Hawthorne v. Smyth County Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia

DEBRA J. HAWTHORNE AND
DANIEL H. HAWTHORNE
OPINION BY
v. Record No. 1309-99-3 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 1, 2000
SMYTH COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge

Gwen A. Carpenter (Southwest Virginia Legal
Aid Society, on brief), for appellants.

Florence A. Powell (Sondra K. Alan, Guardian
ad litem for the minor child; Freeman
Associates, on brief), for appellee.

Debra Hawthorne and Daniel Hawthorne ("appellants") appeal

the decision of the Circuit Court of Smyth County terminating

their residual parental rights to their son, B.H. Appellants

contend the circuit court erroneously held that recent changes

in Code § 16.1-283 eliminated the duty of the Department of

Social Services (DSS) to consider placing a child with a

relative before terminating parental rights. Although we find

that the trial court erred, we hold that the error was harmless.

Accordingly, we affirm the trial court's decision.

BACKGROUND

B.H. came into the custody of DSS on February 26, 1997,

pursuant to an order of the Juvenile and Domestic Relations
District Court of Smyth County granting DSS's petition for

emergency removal of B.H. from the family home. In addition to

appellants' abuse of alcohol, which was the primary factor

leading to B.H.'s removal, other factors included domestic

violence between Debra and Daniel, their failure to supervise

B.H., inadequate parenting skills, irregular employment, and the

general instability of the home.

B.H. was initially placed in foster care, first on an

emergency basis in the home of Mr. and Mrs. Rob Kilby, and later

on February 28, 1997, in the home of Mr. and Mrs. Edward

Widener. B.H. remained with the Wideners until June 23, 1997,

when he was placed in the home of his elder sister and

brother-in-law, Lanina and Delmas Jackson. B.H. lived with the

Jacksons until August 18, 1997, when he was returned to his

parents' home. DSS retained legal custody of B.H., however.

Appellants and DSS entered into a foster care plan and

agreement ("Agreement") on October 31, 1997. The goal of this

plan was to assure B.H.'s return to his parents' custody,

provided they met certain terms and conditions. The plan was

approved by the juvenile and domestic relations district court

in December, 1997. On January 24, 1998, B.H. was once again

removed from appellants' home because of their continued abuse

of alcohol and their failure to complete parent-nurturing

classes prescribed in the Agreement. B.H. was again placed in

- 2 -
foster care, ultimately being placed in the home of Ms. Linda

Guyer, where he presently remains.

Heather Trivette, a foster care worker for DSS, contacted

B.H.'s sister, Lanina Jackson, following his second removal from

appellants' home to determine whether he could be placed in her

care. Jackson told Trivette that because of the recent birth of

her second child, her home was too crowded to accommodate B.H.

and that she was too preoccupied caring for her own two small

children to properly supervise him. Later, in August, 1998,

Jackson contacted Trivette and told her she would be willing to

take custody of B.H., provided appellants paid support for his

care.

Other than appellants and Jackson, B.H.'s only relative in

the immediate vicinity of Smyth County is his great aunt, Minnie

Brown. 1 Trivette knew of Brown's relationship to B.H., but did

not contact her concerning the possibility of placing B.H. in

her care. Brown did not contact DSS. However, Brown testified

at the hearing with respect to her availability and suitability

as a custodian.

On May 8, 1998, DSS filed another foster care plan,

changing the plan's goal from returning B.H. to appellants'

1
Trivette's investigation of the Hawthorne family revealed
the existence of other relatives in the Washington, D.C., area
and in Radford, Virginia, but neither appellants, Lanina
Jackson, B.H., nor Minnie Brown was able to provide names or
addresses for these persons.

- 3 -
custody to finding an adoptive family for B.H. DSS changed the

plan's goal because of appellants' continued abuse of alcohol

and their failure to comply with the terms of their previous

Agreement.

