COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PAULA COOK MEMORANDUM OPINION * v. Record No. 1385-99-2 PER CURIAM MARCH 7, 2000 PETERSBURG DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Judge
(Judy L. August, on brief), for appellant. Appellant submitting on brief.
(Joan M. O'Donnell, on brief), for appellee. Appellee submitting on brief.
Paula Cook appeals the decision of the circuit court
terminating her parental rights to her children. On appeal, Cook
contends that the trial court erred by (1) failing to find that
Cook's minor children were of an age of discretion and failing to
consider their wishes concerning the termination of her parental
rights; (2) considering the recommendation of the guardian ad
litem; (3) denying Cook due process by failing to hold the
termination hearing within ninety days of the perfecting of the
appeal, as required under Code § 16.1-296(D); and (4) finding that
clear and convincing evidence supported the termination of her
parental rights. Upon reviewing the record and briefs of the
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. parties, we conclude that this appeal is without merit.
Accordingly, we affirm the decision of the trial court.
On appeal, under familiar principles, we view the evidence
and all reasonable inferences in the light most favorable to the
Petersburg Department of Social Services (DSS), the party
prevailing below. See Martin v. Pittsylvania County Dep't of
Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
"Where, as here, the court hears the evidence ore tenus, its
finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Id. "In matters of a child's welfare, trial courts are vested
with broad discretion in making the decisions necessary to guard
and to foster a 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) (citations omitted).
When addressing matters concerning a child, including the termination of a parent's residual parental rights, the paramount consideration of a trial court is the child's best interests. 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."
Id.
- 2 - Consideration of the Wishes of the Children
Code § 16.1-283(H) 1 provides:
[N]otwithstanding 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.
Cook contends that her children had reached an age of discretion
and that the trial court erred by failing to consider their
wishes. We find no merit in this contention.
All of Cook's five children were under twelve years old at
the time of the circuit court hearing. "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." Hawks v. Dinwiddie Dep't of Soc. Servs., 25 Va. App.
247, 253, 487 S.E.2d 285, 288 (1997). A child has reached the
age of discretion if the evidence proves that he or she is
"sufficiently mature to have intelligent views and wishes on the
subject of the termination proceeding." Id. The trial court
questioned each child and determined that none were sufficiently
mature to have reached an age of discretion. While the eldest
child expressed the desire that Cook's rights not be terminated,
the trial court had the opportunity to speak directly with the
1 Following the 1999 amendments, this section is now codified at Code § 16.1-283(G).
- 3 - child and to assess the maturity displayed in the child's
responses. The child displayed faulty understanding of the
consequences of the termination of Cook's parental rights, as he
indicated he wanted to see his other siblings, only one of whom
lives with Cook. The record demonstrates that the younger
siblings were also not mature enough to understand the
ramifications of the termination proceedings.
"The trial judge is uniquely qualified to appraise the
effect of interrogation in each individual setting, including
psychological and emotional factors. We are content to leave to
his judicial discretion the methods of approaching and resolving
this ultimate issue." Deahl v. Winchester Dep't of Soc. Servs.,
224 Va. 664, 676, 299 S.E.2d 863, 869 (1983). We find no abuse
of discretion in the trial court's assessment of the children's
maturity.
Recommendation by the Guardian ad Litem
Cook contends that the trial court erred by considering the
recommendations of the guardian ad litem that termination of her
parental rights was in the best interests of the children. Cook
quotes the statement of the guardian ad litem that he did not
have to "pay attention to burdens of proof, and presumptions and
rules of evidence, and solely have to be concerned about the
best interest of the kids." The guardian ad litem was obligated
to ensure that the best interests of the children were
adequately represented. See Code §§ 16.1-266(A) and 16.1-266.1.
- 4 - We find no indication that the guardian ad litem failed to
perform these duties.
Moreover, the decision to terminate Cook's parental rights
was a matter left to the discretion of the trial court. Even if
the recommendation of the guardian ad litem was tainted, which
we do not find, we find it insufficient grounds to vacate the
court's decision, which it made based upon its assessment of all
the testimony heard ore tenus.
