Present: All the Justices
DOUGLAS CHRISTOPHER THOMAS
v. Record No. 991284 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 5, 1999
DAVID GARRAGHTY, WARDEN,
GREENSVILLE CORRECTIONAL CENTER
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
Douglas Christopher Thomas was convicted in the Circuit
Court of Middlesex County (circuit court) of capital murder,
first degree murder, and two counts of using a firearm in the
commission of a felony. The first degree murder conviction was
based on the killing of James Baxter Wiseman, II, Code § 18.2-
32, and the capital murder conviction arose from the killing of
Kathy J. Wiseman as a part of the same act or transaction of
killing James Baxter Wiseman, II, Code § 18.2-31(7). The other
two convictions were based on Thomas's use of a firearm in the
commission of these murders. Code § 18.2-53.1. Thomas, who was
17 years old at the time of these offenses, was sentenced to
death on the capital murder conviction based on the aggravating
factor of "vileness." He also received a sentence of 65 years'
imprisonment for first degree murder and a total of six years'
imprisonment for the two firearms convictions. We affirmed the
trial court's judgment in Thomas v. Commonwealth, 244 Va. 1, 419
S.E.2d 606, cert. denied, 506 U.S. 958 (1992).
Thomas filed the present petition for a writ of habeas
corpus invoking this Court's original jurisdiction. He alleges
that his biological father was not provided notice of the
proceedings in the Middlesex County Juvenile and Domestic
Relations District Court (juvenile court) that resulted in his
transfer to the circuit court for trial as an adult, as required
by former Code § 16.1-263. 1 He asserts that under our recent
holding in Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219
(1999) (per curiam), the Commonwealth's failure to provide such
notice created a jurisdictional defect that rendered his
convictions void.
In November 1990, the juvenile court issued criminal
petitions against Thomas in which his mother was identified as
Margaret M. Thomas and his aunt and uncle, Brenda J. and Herbert
Marshall, were identified under the heading, "guardian, legal
custodian or person in loco parentis." Thomas does not dispute
that these three individuals were given notice of the transfer
proceedings in the juvenile court. Thomas's father was
identified in the petitions as "Robert Christopher Thomas[,]
1
Thomas raised the same claim in a motion for writ of coram
vobis filed in the circuit court, which denied the motion by
order dated June 16, 1999. Thomas's appeal of the circuit court
order is pending in this Court and has been consolidated with
this habeas corpus proceeding. See Thomas v. Commonwealth of
Virginia, Record. No. 991291. We will decide the coram vobis
appeal separately by order and, for reasons not germane to this
2
Whereabouts unknown." No notice of the juvenile court
proceedings was provided to Robert Christopher Thomas, and the
record does not reflect that any effort was made to locate him.
On the date set for the transfer hearing in the juvenile
court, Thomas and his counsel executed a written document
waiving his right to the hearing. The document stated in part:
"IT IS THE CONCLUSION of the Defendant and his counsel that the
statutory requirements for transfer to Circuit Court are met and
that the waiver of both a probable cause hearing and transfer
hearing is in the best interest of the Defendant." After
informing Thomas of the purpose of a transfer hearing and asking
him questions to determine whether his waiver was voluntary and
intelligent, the juvenile court accepted Thomas's waiver
pursuant to former Code § 16.1-270 and transferred Thomas to the
circuit court for further criminal proceedings. Following the
transfer, Thomas was indicted, tried, and convicted in the
circuit court on the four felony charges.
The following facts concerning Thomas's family
relationships are not in dispute. Thomas's biological parents,
Margaret M. Thomas and Robert Christopher Thomas, separated in
1973, several months before Thomas was born. They divorced in
appeal, we will affirm the circuit court's judgment in that
case.
3
1974. In 1982, Thomas was adopted by his maternal grandparents,
Herbert B. Marshall, Sr., and Virginia J. Marshall.
Prior to the adoption, both of Thomas's biological parents
executed documents indicating their consent to the adoption.
The following handwritten language appeared on the consent form
signed by Thomas's biological mother:
Also, I would like to know by signing this paper will
Douglas C. Thomas at [my parents'] death come back to
me is why I gave consent for them to have custody of
my son is because [his grandfather] wanted to put him
on his social security & his insurance papers.
The consent form signed by Thomas's biological father
contained the following typewritten language:
3) That respondent . . . would like for the records to
reflect that due to serious illness or death to the
[adoptive parents] that the child be returned to the
custody and care of his natural Mother.
4) That respondent . . . would also like for the
records to reflect that due to the death or serious
illness of the child's natural Mother . . . that the
child be awarded to the custody of his natural Father.
In 1985, after both adoptive parents died, Thomas lived
with his biological mother for a period of time. In 1988, he
began living with his aunt and uncle, Brenda and Herbert
Marshall, in Middlesex County, where he was residing when he
committed these offenses. During the years after his adoptive
parents died, Thomas did not have a legal guardian or custodian
appointed by any court.
