COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Malveaux, Athey and Senior Judge Petty Argued by videoconference
KIMBERLY J. PLASTER, SOMETIMES KNOWN AS KIMBERLY J. ELY MEMORANDUM OPINION* BY v. Record No. 1168-24-3 JUDGE MARY BENNETT MALVEAUX DECEMBER 3, 2024 WISE COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WISE COUNTY Thomas W. Baker, Judge
Melanie B. Salyer (The Salyer Law Firm, PLLC, on brief), for appellant.
Jeremy B. O’Quinn (Adrian J. Collins, Guardian ad litem for the minor child; O’Quinn Law; Adrian Collins Law Office, PC, on brief), for appellee.
The Wise County Juvenile and Domestic Relations District Court (“JDR court”) entered
orders terminating the residual parental rights of Kimberly J. Plaster (“mother”) and approving a
foster care goal of adoption. Mother appealed the JDR court’s orders to the circuit court, which
ordered her appeals withdrawn upon her failure to appear for trial. On appeal to this Court,
mother argues the circuit court erred by denying her motion for a continuance and granting the
motion of the Wise County Department of Social Services (“DSS”) to treat her appeal as
withdrawn. For the following reasons, we find no error and affirm the circuit court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. BACKGROUND1
“On appeal from the termination of parental rights, this Court is required to review the
evidence in the light most favorable to the party prevailing in the circuit court.” Simms v.
Alexandria Dep’t of Cmty. & Hum. Servs., 74 Va. App. 447, 452 (2022) (quoting Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018)). Here, because DSS was the prevailing
party, we recite the evidence and all reasonable inferences flowing from it in the light most
favorable to DSS. See Joyce v. Botetourt Cnty. Dep’t of Soc. Servs., 75 Va. App. 690, 695
(2022).
Mother is the biological parent of M.L., who was born in October 2017. On April 20,
2021, M.L. was taken into DSS’s custody after the JDR court found that M.L. had been abused
or neglected. On November 1, 2022, the JDR court conducted a hearing on DSS’s petition to
terminate mother’s residual parental rights.2 The JDR court found that mother lacked
employment, a known source of food, and stable housing, and that she was uncooperative and
“no drug screen can be done.” Additionally, mother had health problems that prevented her from
being able to care for M.L. Consequently, the JDR court terminated mother’s residual parental
rights after concluding that notwithstanding the best efforts of supporting agencies, she had been
unwilling or unable, without good cause, to substantially remedy within 12 months the
conditions that had led to M.L.’s placement in care. See Code § 16.1-283(C)(2) (permitting
1 The record in this case was sealed, but the appeal necessitates unsealing relevant portions of the record to resolve the issues raised by mother. Evidence and factual findings below that are necessary to address those issues are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). In addition, we use initials, rather than the minor child’s name, to protect their privacy.
Prior to the hearing, mother’s attorney was appointed her guardian ad litem due to 2
mother’s incarceration. The JDR court subsequently reappointed mother’s attorney as guardian ad litem based on the condition of mother’s mental health. -2- involuntary termination of residual parental rights upon a finding of such circumstances).
Mother appealed to the circuit court.
While mother’s termination appeal was pending in the circuit court, DSS filed a foster
care plan in the JDR court with a primary goal of adoption for M.L. DSS noted M.L.’s various
health conditions, including hydrocephalus, macrocephalus, and a genetic disorder that required
attention, and that M.L. had been placed in a therapeutic foster home where she “experience[d]
normalcy” and was “comfortable and adjusted to her surroundings.” DSS also noted that mother
had appealed the termination of her residual parental rights and that she had been “court ordered
into a mental health facility due to a non-related criminal charge.” On February 6, 2024, the JDR
court approved the foster care plan with a goal of adoption. Mother appealed the foster care
review order to the circuit court.
