COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Senior Judge Annunziata
BERNICE WILSON
MEMORANDUM OPINION*
v. Record No. 2413-06-4 PER CURIAM
MARCH 27, 2007
FAIRFAX COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
(Mark Bodner, on briefs), for appellant.
(David P. Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy
County Attorney; Dennis R. Bates, Senior Assistant County
Attorney; Kimberly P. Baucom, Assistant County Attorney, on
brief), for appellee.
(Michael S. Arif; Martin & Arif, on brief), Guardian ad litem for
the minor child.
Bernice Wilson, mother, contends on appeal that the trial court abused its discretion by
denying her motion to vacate the August 11, 2006 order terminating her residual parental rights to
her son. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the trial court’s decision. Rule 5A:27.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant filed a motion to exclude consideration of portions of the guardian ad litem’s
brief. Appellant asks this Court to disregard portions of the brief referring to her previous
proceedings in this Court and referring to another matter involving termination of her parental
rights. Appellant also asks this Court to deny the guardian ad litem oral argument on these
matters. We deny appellant’s motion.
Background
We view the evidence in the light most favorable to the prevailing party below and grant to
it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax County Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). Wilson’s son was born on July
12, 2005 and removed from Wilson’s custody on July 14, 2005. Wilson has four older children, all
of whom have been removed from her custody. Wilson’s parental rights to these four older children
have been terminated. On March 31, 2006, the Juvenile and Domestic Relations District Court of
Fairfax County terminated Wilson’s parental rights to her infant son because Wilson’s parental
rights had previously been terminated to her son’s siblings. Wilson’s appeal to the Fairfax County
Circuit Court was set to be heard on August 30, 2006. However, on August 11, 2006, that court
entered a fully endorsed order terminating Wilson’s parental rights to her infant son. Wilson and
her attorney signed the termination order as “Seen and Agreed.” This order terminated Wilson’s
parental rights due to her inability to remedy the conditions that led to her infant son’s foster care
placement pursuant to Code § 16.1-283(C)(2), and due to Wilson’s parental rights to her other
children having been involuntarily terminated pursuant to Code § 16.1-283(E)(i).
On August 21, 2006, Wilson’s attorney filed a motion to vacate the termination order. The
court heard the matter on September 1, 2006. Wilson’s attorney argued that Wilson had changed
her mind because the Department of Social Services (DSS) would not let her speak to her son or
give her information about the child’s well-being. When asked by the trial judge, Wilson said “she
just wanted to know where her child was and that he was alright” and that she changed her mind
because “she was under emotional stress, as her grandmother had just died.” Although she claimed
she had family members who could care for her son, she was unable to name any. Wilson also
admitted that on the day before the September 1, 2006 motion hearing, she had asked her attorney to
remove her motion to vacate from the court’s docket. Wilson’s attorney argued that Wilson was
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under duress when she signed the termination order. When the trial judge asked Wilson to be
specific about “how she was under duress,” Wilson had no explanation. The trial judge denied
Wilson’s motion to vacate.
Analysis
The decision of whether to grant or deny a motion to vacate is a matter within the trial
court’s discretion and will not be disturbed on appeal in the absence of an abuse of discretion. See
Cloutier v. Queen, 35 Va. App. 413, 421, 545 S.E.2d 574, 578 (2001). In denying Wilson’s motion
to vacate the court order terminating her residual parental rights, “[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.” Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 795 (1990).
Wilson signed the August 11, 2006 order, terminating her rights to her son, as “Seen and
Agreed.” Her parental rights to her four older children already had been terminated and, therefore,
Wilson certainly understood the consequences of a parental rights termination proceeding. At the
hearing on her motion to vacate, Wilson argued that she had “changed her mind because she was
under emotional stress, as her grandmother had just died.” Wilson argued that she had signed the
August 11, 2006 order “under duress,” but was unable to specify how she had been under duress.
Wilson claimed there were family members who could care for her son, but was unable to give the
court any names. It is noteworthy that Wilson never suggests that vacating the August 11, 2006
order would be in her son’s best interests and never disputes the trial court’s reliance on Code
§ 16.1-283(C)(2) and 16.1-283(E)(i) as the bases for the termination. In addition, Wilson
acknowledged that she had asked her attorney to withdraw her motion to vacate the day before the
hearing was held on the motion.
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The trial court did not abuse its discretion in denying Wilson’s motion to vacate the August
11, 2006 order terminating her residual parental rights to her son. Accordingly, the trial court’s
decision is summarily affirmed. See Rule 5A:27.
Affirmed.
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Bernice Wilson v. Fairfax County Department of Family Services
Combined Opinion