City of Newport News Department of Social Services v. Winslow

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey

Argued at Richmond, Virginia

CITY OF NEWPORT NEWS

DEPARTMENT OF SOCIAL SERVICES

OPINION BY

v. Record No. 2631-02-1 JUDGE ROBERT J. HUMPHREYS

MAY 20, 2003

JEANETTE WINSLOW

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Edward L. Hubbard, Judge

Allen L. Jackson, Chief Deputy City Attorney

(Christina A. Walsh, Assistant City Attorney,

on brief), for appellant.

Paul H. Wilson for appellee.

Richard H. Lewis, Jr., Guardian ad litem for

the minor children.

The City of Newport News Department of Social Services (DSS)

appeals a decision of the trial court, striking DSS's evidence in

a proceeding to terminate Jeanette Winslow's residual parental

rights to her two youngest children. DSS contends that the trial

court erred in relying on Code § 16.1-283(B), as opposed to Code

§ 16.1-283(C)(2), in support of its determination. In the

alternative, DSS argues that the trial court erred in determining

that it failed to establish, by clear and convincing evidence,

that Winslow's residual parental rights should be terminated

pursuant to Code § 16.1-283(C)(2). For the reasons that follow,

we reverse and remand for further proceedings consistent with this

opinion. 1

I. Background

DSS initially removed Winslow's children from her home in

July of 1998. DSS removed the children because of the extremely

poor condition of Winslow's home and Winslow's apparent inability,

due to a bi-polar disorder and obsessive compulsive personality

disorder, to accept responsibility for the condition of the home

and the resulting danger posed to her children. On December 28,

2001, after several years of working with Winslow and her

children, DSS filed permanency plans with the goal of adoption and

petitions to terminate Winslow's residual parental rights with the

Newport News Juvenile and Domestic Relations District Court (J&DR

court). The petitions and permanency plans alleged:

The parents, without good cause, have been

unwilling or unable with [sic] a reasonable

period not to exceed twelve month [sic] to

remedy substantially the conditions which

led to the child's foster care placement,

notwithstanding the reasonable and

appropriate efforts of social, medical,

mental health or other rehabilitative

1

On April 10, 2003, we granted Winslow's motion for leave

to file a "late reply brief" and allowed her counsel to present

oral argument. During her oral argument, Winslow withdrew her

motion to dismiss, filed with this Court on April 4, 2003.

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agencies to such end. (Virginia Code

Section 16.1-283[C](2) [sic] 2

On March 4 and 5, 2002, the J&DR court heard evidence on the

petitions. On April 24, 2002, the court approved the goal of

adoption and terminated Winslow's parental rights to the children

finding that, pursuant to "Code § 16.1-283(C)," Winslow:

without good cause, has been unwilling or

unable within a reasonable period of time

not to exceed twelve months from the date

the child was placed in foster care to

remedy substantially the conditions which

led to or required continuation of the

child's foster placement, notwithstanding

the reasonable and appropriate efforts of

social, medical, mental health or

rehabilitative agencies to such end.

Winslow subsequently appealed the J&DR court's order to the

circuit court (trial court) for a de novo review. On June 28,

2002 and September 27, 2002, the trial court heard evidence on the

matters. DSS presented several witnesses having knowledge of the

circumstances. At the close of DSS's evidence, Winslow raised a

motion to strike contending that DSS failed to prove,

by clear and convincing evidence, that not

only is it in the best interest of the

children that the parental rights be

terminated, but also that the mother through

the abuse and neglect place [sic] the

children in serious, substantial threat to

their life, health, and development, and

that it's not reasonably likely that the

2

The petitions also sought to terminate the residual

parental rights of each of the children's fathers. There is no

issue in the present appeal with regard to the termination of

the fathers' rights. Therefore, we do not address these matters

further.

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conditions which resulted in that neglect or

abuse can be substantially corrected or

eliminated so as to allow the deficiency to

be gone [sic].

DSS responded, stating that:

the Code allows the City to proceed on any

of the sections in 16.1-283, and the City

has chosen to proceed on Section C-2,

wherein, the mother has without good cause

been unable within a reasonable period of

time not to exceed 12 months from the date

the children came into care, to remedy

substantial [sic] any conditions that places

the children in foster care placement

despite the efforts of Newport News

Department of Social Services.