The circuit court heard evidence on DSS's petition to

terminate appellants' parental rights at an ore tenus hearing on

December 12, 1998. The evidence included, inter alia, testimony

from Trivette, Minnie Brown, B.H.'s foster mother Linda Guyer,

and psychologist Ralph Ramsden. Trivette's testimony, in

conjunction with that of several other social workers and police

officers, established the troubled history of the Hawthorne

home, including an on-going pattern of alcoholism and domestic

violence.

Minnie Brown testified that she is over sixty years old and

that she had been aware of B.H.'s placement in foster care

following his initial removal from appellants' custody in

February, 1997. She further testified that she had not

contacted DSS about gaining custody of B.H. At trial, however,

Brown expressed her willingness to take care of B.H. and to

adopt him, so long as B.H. "wants to be there." She stated that

she "would love to have [B.H.] in her home," that B.H. had been

to her home on at least one occasion and that he had already

established a friendship with a child of one of her neighbors.

Brown further testified that she has an adult son who lives in a

- 4 -
nursing home, another adult son who lives with her, and that she

regularly baby-sits for a twenty-month-old child between the

hours of 8:00 p.m. and 10:00 a.m. Brown also testified that she

had not discussed with B.H. the possibility of him living with

her.

Dr. Ramsden testified 2 that he has been a licensed clinical

psychologist in Abingdon, Virginia, for ten years. He first met

B.H. on May 14, 1998, when B.H. was eleven years old. At that

time B.H. was depressed, quiet, very polite, and was trying to

adjust to being in foster care. B.H. acknowledged his parents'

abuse of alcohol but remained loyal and loving toward them.

Ramsden stated that appellants cared for B.H. and that B.H.

cared for them as well. Ramsden also stated that because

terminating the relationship between appellants and B.H. could

be traumatic for B.H., it would be best if B.H. could maintain

some contact with his parents. However, he opined that B.H.

needed to be in a stable environment, and it would be better for

B.H. to be placed for adoption than to be returned to

appellants' household. Ramsden stated that a child B.H.'s age

models the behavior he sees around him and that continued

exposure to appellants' pattern of addiction and violence

2
Dr. Ramsden's testimony was accepted by the court in the
form of a written letter, a summary of his testimony before the
juvenile and domestic relations district court, and the notes
taken by the guardian ad litem during the juvenile and domestic
relations district court hearing.

- 5 -
therefore posed a threat to B.H.'s development. Ramsden stated

that in an earlier interview with B.H., when he questioned B.H.

concerning his preferences for placement, B.H. indicated his

preferences for custody in the following order: 1) return to

appellants "with no alcohol"; 2) adoption by Linda Guyer;

3) permanent foster care in Guyer's home; and 4) return to

appellants' home with no change in their use of alcohol.

Appellants moved to strike DSS's evidence on the ground

that it failed to establish that DSS had "thoroughly"

investigated the possibility of placing B.H. with a relative

prior to filing the petition to terminate parental rights. The

court overruled the motion to strike, stating that because of

the 1998 amendment to Code § 16.1-283, the case law cited by

appellants no longer obligated DSS to investigate placement with

a relative. On May 6, 1999, the court entered an order

terminating appellants' parental rights, continuing custody of

B.H. with DSS, and approving DSS's proposed change of the goal

of the foster care plan to adoption. Appellants noted their

appeal to this Court on June 4, 1999.

ANALYSIS

Appellants contend the circuit court erred in ruling that

recent changes to Code § 16.1-283(A) eliminated the duty of DSS

to consider placing the child with a relative prior to

terminating residual parental rights. They cite Logan v.

- 6 -
Fairfax County Dept. of Human Dev., 13 Va. App. 123, 409 S.E.2d

460 (1991), and Sauer v. Franklin County Dept. of Soc. Servs.,

18 Va. App. 769, 446 S.E.2d 640 (1994), construing Code

§ 16.1-283(A). In Logan, we addressed the question of whether a

social services agency must investigate placing a child with

relatives before a court may grant custody to a third party. We

held that

under the provisions of Code § 16.1-283(A)
the Department [of Social Services] has a
duty to produce sufficient evidence so that
the court may properly determine whether
there are relatives willing and suitable to
take custody of the child, and to consider
such relatives in comparison with other
placement options.

