Charlottesville Divorce Lawyer Rob Hagy

Lack of Engagement, Lack of Follow Through and More and More Drugs, lead to Termination of Parental Rights.

Out of Chesterfield County comes this Appeal of a Termination of Parental Rights case. 

In Cannon v. Chesterfield-Colonial Heights Department of Social Services, father appeals the Termination of Rights ruling from the Circuit Court of Chesterfield County because his motion for continuance (due to a change in his attorney three months prior) on the last day of trial was denied. Of mention, father had previously appealed the JDR termination ruling to Circuit Court. 

“The decision of whether to grant a continuance is committed to the discretion of the trial court. We will reverse ‘a trial court’s ruling on a motion for a continuance . . . only upon a showing of abuse of discretion and resulting prejudice to the movant.’” Shah v. Shah, 70 Va. App. 588, 593 (2019) (alteration in original) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)).

"Father contends that the circuit court abused its discretion by denying his motion for a continuance. We disagree".

The 2 minor children, both born into addiction, now have the opportunity to live healthy and productive lives without the interference of drugs. Again, the DSS does the hard but necessary thing and takes these very young children out of a no-win situation. A 15-month-old experiences withdrawal for 4 months! If ever you have seen a drug addicted baby in the NICU, it is a sight you do not forget. 

"When S.C. first entered foster care, she was fourteen months old and weighed only fifteen pounds. While in foster care, S.C. steadily gained weight, reaching 25.8 pounds by the time of the circuit court hearing. S.C. also completed feeding and speech therapy and was “a very active and busy little girl” according to her foster mother. D.C. experienced withdrawal symptoms for four months after being born substance exposed, however during the circuit court hearing, both children were described as “developmentally on target.”

While the appeal was denied based on appropriate legal merits, what was not denied was a chance at life for the 2 minor children who did not have the ability to detox or thrive on their own. This is another case where the best interests of the children prevail. 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

 

Richmond City Circuit Court Dismissal of Termination of Parental Rights Case is Reversed in favor of Richmond DSS!

In this termination of parental rights case re the City of Richmond Department of Social Services v. J. Wells and D. Roane (biological parents), the Circuit Court dismissed the termination petition against Ms. Wells and Mr. Roane due to the DSS not providing clear and convincing proof that the biological parents or the caretakers had actually harmed the young child. Despite rib fractures, unusual inside back of the throat injuries and wrist injuries all at under 3 months old, the father canceling follow-up hospital appointments, convincing testimonies from therapists and professionals concerned with the behavioral patterns of the parents and the lack of completion of most DSS suggested services - even after one year - the Circuit Court ruled that the child was better off with the biological parents. 

On appeal from the Richmond Department of Social Services the Court of Appeals reviews excerpts from the Circuit Court hearing and includes as part of their decision:   

"At the end of the case, the court ruled that the Department failed to carry its burden under either Code § 16.1-283(B) or (C)(2). The court determined that the Department failed to prove that mother and father were the individuals responsible for causing J.R.’s injuries, which the court considered to be a prerequisite for termination. The court cited due process concerns and stated, “In this [c]ourt, it matters who did it and when.” It found that the Department was required to present “more substantial evidence implicating each one of the persons.” The court also ruled that the Department did not prove that termination was in J.R.’s best interests. The court referred to J.R. calling mother “mom,” found that there was evidence J.R. and his biological family had a “connection,” and pointed out that the grandmothers had raised “about ten [other] children” without claims of abuse. The court further found that the child’s injuries did - 10 - not amount to a “death-like situation” and commented that “you’ve got a bruise and you’ve got fractures. And fractures are easy to occur. There are people walking down the street and get fractures or trip up and get fractures. So there’s no explanation of that fracture process.” The court also noted that father took J.R. to the skeletal survey and queried, “[W]ould somebody beat up a kid and then take him to the hospital?” Five months later, on September 20, 2021, the court entered the final order denying the Department’s petition to terminate mother and father’s parental rights and remanding the case to the JDR court.

Continuing its review of the Circuit Court's hearing and dismissal of the termination, the Court of Appeals boldly disagrees on every issue with the City of Richmond Circuit Court in reaching its decision and ultimately stated: 

 Based on the record before us and applicable law, we are compelled to hold that the court’s decision to dismiss the termination petition was plainly wrong and without evidence to support it because the Department’s evidence established the elements of Code § 16.1-283(B) by clear and convincing evidence. Accordingly, we reverse the judgment of the circuit court, terminate mother and father’s parental rights under Code § 16.1-283(B), approve the Department’s foster care goal of adoption, and remand the matter to the circuit court for any other further proceedings as necessary. See Code § 16.1-283(F).

Local courts do not always get it right. This one did not, and the Appeal prevailed providing help and hope for this child. The Rule of Law stands as your best advocate and an Appeal is a legitimate option! 

