Richmond Department of Social Services v. Carter

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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