Due Process
Cook contends that she was deprived of her right to due
process under the United States Constitution because her
termination hearing was not held within ninety days of the
perfecting of the appeal from the juvenile and domestic
relations district court, as set out in Code § 16.1-296(D).
"The Supreme Court has repeatedly held that 'the use of "shall,"
in a statute requiring action by a public official, is directory
and not mandatory unless the statute manifests a contrary
intent.'" Carter v. Ancel, 28 Va. App. 76, 79, 502 S.E.2d 149,
151 (1998); see Jamborsky v. Baskins, 247 Va. 506, 511, 442
S.E.2d 636, 638 (1994). The children have been in the custody
of DSS since January 1996. Cook appealed the initial
termination decision of the district court on March 6, 1998.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
PAULA COOK MEMORANDUM OPINION * v. Record No. 1385-99-2 PER CURIAM MARCH 7, 2000 PETERSBURG DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Judge
(Judy L. August, on brief), for appellant. Appellant submitting on brief.
(Joan M. O'Donnell, on brief), for appellee. Appellee submitting on brief.
Paula Cook appeals the decision of the circuit court
terminating her parental rights to her children. On appeal, Cook
contends that the trial court erred by (1) failing to find that
Cook's minor children were of an age of discretion and failing to
consider their wishes concerning the termination of her parental
rights; (2) considering the recommendation of the guardian ad
litem; (3) denying Cook due process by failing to hold the
termination hearing within ninety days of the perfecting of the
appeal, as required under Code § 16.1-296(D); and (4) finding that
clear and convincing evidence supported the termination of her
parental rights. Upon reviewing the record and briefs of the
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. parties, we conclude that this appeal is without merit.
Accordingly, we affirm the decision of the trial court.
On appeal, under familiar principles, we view the evidence
and all reasonable inferences in the light most favorable to the
Petersburg Department of Social Services (DSS), the party
prevailing below. See Martin v. Pittsylvania County Dep't of
Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).
"Where, as here, the court hears the evidence ore tenus, its
finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Id. "In matters of a child's welfare, trial courts are vested
with broad discretion in making the decisions necessary to guard
and to foster a 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) (citations omitted).
When addressing matters concerning a child, including the termination of a parent's residual parental rights, the paramount consideration of a trial court is the child's best interests. 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."
Id.
- 2 - Consideration of the Wishes of the Children
Code § 16.1-283(H) 1 provides:
[N]otwithstanding 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.
Cook contends that her children had reached an age of discretion
and that the trial court erred by failing to consider their
wishes. We find no merit in this contention.
All of Cook's five children were under twelve years old at
the time of the circuit court hearing. "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." Hawks v. Dinwiddie Dep't of Soc. Servs., 25 Va. App.
247, 253, 487 S.E.2d 285, 288 (1997). A child has reached the
age of discretion if the evidence proves that he or she is
"sufficiently mature to have intelligent views and wishes on the
subject of the termination proceeding." Id. The trial court
questioned each child and determined that none were sufficiently
mature to have reached an age of discretion. While the eldest
child expressed the desire that Cook's rights not be terminated,
the trial court had the opportunity to speak directly with the
1 Following the 1999 amendments, this section is now codified at Code § 16.1-283(G).
- 3 - child and to assess the maturity displayed in the child's
responses. The child displayed faulty understanding of the
consequences of the termination of Cook's parental rights, as he
indicated he wanted to see his other siblings, only one of whom
lives with Cook. The record demonstrates that the younger
siblings were also not mature enough to understand the
ramifications of the termination proceedings.
"The trial judge is uniquely qualified to appraise the
effect of interrogation in each individual setting, including
psychological and emotional factors. We are content to leave to
his judicial discretion the methods of approaching and resolving
this ultimate issue." Deahl v. Winchester Dep't of Soc. Servs.,
224 Va. 664, 676, 299 S.E.2d 863, 869 (1983). We find no abuse
of discretion in the trial court's assessment of the children's
maturity.
Recommendation by the Guardian ad Litem
Cook contends that the trial court erred by considering the
recommendations of the guardian ad litem that termination of her
parental rights was in the best interests of the children. Cook
quotes the statement of the guardian ad litem that he did not
have to "pay attention to burdens of proof, and presumptions and
rules of evidence, and solely have to be concerned about the
best interest of the kids." The guardian ad litem was obligated
to ensure that the best interests of the children were
adequately represented. See Code §§ 16.1-266(A) and 16.1-266.1.