 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Mother Understood Nature And Legal Consequences of Consent to Adoption, Could Not Overturn the Adoption.

In the case of Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith and Link Monroe Smith, the Virginia Court of Appeals, in a published opinion, held that  there was no error in trial court’s finding that Code § 63.2-1216 is not unconstitutional as applied to the facts of this case where mother did not lack understanding of the nature and legal consequences of her consent to the adoption of her child by her grandparents.

Mother and father had a child. The father was abusive and he and mother divorced.  Mother was sentenced to four years incarceration and asked her parents to assume custody of the child. Approximately 2 years later and while the mother was still incarcerated, the maternal grandparents petitioned the court to adopt the child. The adoption was initiated to prevent the abusive father from getting custody of the child. Mother executed a consent to adoption form and shortly thereafter a final order of adoption was entered. Mother was subsequently released from prison, petitioned for custody and that petition was denied due to the adoption order. Mother then sought to set aside the adoption. Maternal grandmother demurred stating that Code Section 63.2-1216 foreclosed mother’s challenge to the adoption.

The trial court agreed with mother that, since she was incarcerated, she should have had a guardian ad litem appointed pursuant to Code Section 8.01-9 and that her rights to due process and equal protection had been violated by the failure to appoint a guardian. However, the trial court ruled that Code Section 63.2-1216 was not unconstitutional as applied to her case. Mother appealed.

The question is whether, assuming arguendo that the circuit court was correct with respect to the issue of mother’s entitlement to a guardian ad litem and the violation of mother’s rights, the facts of this case support mother’s argument that she did not understand the nature and consequences of her consent and the adoption and thus was denied due process.

The VCA held that the evidence supported the trial court’s finding that there was no misunderstanding of the nature of the adoption.

-Mother signed the consent to adoption.

-Mother corresponded with the adoption attorney about the adoption.

-The adoption attorney spoke with the maternal grandparents about the finality of the adoption and neither of them indicated that they did not understand that the adoption would be anything else other than final.

-The maternal grandfather had several phone conversations with mother where the words adoption were used.

-The maternal grandmother talked to the mother over the phone about the adoption and never told mother that the adoption would be temporary.

-Mother knew the objectives of the adoption were to protect the child from the abusive father.

-There had been a previous custody proceeding involving the parties so evidence supports a reasonable inference that mother knew the adoption was a new legal arrangement that went beyond what mere custody provided.

-Since mother was in favor of the adoption to prevent child from going to abusive father, it was difficult to conclude that mother didn’t know the permanency of the adoption wouldn’t apply to her as well.

-Mother saw the adoption order entered in 2011 when she returned from prison, but she waited until 2015 when the maternal grandparents went through a divorce to file for custody and then another three years to file the petition to set aside the adoption.

-Therefore “it is clear from the totality of the facts supports a finding that mother did not lack understanding of the nature and legal consequences of her consent and the adoption. The statute at issue here, Code Section 63.2-1216, provides that six months after the date of entry of an order of adoption that has not been appealed, that order becomes ‘final for all purpose’ and ‘shall not be subject to attack…for any reason,’ including those alleged here.’”

-Rob Hagy

Mother Could Not Overturn Adoption Where She Knew The Nature and Legal Consequences of Her Consent to Adoption.

On October 20, 2020, in the case of Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith and Link Monroe Smith, the Virginia Court of Appeals, in a published decision, upheld a trial court's finding that Code § 63.2-1216 is not unconstitutional as applied to the facts of this case where appellant did not lack understanding of the nature and legal consequences of her consent to the adoption of her child by appellees.

Mother and father had a child. The father was abusive and he and mother divorced.  Mother was sentenced to four years incarceration and asked her parents to assume custody of the child. Approximately 2 years later and while the mother was still incarcerated, the maternal grandparents petitioned the court to adopt the child. The adoption was initiated to prevent the abusive father from getting custody of the child. Mother executed a consent to adoption form and shortly thereafter a final order of adoption was entered. Mother was subsequently released from prison, petitioned for custody and that petition was denied due to the adoption order. Mother then sought to set aside the adoption. Maternal grandmother demurred stating that Code Section 63.2-1216 foreclosed mother’s challenge to the adoption.

The trial court agreed with mother that, since she was incarcerated, she should have had a guardian ad litem appointed pursuant to Code Section 8.01-9 and that her rights to due process and equal protection had been violated by the failure to appoint a guardian. However, the trial court ruled that Code Section 63.2-1216 was not unconstitutional as applied to her case. Mother appealed.

The question is whether, assuming arguendo that the circuit court was correct with respect to the issue of mother’s entitlement to a guardian ad litem and the violation of mother’s rights, the facts of this case support mother’s argument that she did not understand the nature and consequences of her consent and the adoption and thus was denied due process.