The circuit court set an April 11, 2024 hearing date for both matters appealed by mother.3
But on April 11, “[a]t the outset of the Hearing, the [c]ourt called the case and [mother] was not
present. The [c]ourt ordered the bailiff to call in the hallway to see if [mother] happened to be
outside the Courtroom and the bailiff was also unable to locate [mother].” Counsel for mother
informed the circuit court that mother had telephoned her office, reported she was sick, and
stated she could not appear for the hearing. The court then “attempted to make contact with
[mother] at the number she had given her counsel and was unable to reach [mother].”
Upon going on the record, the court noted mother’s absence, her reported illness, and that
“she’s not responding to us on the phone,” before asking counsel for mother to address the
situation. Counsel for mother replied that mother
3 The circuit court initially set a January 25, 2023 hearing date for mother’s appeal of the termination of her residual parental rights. No hearing took place on that date, and the record suggests that the matter was continued because at that time, mother was being evaluated for her competency to stand trial in an unrelated criminal matter. -3- called my office very close to th[e] time [set for the hearing] and indicated that she will not be here today, that she has an upper respiratory infection. My office provided [me] the number that [mother] called from. I have texted my office to try to call [mother] back and to call the number that [she] just called [from]. And hopefully [my colleague] will let me know if he gets a hold of her. But we are asking for a continuance. I believe this is, I don’t know if it’s technically the first setting but I think it might be the second.
Counsel for DSS objected to the motion and moved the court to “dismiss [mother’s]
appeal,” citing as authority for this procedure Code § 16.1-106.1. That statute provides, in
pertinent part, that “[i]f a party who has appealed a judgment or order of a district court fails to
appear in circuit court . . . on the trial date, the circuit court may, upon the motion of any party,
enter an order treating the appeal as withdrawn and disposing of the case.”4 Code
§ 16.1-106.1(D). Counsel for DSS noted that “it was explained to [mother] in depth when the
court set this . . . that this trial would happen today” and that “apparently [mother] can call and
say she has an upper respiratory infection but she can’t answer the phone now.” Counsel for
DSS further noted that at that point, M.L. had been in foster care for nearly three years but
mother had never sought visitation with M.L. during those periods when she was not
incarcerated. M.L.’s guardian ad litem opposed mother’s motion for a continuance and joined in
DSS’s motion, stating “we all would like for a person to have their day in court” but that the
guardian’s “interest is in the child hav[ing] stability.”
The circuit court granted DSS’s motion, thereby implicitly denying mother’s motion for a
continuance. The court noted that counsel for mother had “been in this case for a long time” and
experienced “a lot of hard dealings with [mother].” Ultimately, the court found that mother “has
4 An additional subsection of the statute makes clear that this provision extends even to matters appealed from juvenile and domestic relations district courts to the circuit courts. See Code § 16.1-106.1(F). -4- failed to follow up on her case.”5 The court entered a final order ordering that mother’s appeal
be withdrawn, reinstating the previous orders of the JDR court terminating mother’s residual
parental rights and approving the foster care plan with a goal of adoption, and remanding all
further matters to the JDR court.
This appeal followed.
II. ANALYSIS
A. Motion for a Continuance
Mother argues the circuit court abused its discretion when it denied her motion for a
continuance, and that “therefore, [she] was prejudiced as her due process rights to present her case
and parent her child were violated.”
“The decision to grant a motion for a continuance is within the sound discretion of the
circuit court and must be considered in view of the circumstances unique to each case.” Haugen
v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007). A court’s ruling on such a
motion “will be rejected on appeal only upon a showing of abuse of discretion and resulting
prejudice to the movant. Additionally, in the application of these principles, we will be guided
by [the] holding over a century ago in Myers v. Trice, 86 Va. 835, 842 (1890).” Id. In that case,
our Supreme Court held that
the discretionary power of the court [should be] exercised with caution; but, if there is no sufficient reason to induce the belief that the alleged ground of the motion [for continuance] is feigned, a continuance should be granted, rather than to seriously imperil the just determination of the cause by refusing it.
