COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
RICHMOND DEPARTMENT OF SOCIAL SERVICES
OPINION BY
v. Record No. 2254-97-2 JUDGE JAMES W. BENTON, JR.
NOVEMBER 24, 1998
GEORGETTE CARTER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Susan M. Harris for appellant.
(Charles P. d'Evegnee, on brief), for
appellee. Appellee submitting on brief.
This is an appeal from an order rejecting a foster care
review plan, which proposed adoption for a minor child in the
custody of the Richmond Department of Social Services. See Code
§ 16.1-282. The Department contends the trial judge based his
decision upon application of an incorrect standard of proof. For
the reasons that follow, we reverse the decision and remand for
reconsideration.
I.
The Department obtained custody of the child by emergency
removal in 1994 when the child was five months old. See Code
§ 16.1-251. Between 1994 and 1996, the Department filed in the
juvenile and domestic relations district court three foster care
service plans pursuant to Code § 16.1-281. Each plan stated a
program goal of returning the child to the child's biological
mother. A judge of the juvenile court approved two of the plans.
The record does not contain any documents indicating whether a
judge ruled on the third plan.
In 1997, the Department filed a foster care review plan
pursuant to Code § 16.1-282. That plan proposed changing the
program goal from returning the child to the mother to adoption
of the child. A judge of the juvenile court reviewed and
disapproved the goal of adoption. The Department appealed the
judgment to the circuit court.
Following an evidentiary hearing, the circuit court judge
entered an order finding, "based on clear and convincing
evidence[,] that the change of goal from return home to adoption
is inappropriate." Although this language in the order is
ambiguous, the record makes clear that the trial judge ruled that
the Department was required to prove by clear and convincing
evidence that the change was appropriate. Indeed, the Statement
of Facts, filed pursuant to Rule 5A:8(c), recites that the
Department "disputes . . . that the standard of proof is clear
and convincing to support a change of a foster care goal from
return home to adoption."
II.
The proceeding in this case was commenced as a foster care
service plan review pursuant to Code § 16.1-282. Recognizing
that "Code § 16.1-282 sets forth no specific standard of proof
for the establishment or modification of foster care plans," we
recently held that "proof by a preponderance of the evidence is
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the appropriate standard" to apply in proceedings under Code
§ 16.1-282. Padilla v. Norfolk Div. of Soc. Servs., 22 Va. App.
643, 645, 472 S.E.2d 648, 649 (1996).
The order that the trial judge entered in this case
indicates that the Department's burden was measured by a "clear
and convincing" standard. That was an incorrect standard. See
id.
The mother contends the Department failed to preserve for
appellate review the issue whether the trial judge erred in
applying the standard of proof. That claim is meritless. The
statement of facts clearly indicates that the issue was disputed
at trial. Once the objection was made at trial, the Department
was not required to make it again to preserve the issue. See
Code § 8.01-384(A).
The mother also contends the judgment should be affirmed
because the Department "has not raised any error in the
sufficiency of the evidence to support [the trial judge's]
findings." We disagree. The Department's contention that the
trial judge applied an incorrect standard of proof is the
objection by which the Department "ma[de] known to the [trial
judge] the action which [the Department] desire[d] the court to
take." Id. That objection placed at issue whether the trial
judge appropriately weighed the facts and reached a proper
conclusion on the issue of sufficiency of the evidence.
The term "burden of proof" actually
refers to two separate burdens: the burden
of producing evidence and the burden of
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persuasion. When a party has the burden of
producing evidence on an issue, that party
should receive an adverse ruling on the issue
as a matter of law unless he or she produces
evidence which a reasonable mind could accept
as proof of the fact in issue. If the party
with the burden of production meets this
standard, he or she is entitled to have the
finder of fact then determine whether he or
she has met the applicable burden of
persuasion.
Ohlen v. Shively, 16 Va. App. 419, 424, 430 S.E.2d 559, 561
(1993) (citation omitted). If the trier of fact is not informed
of the proper standard of proof, the trier of fact cannot
appropriately assess whether the party with the burden of proof
has met the applicable risk of persuasion borne by that party.
The record establishes that the trial judge required of the
Department a higher burden of proof than required under Code
§ 16.1-282. By applying a higher burden of proof, the trial
judge impermissibly increased the Department's risk of
non-persuasion. Thus, the trial judge erred in "apply[ing] the
more exacting evidentiary requirement." Gibbs v. Gibbs, 239 Va.
197, 201, 387 S.E.2d 499, 501 (1990).
Accordingly, we reverse the judgment and remand this matter
to the trial judge for reconsideration pursuant to the standard
announced in Padilla.
Reversed and remanded.
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