The Virginia Court of Appeals held that the evidence supported the trial court’s finding that there was no misunderstanding of the nature of the adoption"

-Mother signed the consent to adoption.

-Mother corresponded with the adoption attorney about the adoption.

-The adoption attorney spoke with the maternal grandparents about the finality of the adoption and neither of them indicated that they did not understand that the adoption would be anything else other than final.

-The maternal grandfather had several phone conversations with mother where the words adoption were used.

-The maternal grandmother talked to the mother over the phone about the adoption and never told mother that the adoption would be temporary.

-Mother knew the objectives of the adoption were to protect the child from the abusive father.

-There had been a previous custody proceeding involving the parties so evidence supports a reasonable inference that mother knew the adoption was a new legal arrangement that went beyond what mere custody provided.

-Since mother was in favor of the adoption to prevent child from going to abusive father, it was difficult to conclude that mother didn’t know the permenancy of the adoption wouldn’t apply to her as well.

-Mother saw the adoption order entered in 2011 when she returned from prison, but she waited until 2015 when the maternal grandparents went through a divorce to file for custody and then another three years to file the petition to set aside the adoption.

Therefore “it is clear from the totality of the facts supports a finding that mother did not lack understanding of the nature and legal consequences of her consent and the adoption. The statute at issue here, Code Section 63.2-1216, provides that six months after the date of entry of an order of adoption that has not been appealed, that order becomes ‘final for all purpose’ and ‘shall not be subject to attack…for any reason,’ including those alleged here.’”

Father Had Standing to Contest Adoption Because He Timely Registered With the Virginia Birth Father Registry.

On July 14, 2020, in the case of John Berry v. Mary Barnes, Tricia Ann Scanlon and Donald Edward Scanlon, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in finding appellant lacked standing where a man may timely register with the Virginia Birth Father Registry within ten days of a child’s birth regardless of whether he has been notified previously of the Registry pursuant to Code 63.2-1250(F).

In this case, unmarried parents conceived a child. Father accompanied mother to two adoption agencies for more information about adoption but objected at both agencies.  One of the agencies connected mother with a prospective adoptive couple and worked to facilitate the adoption. That agency sent father a letter informing father of the Virginia Birth Father Registry (“VBFR”) as required by Virginia Code Section 63.2-1250(F).

Thereafter, the adoptive parents filed a petition in the juvenile and domestic relations district court requesting that the court accept mother’s consent pursuant to Code Section 63.2-1233. The same day as the filing father received notice that he was registered with the VBFR. The child was born two days later. At the next hearing, the prospective adoptive couples petition was heard. The juvenile court said that although father had registered, he had not “timely” registered.

Father appealed to circuit court. In response, mom revoked her consent to the adoption. A hearing was scheduled in circuit court.  The prospective adoptive parents filed a plea in bar alleging father lacked standing. The circuit court agreed with the prospective adoptive parents finding that father lacked standing to bring the appeal per the VBFR Act.

This appeal followed.

This was a parental placement adoption. Where a birth mother places a child for adoption, consent to adoption must also be executed “by any man who is an acknowledged father under Section 20-49.1, is an adjudicated father under Section 20-49.8, is a presumed father…, or has registered with the” VBFR.

Consent of the birth father is not required when birth father is not married to the mother of the child at the time of the child’s conception or birth if the putative father named by the birth mother did not register with the VBFR.

A man timely registers when the registration “is received by the Department [of Social Services] within (i) ten days of the child’s birth or (ii) the time specified in Subsection C or F.” Virginia Code Section 63.2-1250(E). According to F, “[r]egistration is timely if the signed registration form is received by the Department [of Social Services] within 10 days of personal service of the written notice or within 13 days of the certified mailing date of the written notice.  The person service or certified mailing may be completed either prior to or after the birth of the child.”

Father had standing because he did timely register. Father filed within ten days pursuant to 63.2-1250(E)(i). The child was born on August 28, 2019. The father had until September 7, 2019 to register. The father sent to the DSS the required form dated August 21, 2019, and received on August 26, 2019, a return letter from the Department notifying him that his “name ha[d] been entered into the” VBFR.  Therefore, the father was timely registered before the consent hearing.  That Code section provides to distinct circumstances in which registration with the VBFR is timely.  Both parties agree that father filed within ten days of the child’s birth which is alternative (i), but did not file within the time specified in subsection F, which is alternative (ii).

The trial court erred because it held that once the time period began to run pursuant to alternative (ii), the father couldn’t timely register using alternative (i). In essence, the court interpreted the statute to say a registration is timely if it is completed “by the earlier of alternative (i) or (ii),” but the statute is clear.

Charlottesville Adoption and Custody and Visitation Lawyer Rob Hagy: Mother's Adoption Terminated Grandmother's Visitation Rights with Granddaughter.