Myers, 86 Va. at 842. Of further relevance here, a “circuit court’s factual findings ‘will not be
disturbed on appeal unless they are plainly wrong or without evidence to support them.’” Carter
5 Although counsel for mother did not object to the circuit court’s rulings, the court nonetheless stated that it would “note [mother’s] objection[s].” Counsel for mother also signed the circuit court’s final order “Seen and Objected.” -5- v. Wake Forest Univ. Baptist Med. Ctr., 303 Va. 135, 144 (2024) (quoting Collins v. First Union
Nat’l Bank, 272 Va. 744, 749 (2006)).
As an initial matter, we hold that mother failed to preserve her due process arguments
alleging prejudice because she never made any due process arguments to the circuit court. See
Rule 5A:18; Maxwell v. Commonwealth, 287 Va. 258, 264-65 (2014) (noting that “Rule 5A:18
contains the contemporaneous objection rule applicable to the Court of Appeals” and that the
purpose of the rule “‘is to avoid unnecessary appeals by affording the trial judge an opportunity
to rule intelligently on objections’” (quoting State Highway Comm’r v. Easley, 215 Va. 197, 201
(1974))); Pui Ho v. Rahman, 79 Va. App. 677, 688 (2024) (“To preserve an issue for appeal, the
objecting party must state the objection and its grounds with specificity.” (emphasis added));
Hicks v. Commonwealth, 71 Va. App. 255, 265-66 (2019) (“This rule applies even to
constitutional claims.”).
Rule 5A:18 does contain exceptions “for good cause shown or to enable this Court to
attain the ends of justice,” and here, mother seeks to invoke the “good cause” exception. She
contends there is good cause to consider her due process arguments because her “fundamental
right to parent her child was taken from her causing a permanent separation of the natural family
unit.” But “‘“[g]ood cause” relates to the reason why an objection was not stated at the time of
the ruling.’ When a [party] has ample opportunity to bring [her] due process claim to the trial
court’s attention but fails to do so, the good cause exception does not apply.” Pope v.
Commonwealth, 60 Va. App. 486, 508 (2012) (quoting Campbell v. Commonwealth, 14 Va. App.
988, 996 (1992) (en banc)). Mother makes no argument on brief that she lacked opportunity to
bring her due process claims to the circuit court’s attention, and the record demonstrates she had
ample opportunities to raise such issues—at trial, or by making specific written objections to the
-6- circuit court’s order, or by filing a motion for reconsideration—and failed to do so. We therefore
reject mother’s invocation of the “good cause” exception.
We further hold that the circuit court did not abuse its discretion in denying mother’s
motion for a continuance. “An abuse of discretion occurs ‘only “when reasonable jurists could
not differ”’ as to the proper decision. This highly deferential standard of review ‘necessarily
implies that, for some decisions, conscientious jurists could reach different conclusions based on
exactly the same facts—yet still remain entirely reasonable.’” Hartley v. Bd. of Supervisors, 80
Va. App. 1, 23 (2024) (quoting Reston Hosp. Ctr., LLC v. Remley, 63 Va. App. 755, 764 (2014)).
A circuit court “has a range of choice, and its decision will not be disturbed as long as it stays
within that range and is not influenced by any mistake of law.” Id. (quoting Reston Hosp. Ctr.,
63 Va. App. at 765). “This bell-shaped curve of reasonability governing our appellate review
rests on the venerable belief that the judge closest to the contest is the judge best able to discern
where the equities lie.” Thomas v. Commonwealth, 82 Va. App. 80, 118 (2024) (en banc)
(quoting Commonwealth v. Barney, 302 Va. 84, 94 (2023)). “Suffice it to say, ‘if nothing else,’
the abuse-of-discretion standard ‘means that the trial judge’s ruling will not be reversed simply
because an appellate court disagrees.’” Reston Hosp. Ctr., 63 Va. App. at 765 (quoting Thomas
v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)).
Principally, a circuit court abuses its discretion if an error of law guides its decision, if it fails to
consider “a relevant factor that should have been given significant weight . . . [or if] an irrelevant
or improper factor is considered and given significant weight,” or if “it commits a clear error of
judgment, even [when] considering ‘all proper factors, and no improper ones.’” Diaz v.