- 4 - We find no indication that the guardian ad litem failed to
perform these duties.
Moreover, the decision to terminate Cook's parental rights
was a matter left to the discretion of the trial court. Even if
the recommendation of the guardian ad litem was tainted, which
we do not find, we find it insufficient grounds to vacate the
court's decision, which it made based upon its assessment of all
the testimony heard ore tenus.
Due Process
Cook contends that she was deprived of her right to due
process under the United States Constitution because her
termination hearing was not held within ninety days of the
perfecting of the appeal from the juvenile and domestic
relations district court, as set out in Code § 16.1-296(D).
"The Supreme Court has repeatedly held that 'the use of "shall,"
in a statute requiring action by a public official, is directory
and not mandatory unless the statute manifests a contrary
intent.'" Carter v. Ancel, 28 Va. App. 76, 79, 502 S.E.2d 149,
151 (1998); see Jamborsky v. Baskins, 247 Va. 506, 511, 442
S.E.2d 636, 638 (1994). The children have been in the custody
of DSS since January 1996. Cook appealed the initial
termination decision of the district court on March 6, 1998.
Her termination hearing before the circuit court was held on
April 12, 1999. The record contains no explanation for the
delay, although counsel made certain representations before the
- 5 - trial court indicating that attempts to set the hearing earlier
were unsuccessful. Cook cites no specific harm that she
suffered due to the delay. "Error which does not injuriously
affect the interest of the party complaining is not reversible."
Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App. 1178,
1186, 409 S.E.2d 16, 21 (1991). We find no merit in Cook's
assertion that, under the circumstances of this case, the
failure to hold a hearing within ninety days, without any
showing of harm, requires reversal of the termination orders.
Sufficiency of the Evidence
The trial court ruled that DSS presented clear and
convincing evidence sufficient to meet the statutory
requirements of Code § 16.1-283(C)(2). That section provides
that a parent's rights to a child placed in foster care may be
terminated if the court finds by clear and convincing evidence
that it is in the child's best interests and that
[t]he parent . . . without good cause, [has] been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child's foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end. Proof that the parent . . . without good cause, [has] failed or been unable to make substantial progress towards elimination of the conditions which led to or required continuation of the child's foster care placement in accordance with their obligations under and within the
- 6 - time limits or goals set forth in a foster care plan filed with the court or any other plan jointly designed and agreed to by the parent or parents and a public or private social, medical, mental health or other rehabilitative agency shall constitute prima facie evidence of this condition. The court shall take into consideration the prior efforts of such agencies to rehabilitate the parent or parents prior to the placement of the child in foster care.
DSS began providing services to the family in March 1995,
including services to prevent the removal of the children from
the home. In January 1996, the children were removed from
Cook's custody due to neglect. Cook was required under the
foster care plans to have substance abuse and individual
counseling, maintain stable housing and employment, and maintain
regular contact with her children. Since these five children
came into foster care, Cook moved at least six times, twice due
to eviction. Cook repeatedly required assistance with food,
clothing, and rent, and maintained sporadic contact with her
children after July 1996. Cook also repeatedly provided DSS
with inaccurate information concerning her living arrangements
and financial condition.
The evidence established that Cook completed the substance
abuse counseling and participated in individual counseling,
although her therapist indicated that she repeatedly missed
appointments and demonstrated little commitment to benefiting
from the services offered.
- 7 - At the hearing, Cook testified that she now lived with her
fiance in a home for which they paid no rent or utilities in
exchange for her care of the elderly man. Cook was unable to
say when they moved into the home. While her fiance indicated
that he loved the children, he admitted that he had never met
them before the hearing.
The trial court found that DSS proved by clear and
convincing evidence the statutory requirements of Code
§ 16.1-283(C)(2). Evidence in the record supports that
conclusion. "It is clearly not in the best interests of a child
to spend a lengthy period of time waiting to find out when, or
even if, a parent will be capable of resuming . . .
responsibilities." Kaywood v. Halifax County Dep't of Social
Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
- 8 -