In the case of Scudder v. Ramsey, the Arkansas Supreme Court ruled that adult mother's adoption by her relatives terminated visitation rights that maternal grandmother had been granted with mother's child.  The visitation rights of grandmother were derived from mother, her biological child, because they sprung from her relationship as child's grandmother, but upon mother's adoption, statute effected the termination of all legal relationships between adopted individual and her biological relatives, such that they were strangers for all purposes.

-Rob Hagy of Rob Hagy Law, Charlottesville Adoption and Custody and Visitation Lawyer.  For help with issues like these or other adoption and custody and visitation issues, please contact me at 434.293.4562 or email me at [email protected].

 

 

We Have Released Our New Fall "Family Matters" Newsletter!

This issue of Family Matters contains an article about snooping on your spouse and how legally dangerous that can be. We have also included an article about a Virginia Supreme Court case recognizing for the first time in Virginia the tort of tortious interference with parental rights in a case where a man's child was adopted without his knowledge or consent.

-Rob Hagy

Charlottesville Divorce Lawyer

Charlottesville Adoption Lawyer

Charlottesville Interference with Parental Rights Lawyer

N.J. Superior Court Denies Atheist Parents Right to Adopt.

Time.com had an interesting article this morning about a N.J. Superior Court Judge's decision to deny a couple's adoption petition citing the the New Jersey state constitution which declares that "no person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience." The judge reasoned that "the child (a toddler) should have the freedom to worship as she sees fit, and not be influenced by prospective parents who do not believe in a Supreme Being." The judge raised this issue sua sponte.  The case has been appealed to N.J. Supreme Court. 

Guatemala Alters Adoption Rules

From MSNBC.COM:

"As early as this week, the legislature is expected to debate new rules to eliminate potential fraud in Guatemala's adoption process, which until now has been run from beginning to end by notaries who work with birth mothers, determine if babies were surrendered willingly, hire foster mothers and handle all the paperwork.

These notaries charge an average of $30,000 for children delivered in about nine months — record time for international adoptions. The process is so quick that one in every 100 Guatemalan children now grow up as an adopted American.

The small Central American country sent 4,135 children to the U.S. last year, making it the largest source of babies for American families after much-bigger China.

The adoptions are a $100 million a year industry for notaries.

Government agency will be involved
But the system violates The Hague Convention on Intercountry Adoptions, a treaty designed to prevent fraudulent adoptions. Both Guatemala and the United States have agreed to observe the treaty starting next year. Among other things, a government agency must oversee the process and determine if the child was legally surrendered by the birth mother.

Most agree the new rules will reduce the number of Guatemalan adoptions because the government doesn't have the resources to manage all the cases that notaries have handled and because of extra inspections intended to guarantee that each child is being given up willingly.

What this means for the Kerrs and other would-be parents whose adoptions are currently in process remains unclear.

The United States is pushing for a transition period so that the 3,700 adoptions now under way can be concluded under the existing law.

But scrutiny of the pending adoptions has turned up problems in about 1,000 cases, said Victor Mejicanos, a federal official who oversees adoptions.

"We have everything from altered birth certificates to birth mothers who change their minds and want their babies back," Mejicanos said.

And with only seven investigators, who deal with everything from parental neglect to domestic violence and other family issues, Mejicanos predicts adoptions will take much longer now.

Anticipating the new rules, the Guatemalan government has begun cracking down. In one high-profile case, it closed down the Casa Quivira adoption agency and took custody of 46 children. Just 10 of these have been cleared for adoption, Mejicanos said."

Drug Addicted, Unemployed Parent's Rights to Child Properly Terminated

In the case of Tyrone L. Wheless v. Commonwealth Catholic Charities, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court, in an adoption proceeding, did not err in concluding evidence was sufficient to justify termination of father’s parental rights to his child and in ruling that father withheld his consent contrary to the best interests of the child.  The child was entrusted to foster care three days after his birth and the child was almost two years old at the time of the proceeding. The Court further explained that the child:

"had bonded with his prospective adoptive parents, and expert testimony concluded his removal from that home would be detrimental. His mother wishes the adoption to proceed. The relationship between the birth parents showed appellant to have been abusive and physically violent to the mother, to the extent she fears for her life when he is released from incarceration. Appellant has no ability to care for B.B.H. He is a convicted felon, disabled by being shot and subsisting upon $384 per month in Social Security benefits. Testimony reveals no prospects of his employment and he has no home for the child. He cannot lawfully return to live with his mother. He has never been licensed to drive. Appellant is a self-admitted drug addict and drug dealer who "pawned" Cassandra's car to other dealers to use in their actions and in exchange for drugs.  Appellant relies on the drugs to alleviate his psychosis.  Appellant is a convicted felon with a history of violence towards women.  Finally, there has been no "previous relationship" between appellant and B.B.H. (the "child")."