Commonwealth, 80 Va. App. 286, 304 (2024) (quoting Landrum v. Chippenham &
Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)).
-7- Here, the record demonstrates that mother waited until “very close to th[e] time” of her
afternoon hearing before telephoning her attorney’s office to say she was sick and would not
attend. The record does not indicate that mother made any effort to contact either her counsel or
the court at any point earlier in the day to alert them to her impending non-appearance. She then
became unavailable by phone despite efforts by both the circuit court and her counsel’s office to
reach her at the number from which she so recently had called. The record also lacks any
indication that mother ever attempted to provide the court with documentation—such as a
doctor’s note or medical records—that her reported illness was so severe as to preclude her
attendance at the hearing. The circuit court found that mother’s conduct constituted a “fail[ure]
to follow up on her case,” a factual determination that, based on these facts and circumstances,
was not plainly wrong. Additionally, in denying mother’s motion for a continuance, the circuit
court heard argument on the length of time M.L. had been in foster care—almost exactly three
years at the time of the hearing—and noted that the case had been ongoing “for a long time.”
See Simms, 74 Va. App. at 464 (noting that “[t]he legislature has repeatedly expressed its intent
that it is in the best interests of children to receive a permanent placement without languishing in
the foster system”). Mother’s failure to follow up on her case and the length of M.L.’s foster
care placement were proper factors for the circuit court to consider in denying mother’s motion
for a continuance, and based on the record before us, we cannot say that no reasonable jurist
would have denied the motion as the circuit court did here. We thus hold that the circuit court
did not abuse its discretion as alleged by mother.
Mother offers several cases in urging a different result, but those cases are distinguishable
or otherwise unconvincing. In Miller v. Grier S. Johnson, Inc., 191 Va. 768, 773-74 (1951), our
Supreme Court noted that “[a] motion for a continuance, based on the absence of a party litigant
at the trial,” presents an “important question.” But the Court in Miller affirmed the denial of the
-8- defendant’s continuance motion even after, unlike mother here, the defendant provided the court
with a doctor’s certificate, holding that the defendant’s evidence of illness was “not positive or
convincing.” Id. at 774-75. Likewise, the instant case is distinguishable from Anthony v.
Commonwealth, 179 Va. 303 (1942), in which our Supreme Court found the circuit court had
abused its discretion by denying the defendant’s motion for a continuance based on the absence
of two material witnesses. The defendant in Anthony had supported his motion with an affidavit
of materiality of the witnesses, as well as two doctors’ certificates attesting it was “impossible”
for the witnesses to be present “on account of their physical condition.” Id. at 306-07. The
Supreme Court held it had been error for the circuit court to reject the certificates’ truthfulness
without further investigation where, unlike here, there was “not a scintilla of evidence in the
record tending to show” that the continuance had been sought merely to prolong the case and
“wear[] it out on the docket.” Id. at 310, 309. And mother’s reliance on Myers is likewise
misplaced, since that case makes clear that a continuance should not necessarily be granted if, as
in the instant case, there is reason to believe that the “alleged ground of the motion is feigned.”
Myers, 86 Va. at 842.
B. Withdrawal of Mother’s Appeal
Mother argues the circuit court abused its discretion when it granted DSS’s motion to
treat her appeal from the JDR court as withdrawn. She contends that after denying her motion
for a continuance, the circuit court should have proceeded to trial in her absence rather than
“dismiss[ing]” her appeal pursuant to Code § 16.1-106.1(D). Mother acknowledges the circuit
court’s statutory authority to grant DSS’s motion, but argues that “[i]n spite of the statute, due to
the serious and permanent nature of termination of parental rights matters, it appears impossible
for a trial court to reach a just decision without an evidentiary hearing.”
