COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
PHYLLIS FULLER
MEMORANDUM OPINION * BY
v. Record No. 2610-97-1 JUDGE SAM W. COLEMAN III
JULY 7, 1998
CITY OF VIRGINIA BEACH
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Curtis T. Brown for appellant.
(Leslie L. Lilley, City Attorney; Nianza E.
Wallace II, Assistant City Attorney, on
brief), for appellee.
Phyllis Fuller (mother) appeals the trial court's order
terminating her residual parental rights with respect to five of
her minor children. Mother contends: (1) the City of Virginia
Beach Department of Social Services (agency) did not adequately
investigate the possibility of granting custody of the children
to relatives, and (2) the trial court erred in finding that three
of the children had not reached an "age of discretion" to object
1
to the termination of mother's parental rights. Finding no
error, we affirm the trial court's ruling.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Mother also contends the agency failed to make reasonable
efforts to provide her with medical and financial assistance.
She did not make this claim in the trial court in arguing her
motions to strike the evidence. See Rule 5A:18; Taylor v.
Commonwealth, 21 Va. App. 557, 565-66, 466 S.E.2d 118, 122
(1996). Because the record does not reflect any reason to invoke
the good cause or ends of justice exceptions, Rule 5A:18
precludes our review of this argument on appeal.
When reviewing the trial court's termination of parental
rights on appeal, we view the evidence in the light most
favorable to the prevailing party below, the agency in this case.
See Logan v. Fairfax County Dep't of Human Dev., 13 Va. App.
123, 128, 409 S.E.2d 460, 463 (1991). Where the evidence is
heard ore tenus, we will not disturb the trial court's judgment
unless it is plainly wrong or without evidence to support it.
See Lowe v. Dep't of Public Welfare, 231 Va. 277, 282, 343 S.E.2d
70, 73 (1986).
PLACEMENT OF CHILDREN WITH RELATIVES
Code § 16.1-283(A) provides, in pertinent part, that before
terminating parental rights the court "shall give consideration
to granting custody to relatives of the child, including
grandparents." "Before 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." Sauer v. Franklin County Dep't of Soc. Servs., 18
Va. App. 769, 771, 446 S.E.2d 640, 641 (1994). However, the
agency is not required to investigate the home of every relative
as a potential placement for the children. See id. at 771, 446
S.E.2d at 642.
Here, the evidence established that the agency investigated,
and ultimately rejected, the homes of the children's father and
aunt for potential placement. Both the mother and the aunt told
the social worker assigned to mother's case that no other
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relatives were interested in taking custody of the children.
Under these circumstances, the agency fulfilled its duty to
investigate immediate relatives as possible sources for placement
of the children in accordance with Code § 16.1-283(A).
AGE OF DISCRETION
Code § 16.1-283(E) states that "residual parental rights
shall not be terminated if it is established that the child, if
he is at least fourteen years of age or older[,] or otherwise of
an age of discretion as determined by the court, objects to such
termination." (Emphasis added). A child has reached the age of
discretion if the evidence proves that he or she is "sufficiently
mature to have intelligent views and wishes on the subject of the
termination proceeding." Hawks v. Dinwiddie Dep't of Soc.
Servs., 25 Va. App. 247, 253, 487 S.E.2d 285, 288 (1997). The
determination of whether the child has reached the "age of
discretion" is committed to the sound discretion of the trial
court. Id.; Deahl v. Winchester Dep't of Soc. Servs., 224 Va.
664, 676, 299 S.E.2d 863, 869 (1983).
Mother claims the trial court erred in finding that three of
her children had not reached an "age of discretion" to object to
termination of her parental rights. We disagree. The trial
court heard testimony from each of the three children and found
"no evidence . . . which proves that any of [the children] are
mature enough to have intelligent views of the subject of
termination." Two of the children expressly indicated that they
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did not understand the nature of the proceeding. When the third
child was asked if she understood the purpose of the hearing, she
merely responded "my mom . . . ain't do what she was supposed to
do." On this record, we cannot say that the trial court abused
the broad discretion accorded by the legislature to determine
that the children had not attained the "age of discretion."
For the foregoing reasons, we affirm the trial court's
termination of mother's residual parental rights.
Affirmed.
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