City of Norfolk Department of Human Services v. Candice Harris

• Court: Court of Appeals of Virginia
• Decided: August 2, 2005
• Docket: 0735051
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

CITY OF NORFOLK DEPARTMENT OF HUMAN SERVICES

v. Record Nos. 0733-05-1, 0734-05-1 and 0735-05-1

CANDICE HARRIS MEMORANDUM OPINION* PER CURIAM CITY OF NORFOLK AUGUST 2, 2005 DEPARMENT OF HUMAN SERVICES

v. Record Nos. 0736-05-1, 0737-05-1 and 0738-05-1

DONNIE LEE

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Martin, Jr., Judge

(Adam D. Melita, Assistant City Attorney, on briefs), for appellant.

No brief for appellee Candice Harris.

(Kelly B. St. Clair; St. Clair Law Firm, on brief), for appellee Donnie Lee.

The City of Norfolk Department of Human Services (DHS) appeals from a decree of the

trial court finding that DHS failed to prove “a statutory basis for termination [of the parental rights

of the appellees] by clear and convincing evidence.” On appeal, DHS contends the trial court erred

in (1) requiring evidence of abuse or neglect in order to determine whether the elements required by

either Code § 16.1-283(C)(2) or 16.1-283(E)(i) had been proven, and (2) ruling that there was no

legal basis to grant a termination of residual parental rights under either subsection. Upon

reviewing the record and briefs of the parties, we conclude that DHS failed to preserve these issues

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. in the trial court. Rule 5A:18. Accordingly, we summarily affirm the decision of the trial court.

Rule 5A:27.

DHS concedes it did not preserve the questions presented on appeal, but argues that the

good cause exception to Rule 5A:18 enables this Court to address the issues.1 We disagree.

The “good cause” exception to Rule 5A:18 will not be invoked where the appellant had

the opportunity to raise the issue at trial but did not do so. See M. Morgan Cherry & Assocs. v.

Cherry, 38 Va. App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc). DHS contends it had no

such opportunity in this case. Specifically, DHS argues:

The opportunity which might have presented itself at trial did not materialize, as the proceedings were concluded too abruptly. The opportunity which might have presented itself upon presentation of a final decree never materialized as the court, without warning, waived Rule 1:13. The opportunity to object to the written order never materialized as no final decree was ever provided or sent to the parties.

We do not accept DHS’s contentions.

At the conclusion of the trial court’s February 28, 2005 hearing, the judge gave an oral

ruling in which he stated why he was dismissing the petitions. Nothing in the record indicates

that DHS could not have voiced its objections to the oral ruling at that point. Furthermore, the

final decree commands the clerk to “send copies of this Decree to counsel for the parties . . . .”

“A court speaks only through its orders.” Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d

770, 773 (1964). Again, nothing in the record belies the veracity of the trial court’s decree, and

nothing indicates that the clerk failed to perform the command contained therein. As such,

nothing in the record demonstrates that DHS did not have the opportunity to file a petition for

rehearing or written objections to the decree.

1 DHS does not contend that the ends of justice exception to Rule 5A:18 applies. Therefore, we do not address that exception.

-2- For these reasons, we find that DHS has not demonstrated good cause for failing to

preserve the questions presented. Accordingly, we summarily affirm the decision of the trial

court. Rule 5A:27.

Affirmed.

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