-9- Code § 16.1-106.1(D) provides, as noted above, that where a party who has appealed an
order from a district court to the circuit court fails to appear in the circuit court for trial, upon the
motion of any other party, the circuit court “may” enter an order treating the appeal as
withdrawn. “[T]he ‘highly permissive “may” language’ endows the trial court with discretion,”
and thus we review the circuit court’s application of the statute in the instant case for abuse of
discretion. Williams v. Boggess, 80 Va. App. 569, 576 (2024) (quoting Wal-Mart Stores E., LP
v. State Corp. Comm’n, 299 Va. 57, 70 (2020)).
Mother effectively asks this Court to craft a judicial exception to the plain statutory
language of Code § 16.1-106.1 as enacted by the General Assembly: an exception holding that
due to the grave consequences of the termination of parental rights, the provisions of
subsection (D) of the statute are inapplicable to appeals in such cases, which should proceed to
trial on the merits in the absence of the appealing party. But see, e.g., Cornell v. Benedict, 301
Va. 342, 349 (2022) (“Virginia courts presume that the legislature chose, with care, the words it
used when it enacted . . . [a] statute.” (quoting Tvardek v. Powhatan Vill. Homeowners Ass’n,
Inc., 291 Va. 269, 277 (2016))); Rush v. Univ. of Va. Health Sys., 64 Va. App. 550, 558 (2015)
(noting it is “axiomatic that when the language of a statute is unambiguous, we are bound by that
language and will not add words to the statute” that will expand its scope (quoting Seguin v.
Northrop Grumman Sys. Corp., 277 Va. 244, 248 (2009))). Mother has not preserved this
argument, because she did not contest the interpretation or applicability of Code § 16.1-106.1(D)
before the circuit court. Consequently, her argument is waived. See Rule 5A:18; Maxwell, 287
Va. at 264-65 (discussing the purpose of Rule 5A:18’s contemporaneous objection requirement);
Pui Ho, 79 Va. App. at 688 (noting that the grounds of a contemporaneous objection must be
made with specificity); Hicks, 71 Va. App. at 265-66 (noting that Rule 5A:18 applies even to bar
constitutional claims).
- 10 - Mother seeks to invoke the “ends of justice” exception to Rule 5A:18, arguing it applies
because “a miscarriage of justice occurred when the [circuit] court did not proceed with an
evidentiary hearing . . . which resulted in a loss of her fundamental right” to parent her child.
But the “ends of justice” exception does not apply here. That exception “‘is narrow and is to be
used sparingly,’ and applies only in the extraordinary situation where a miscarriage of justice has
occurred.” Conley v. Commonwealth, 74 Va. App. 658, 682 (2022) (quoting Holt v.
Commonwealth, 66 Va. App. 199, 209 (2016) (en banc)). Thus, “[i]n order to avail oneself of
the exception, [the appellant] must affirmatively show that a miscarriage of justice has occurred,
not that a miscarriage might have occurred.” Id. at 683 (second alteration in original) (quoting
Holt, 66 Va. App. at 210). And to meet that burden, mother must demonstrate that the error she
alleges “clearly had an effect upon the outcome of the case.” McDuffie v. Commonwealth, 49
Va. App. 170, 178 (2006) (quoting Brown v. Commonwealth, 8 Va. App. 126, 131 (1989)). Yet
on brief, mother merely asserts that the circuit court’s failure to proceed to trial in her absence
“resulted” in the loss of her residual parental rights. She makes no specific argument, and points
to no evidence in the record, to demonstrate that had the court proceeded to trial in her absence,
the outcome would have been any different—i.e., that she would have prevailed and retained her
residual parental rights, and thus prevented a miscarriage of justice. Without sufficient evidence
and argument from mother affirmatively demonstrating the alleged error affected her case’s
outcome and caused such a miscarriage, we reject mother’s “ends of justice” argument.
Because mother failed to preserve her argument on this issue, and because the ends of
justice exception to Rule 5A:18’s procedural bar does not apply, we reject mother’s contention
that the circuit court abused its discretion by granting DSS’s motion.
- 11 - III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
- 12 -