13 Va. App. at 131, 409 S.E.2d at 466. Thereafter, in Sauer, we

addressed whether social services had a duty to investigate

placement with relatives prior to termination of parental

rights. We held that "[b]efore 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." 18 Va. App. at 771, 446 S.E.2d at 641.

DSS argues that Logan and Sauer are inconsistent with one

another and that the revision to Code § 16.1-283(A) effectively

overruled our holding in Sauer, eliminating any duty DSS may

have had to investigate placing B.H. with a relative before the

court terminated appellants' parental rights. We disagree that

our holding in Sauer has been changed by statutory amendment and

- 7 -
conclude that the court erred in its construction of Code

§ 16.1-283(A). However, we find that, on the facts of this

case, the court's error was harmless, and we affirm its

decision.

Code § 16.1-283(A) states that the "order terminating

residual parental rights shall be accompanied by an order

continuing or granting custody . . . ." (Emphasis added). It

reads, in pertinent part:

Any order terminating residual parental
rights shall be accompanied by an order
continuing or granting custody to a local
board of social services, to a licensed
child-placing agency or the granting of
custody or guardianship to a relative or
other interested individual. However, in
such cases the court shall give a
consideration to granting custody to
relatives of the child, including
grandparents.

Code § 16.1–283(A).

The statute thus requires two orders, issued concurrently:

one terminating parental rights, and the other placing custody

of the child in a relative or a third party. Sauer addressed

the former; Logan addressed the latter. Contrary to DSS's

contention, our holding in Sauer is consistent with our reading

of the statute in Logan. Logan required that DSS conduct an

investigation into placing the child with relatives prior to the

court's issuance of an order granting custody. Sauer held that

such an investigation must be made prior to the issuance of an

- 8 -
order terminating parental rights, as the two orders must go

hand-in-hand. Thus, according to the principles established in

those cases, DSS had a duty to investigate placement of B.H.

with relatives before the court could terminate appellants'

parental rights. 3

DSS's reliance on the 1998 revision of Code § 16.1-283(A)

to support its view that the legislature has eliminated the duty

of DSS to investigate placing a child with a relative prior to

the termination of parental rights is misplaced. The amended

provision states:

The local board of public welfare or social
services . . . need not have identified an
available and eligible family to adopt a
child for whom termination of parental
rights is being sought prior to the entry of
an order terminating parental rights.

Termination proceedings do not necessarily culminate in

adoption; when parental rights are terminated, the court may

place temporary custody of the child in another party, where

warranted, or it may elect to continue custody in the social

services agency. Thus, the amendment simply makes clear that

3
Our construction of Code § 16.1-283(A) requiring
concomitant orders is borne out by the clear policy of the
Commonwealth as parens patriae not to terminate parental rights
and duties concerning a child without establishing who shall
assume those rights and duties. See Verrocchio v. Verrocchio,
16 Va. App. 314, 318-19, 429 S.E.2d 482, 485 (1993) (doctrine of
parens patriae defined as the power of the Commonwealth to watch
over the interests of those who are incapable of protecting
themselves, and is a protective power uniquely concerned with
the rights and interests of children).

- 9 -
termination proceedings and concomitant placements short of

adoption may proceed in the absence of DSS's identification of

an adoptive family. The amended provision does not state that

the court may terminate parental rights if DSS has failed to

provide it with "sufficient evidence so that the court may

properly determine whether there are relatives willing and

suitable to take custody of the child, and to consider such

relatives in comparison with other placement options." Logan,

13 Va. App. at 131, 409 S.E.2d at 466. Although DSS asks us, in

essence, to equate "custody" with "adoption," we decline to do

so. Logan and Sauer thus remain good law following the 1998

revision to Code § 16.1-283(A). For the reasons stated, we find

that the trial court erred in concluding that the legislature

overruled Sauer by its revision of the statute. We find the

error to be harmless, however.

