Phyllis Fuller v. City of Va. Beach D.S.S.

• Court: Court of Appeals of Virginia
• Decided: July 7, 1998
• Docket: 2610971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bray and Bumgardner Argued at Norfolk, Virginia

PHYLLIS FULLER MEMORANDUM OPINION * BY v. Record No. 2610-97-1 JUDGE SAM W. COLEMAN III JULY 7, 1998 CITY OF VIRGINIA BEACH DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Alan E. Rosenblatt, Judge Curtis T. Brown for appellant.

(Leslie L. Lilley, City Attorney; Nianza E. Wallace II, Assistant City Attorney, on brief), for appellee.

Phyllis Fuller (mother) appeals the trial court's order

terminating her residual parental rights with respect to five of

her minor children. Mother contends: (1) the City of Virginia

Beach Department of Social Services (agency) did not adequately

investigate the possibility of granting custody of the children

to relatives, and (2) the trial court erred in finding that three

of the children had not reached an "age of discretion" to object 1 to the termination of mother's parental rights. Finding no

error, we affirm the trial court's ruling. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Mother also contends the agency failed to make reasonable efforts to provide her with medical and financial assistance. She did not make this claim in the trial court in arguing her motions to strike the evidence. See Rule 5A:18; Taylor v. Commonwealth, 21 Va. App. 557, 565-66, 466 S.E.2d 118, 122 (1996). Because the record does not reflect any reason to invoke the good cause or ends of justice exceptions, Rule 5A:18 precludes our review of this argument on appeal. 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, the agency in this case.

See Logan v. Fairfax County Dep't of Human Dev., 13 Va. App.

123, 128, 409 S.E.2d 460, 463 (1991). Where the evidence is

heard ore tenus, we will not disturb the trial court's judgment

unless it is plainly wrong or without evidence to support it.

See Lowe v. Dep't of Public Welfare, 231 Va. 277, 282, 343 S.E.2d

70, 73 (1986). PLACEMENT OF CHILDREN WITH RELATIVES

Code § 16.1-283(A) provides, in pertinent part, that before

terminating parental rights the court "shall give consideration

to granting custody to relatives of the child, including

grandparents." "Before termination of parental rights by the

court, the agency seeking termination has an affirmative duty to

investigate all reasonable options for placement with immediate

relatives." Sauer v. Franklin County Dep't of Soc. Servs., 18

Va. App. 769, 771, 446 S.E.2d 640, 641 (1994). However, the

agency is not required to investigate the home of every relative

as a potential placement for the children. See id. at 771, 446

S.E.2d at 642.

Here, the evidence established that the agency investigated,

and ultimately rejected, the homes of the children's father and

aunt for potential placement. Both the mother and the aunt told

the social worker assigned to mother's case that no other

- 2 - relatives were interested in taking custody of the children.

Under these circumstances, the agency fulfilled its duty to

investigate immediate relatives as possible sources for placement

of the children in accordance with Code § 16.1-283(A).

AGE OF DISCRETION

Code § 16.1-283(E) states that "residual parental rights

shall not be terminated if it is established that the child, if

he is at least 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 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." Hawks v. Dinwiddie Dep't of Soc.

Servs., 25 Va. App. 247, 253, 487 S.E.2d 285, 288 (1997). The

determination of whether the child has reached the "age of

discretion" is committed to the sound discretion of the trial

court. Id.; Deahl v. Winchester Dep't of Soc. Servs., 224 Va.

664, 676, 299 S.E.2d 863, 869 (1983).

Mother claims the trial court erred in finding that three of

her children had not reached an "age of discretion" to object to

termination of her parental rights. We disagree. The trial

court heard testimony from each of the three children and found

"no evidence . . . which proves that any of [the children] are

mature enough to have intelligent views of the subject of

termination." Two of the children expressly indicated that they

- 3 - did not understand the nature of the proceeding. When the third

child was asked if she understood the purpose of the hearing, she

merely responded "my mom . . . ain't do what she was supposed to

do." On this record, we cannot say that the trial court abused

the broad discretion accorded by the legislature to determine

that the children had not attained the "age of discretion."

For the foregoing reasons, we affirm the trial court's

termination of mother's residual parental rights.

Affirmed.

- 4 -