he is extraordinary and older than most
children at 11 and able to comprehend and
appreciate the circumstances. I do not find
that from the record.
(Emphasis added). The trial court proceeded to hear evidence and
ordered the termination of mother's residual parental rights.
II.
AGE OF DISCRETION
Mother contends that the trial court erred when it refused
to allow her to secure child's presence in court so that he could
state his opinion regarding the termination proceeding.
Specifically, she argues that the trial court erred when it
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concluded that child had not reached an "age of discretion" that
would have empowered him to block the termination hearing under
Code § 16.1-283(E). We agree.
Code § 16.1-283 establishes the procedures and grounds
pursuant to which a court may order the termination of residual
parental rights. The section contains a "child preference
clause" that limits the power of a court to terminate parental
rights in certain circumstances. Code § 16.1-283(E) states:
Notwithstanding any other provisions of this
section, residual parental rights shall not
be terminated if it is established that the
child, if he is fourteen years of age or
older or otherwise of an age of discretion as
determined by the court, objects to such
termination.
(Emphasis added). A child who falls under one of the classes of
children described in the statute "must be afforded a meaningful
opportunity to object" to the proceeding to terminate the
residual parental rights of his or her parent. Deahl v.
Winchester Dept. of Social Services, 224 Va. 664, 676, 299 S.E.2d
863, 869 (1983).
In cases in which the testimony of a child younger than
fourteen is sought, the determination of whether or not the child
has reached an "age of discretion" is committed to the sound
discretion of the trial court. See id. at 676, 299 S.E.2d at
869. However, if the evidence proves that a child is
"sufficiently mature to have intelligent views and wishes on the
subject" of the termination proceeding, then the trial court
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should conclude that a child who is younger than fourteen has
reached the "age of discretion." Id. at 675-76, 299 S.E.2d at
869. When determining whether a child is mature enough to have
intelligent views and wishes on the subject, the trial court
should consider all of the circumstances, including the
"capacity, information, intelligence, and judgment of the child."
Coffee v. Black, 82 Va. 567, 569-70 (1886). The trial court's
determination will be reversed on appeal only for an abuse of
discretion.
When reviewing the trial court's termination of parental
rights on appeal, we view the evidence in the light most
favorable to the prevailing party below. See Logan v. Fairfax
County Dept. of Human Development, 13 Va. App. 123, 128, 409
S.E.2d 460, 463 (1991). Where, as here, evidence is heard ore
tenus, we will not disturb the trial court's judgment unless
plainly wrong or without evidence to support it. See id.; Lowe
v. Dept. of Public Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73
(1986).
We hold that the trial court abused its discretion when it
concluded that child had not reached an "age of discretion." The
trial court based its conclusion on the finding that no evidence
in the record indicated that child was "able to comprehend and
appreciate the circumstances" of the termination proceeding. The
evidence in the record was insufficient to support this finding.
The only evidence in the record regarding child's knowledge
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and understanding of the termination proceeding indicates that he
was aware of its existence and understood its ramifications. Ms.
Townes testified that child was aware of both the juvenile and
domestic relations court's decision terminating mother's parental
rights and mother's decision to appeal to the trial court. She
testified that she talked with child on four separate occasions
about the termination proceeding and that she explained to him
"why we were coming to court and the decisions that the judge
makes." She also testified that child could explain to the trial
judge his feelings about his mother. Ms. Ferris testified that
she "discussed all of the proceedings" with child during her last
meeting with him and that the two had a "good meeting."
Moreover, child neither appeared before nor met with the trial
judge to discuss his understanding of the proceeding, and no
evidence indicates that child, despite his psychological and
emotional problems, was unable to comprehend the information
about the proceeding conveyed to him by Ms. Townes and Ms.
Ferris. Because the trial court based its conclusion that child
had not reached an age of discretion on a finding not supported
by the evidence, its conclusion was an abuse of discretion.
In addition, the trial court's legal analysis of the "age of
discretion" issue is somewhat confusing. Prior to hearing the
evidence on this issue, the trial court correctly recited the
test for determining whether a child has reached the "age of
discretion" set forth in Deahl. See 224 Va. at 675-76, 299
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S.E.2d at 869 (stating that a child is of the "age of discretion"
when he or she is "sufficiently mature to have intelligent views
and wishes on the subject"). However, in its analysis of the
evidence, the trial court appeared to indicate that Code
§ 16.1-283(E) required it to find that child's maturity
level equaled or exceeded that of a fourteen-year-old. The trial
court stated that "[Code § 16.1-283(E)] uses the age of 14 for a
reason" and that the test for determining whether a child under
14 had reached an age of discretion required "something [in the
record] . . . to indicate that [the child] is extraordinary and
older than most children" of his age.
However, Code § 16.1-283(E) does not include such a
requirement. Indeed, the statute, as construed in Deahl,
prohibits a trial court from basing its determination of whether
a child has reached the "age of discretion" solely on
presumptions regarding the child's age. Instead, the focus of
the inquiry is whether the child, regardless of how old he or she
may be, is mature enough to intelligently consider the
circumstances and ramifications of the termination proceeding.
The Deahl test is consistent with the general consensus among
child development theorists and researchers that the
decision-making capabilities of children develop gradually until
they reach an adult level in their mid-teens but that the pace of
development is dynamic and varies from child to child based on
experience. See Wallace J. Mlyniec, A Judge's Ethical Dilemma:
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Assessing a Child's Capacity to Choose, 64 Fordham L. Rev. 1873,
1878-85 (1996) (summarizing current theory and research on child
development). Thus, Code § 16.1-283(E) requires an assessment of
the particular child's circumstances, including his or her
capacity, information, intelligence, and judgment, in order to
determine whether that child possesses sufficient maturity to
have intelligent views and wishes on the termination of his or
her parent's parental rights. See Deahl, 224 Va. at 675-76, 299
S.E.2d at 869; Coffee, 82 Va. at 569-70.
For the foregoing reasons we reverse the order of the trial
court ordering the termination of mother's residual parental
rights and remand for proceedings consistent with this opinion.
Reversed and remanded.
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