4
In his petition for a writ of habeas corpus, Thomas relies
primarily on our holding in Baker. There, for the reasons
stated in the opinion of the Court of Appeals, we affirmed the
Court's judgment voiding the circuit court convictions of a
juvenile because the required notice of transfer hearing was not
provided to the juvenile's father. 258 Va. at 2, 516 S.E.2d at
220. The Court of Appeals held that "[a] plain reading of Code
§§ 16.1-263 and 16.1-264 manifests legislative intent that both
parents be notified and dispenses with this requirement only
when the trial judge has certified on the record that the
identity of a parent is not reasonably ascertainable." Baker v.
Commonwealth, 28 Va. App. 306, 312, 504 S.E.2d 394, 397 (1998)
(emphasis added). The Court of Appeals concluded that
"[b]ecause the notice of the initiation of juvenile proceedings
was not properly served on the required parties, the transfer of
jurisdiction was ineffectual and the subsequent convictions are
void." Id. at 315, 504 S.E.2d at 399.
Thomas argues that the circuit court did not acquire
jurisdiction to try him as an adult because the transfer
proceedings in the juvenile court were invalid. He essentially
contends that after the death of his adoptive parents, his
biological mother and father again became his "parents" and,
thus, were entitled under former Code § 16.1-243 to notice of
5
the transfer proceedings in the juvenile court. We disagree
with Thomas's argument.
In 1990, when Thomas was charged with the four offenses,
former Code § 16.1-263(A) provided, in relevant part:
After a petition has been filed, the court shall
direct the issuance of summonses, one directed to the
child, if the child is twelve or more years of age,
and another to the parents, guardian, legal custodian
or other person standing in loco parentis, and such
other persons as appear to the court to be proper or
necessary parties to the proceedings . . . . The court
may direct that other proper or necessary parties to
the proceedings be notified of the pendency of the
case, the charge and the time and place for the
hearing.
In accordance with these provisions, Thomas's aunt and
uncle, as persons "standing in loco parentis," were served
with notice of the transfer hearing. This service of
process, along with the notice that was provided to Thomas,
fully complied with the requirements of former Code § 16.1-
263 because, at that time, Thomas had no parents, guardian,
or legal custodian. Under Code § 63.1-233, the final
adoption order entered in 1982 divested Thomas's biological
parents of all legal rights and obligations with respect to
him. That order, in conformance with the provisions of the
statute, stated that Thomas was "to all intents and
purposes . . . the child of said petitioners, Herbert B.
Marshall and Virginia Marshall, husband and wife." See
Code § 63.1-233.
6
We find no merit in Thomas's contention that the consent
forms executed by his biological parents imposed limiting
conditions on the adoption, which resulted in their resuming the
status of "parents," for purposes of former Code § 16.1-263,
when the adoptive parents died. The final adoption order
unconditionally divested the biological parents of all legal
rights with respect to Thomas. See Code § 63.1-233; Doe v. Doe,
222 Va. 736, 746, 284 S.E.2d 799, 805 (1981); Sozio v. Thorpe,
22 Va. App. 271, 275, 469 S.E.2d 68, 70 (1996); Cage v.
Harrisonburg Dept. of Social Services, 13 Va. App. 246, 249-50,
410 S.E.2d 405, 406-07 (1991). Since the adoption order was not
appealed within six months after it was entered, its validity is
"not subject to attack in any proceedings, collateral or
direct." Code § 63.1-237. Thus, Thomas's biological father was
not his "parent" within the meaning of former Code § 16.1-263 at
the time of the transfer proceedings and was not entitled to
notice under that statute.
Thomas next asserts an alternative argument that, if he had
no parents at the time of the juvenile court proceedings, "there
was a jurisdictional defect in the transfer proceedings because
a person required to be summonsed, i.e., the legal guardian or
guardian ad litem, was not notified." We disagree with this
argument.
7
First, Thomas had no legal guardian. Second, there is no
requirement that a guardian ad litem be appointed to represent a
juvenile defendant in a transfer proceeding. We resolved this
issue in Wright v. Commonwealth, 245 Va. 177, 184, 427 S.E.2d
379, 384 (1993), vacated on other grounds, 512 U.S. 1217 (1994),
stating that "[a] defendant under a disability who is
represented by counsel need not have appointed to him a guardian
ad litem unless a statute applicable to a particular case
expressly requires such an appointment." Id. at 183, 427 Va. at
384. We held that because the juvenile transfer statutes
(former Code §§ 16.1-269 to –272) did not expressly require the
appointment of a guardian ad litem for a juvenile defendant at a
transfer hearing, the juvenile defendant had no such right. Id.
Thus, in the present case, we conclude that the statutory notice
requirements for a transfer hearing, recognized by this Court in
Baker, were fully satisfied. 2
For these reasons, we will deny Thomas's petition for a
writ of habeas corpus.
Writ denied.
2
We reject Thomas's additional argument that because the
transfer petitions listed Robert Thomas as the defendant's
father, the Commonwealth should be barred from asserting that
Robert Thomas was not the defendant's "parent" at the time of
the transfer proceedings. The terms "father" and "parent" are
not synonymous under the facts of this case.
8