DSS complied with the statutory requirements in the

instance of Lanina Jackson, when Trivette, a foster care worker

for DSS, contacted Jackson following the second removal of B.H.

from appellants' home to determine whether he could be placed in

Jackson's care. Jackson told Trivette that because of the

recent birth of her second child, her home was too crowded to

accommodate B.H. and that she was too preoccupied caring for her

own two small children to properly supervise him. Later, in

August, 1998, Jackson contacted Trivette and told her that she

- 10 -
would be willing to take custody of B.H., provided appellants

paid support for his care. DSS thus investigated placing B.H.

with Jackson, as required under our holding in Sauer, before the

court terminated appellants' parental rights, and presented

evidence to the court concerning Jackson's suitability.

DSS did not similarly investigate Brown. However, the

purpose underlying Code § 16.1-283(A) was nevertheless met in

this case. The statute requires that the court "give a

consideration to granting custody to relatives of the child"

prior to terminating parental rights and placing the child in

the custody of social services. Brown testified at the ore

tenus hearing as to her suitability and willingness to assume

custody of B.H. Thus, as required by statute, the trial court

was presented with evidence for its consideration as to the

suitability of placing B.H. with Brown before it ordered the

termination of appellants' parental rights. It is well

established in Virginia that a court will not compel "a vain and

useless undertaking." Virginia Passenger & Power Co. v. Fisher,

104 Va. 121, 129, 51 S.E. 198, 201 (1905) (citations omitted).

Because Brown testified as to her suitability to assume custody

of B.H., there was no reason to require DSS to investigate her,

as the court had before it all the evidence necessary to

consider Brown as a possible custodian. "We do not hesitate

. . . where the right result has been reached but the wrong

- 11 -
reason given, to sustain the result and assign the right

ground." Beverly Health & Rehab. Servs., Inc. v. Metcalf, 24

Va. App. 584, 596, 484 S.E.2d 156, 162 (1997) (citation

omitted). Thus, although the trial court erred in holding that

the 1998 revision to Code § 16.1-283(A) eliminated the duty of

DSS to investigate placing B.H. with a relative before

appellants' parental rights were terminated, this error was

harmless.

For the reasons stated, we affirm the court's decision.

Affirmed.

- 12 -
Bumgardner, J., concurring, in part, and dissenting, in part.

I concur in the result reached by the majority, but I do

not join in its opinion. In the second half of the opinion, the

majority concludes that the trial court did consider placing the

child with relatives and complied with all statutory

requirements for terminating parental rights. I do not feel it

is also necessary to address whether that consideration is a

prerequisite to the termination decision.

The decision in Sauer v. Franklin County Dept. of Soc.

Servs., 18 Va. App. 769, 446 S.E.2d 640 (1994), said a court

must consider custody before deciding termination. However, the

case limited itself to its unusual facts: the child, the parent

(the father), and the relative (the grandmother) lived together

in the grandmother's house.

The statutory amendments since the Sauer decision clarify

the procedural schema for termination. Code § 16.1-283(A) is a

general overview, and broad termination considerations are now

grouped into its first paragraph. Custody considerations now

follow in a separate paragraph. The specific requirements for

termination are defined in separate subsections that address

each of the various factual situations that can arise. The need

to consider granting custody to relatives is not an element of

proof for any of those situations. The directive to consider

- 13 -
relative placement now appears in the second paragraph of

subsection (A), which only addresses custody considerations.

Code § 16.1-283(A) now clearly severs two general topics:

termination and custody. Logic suggests that the issues be

separated and addressed in progressive sequence. The fact that

a relative might be a proper custodian cannot increase or

decrease the probability that a parent is unfit. A court need

only address placement with a relative if it must sever the

parental relationship. The amendments since Sauer make clear

that consideration of placement with a relative is part of the

custody decision, not a prerequisite to the termination

decision.

- 14 -