After hearing the arguments, the trial court granted the

motion, finding:

a child is not entitled to the best mother

on earth. A child is entitled to their

birth parent unless it causes irremediable

harm to them.

There's no doubt at the time [the children]

were removed that the department of social

services was absolutely correct. I don't

think the mother would dispute that knowing

what she knows now, that there was a serious

threat to their life, health or development

living in that milieu in which they lived.

But the question before the Court today is

[sic] not reasonably likely that those

conditions which resulted in their neglect

and abuse at that time can be substantially

corrected or eliminated [sic]. And, see, we

also when these cases go on like that, we

also lose sight of the fact that it's the

original abuse and neglect that we're

concerned with, not what's happened from

intervening causes such as sexual abuse or

other placements or what's happened at other

places. She can't be expected – she's never

been expected to remedy those situations.

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She's always been asked to remedy those

situations that were there present when she

lost the children, and I can't see by clear

and convincing evidence that it's not

reasonably likely that those conditions

could be substantially corrected. I'm going

to grant the motion.

(Emphases added). The trial court issued its written order,

nunc pro tunc on October 24, 2002, which stated as follows, in

relevant part:

This matter came to be heard on September

27, 2002. The parties having last appeared

before the Court on June 28, 2002 for

Jeanette Winslow's appeal of the Newport

News Juvenile and Domestic Relations

District Court order, dated April 18, 2002,

terminating her residual parental rights to

the above-named children, pursuant to

§ 16.1-283(C)(2) of the Code of Virginia.

* * * * * * *

Upon consideration, the Court FINDS the

evidence insufficient as a matter of law to

sustain the termination of parental rights

petition filed by the Newport News

Department of Social Services. WHEREFORE,

the Court GRANTS the motion to strike the

evidence and the petition to terminate the

residual parental rights of Jeanette Winslow

is HEREBY dismissed and remanded to the

Newport News Juvenile and Domestic Relations

District Court.

II. Analysis

On appeal, DSS contends the trial court erred in granting the

motion to strike, because in so doing it failed to "apply the

standard contained in § 16.1-283(C)(2)" and instead "improperly

applied the standard contained in § 16.1-283(B)." In the

alternative, DSS contends the trial court erred in finding it

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failed to establish, by clear and convincing evidence, that

Winslow's residual parental rights should be terminated pursuant

to Code § 16.1-283(C).

We first note that "[a]bsent clear evidence to the contrary

in the record, the judgment of a trial court comes to us on

appeal with a presumption that the law was correctly applied to

the facts." Yarborough v. Commonwealth, 217 Va. 971, 978, 234

S.E.2d 286, 291 (1977). Furthermore, the Supreme Court of

Virginia has consistently "stated that 'it is the firmly

established law of this Commonwealth that a trial court speaks

only through its written orders.'" Walton v. Commonwealth, 256

Va. 85, 94, 501 S.E.2d 134, 140 (1998) (quoting Davis v. Mullins,

251 Va. 141, 148, 466 S.E.2d 90, 94 (1996)). Appellate courts

thus "presume" that the trial judge's order "accurately reflects

what transpired" during the proceedings below. Stamper v.

Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979).

Code § 16.1-283 establishes the procedures and grounds under

which a court may order the termination of residual parental

rights. The statute provides as follows, in relevant part:

B. The residual parental rights of a parent

or parents of a child found by the court to

be neglected or abused and placed in foster

care as a result of (i) court commitment;

(ii) an entrustment agreement entered into

by the parent or parents; or (iii) other

voluntary relinquishment by the parent or

parents may be terminated if the court

finds, based upon clear and convincing

evidence, that it is in the best interests

of the child and that:

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1. The neglect or abuse suffered by such

child presented a serious and substantial

threat to his life, health or development;

and

2. It is not reasonably likely that the

conditions which resulted in such neglect or

abuse can be substantially corrected or

eliminated so as to allow the child's safe

return to his parent or parents within a

reasonable period of time. . . .

* * * * * * *

C. The residual parental rights of a parent

or parents of a child placed in foster care

as a result of court commitment, an

entrustment agreement entered into by the

parent or parents or other voluntary

relinquishment by the parent or parents may

be terminated if the court finds, based upon

clear and convincing evidence, that it is in

the best interests of the child and that:

* * * * * * *

2. The parent or parents, without good

cause, have been unwilling or unable within

a reasonable period of time not to exceed

twelve months from the date the child was

placed in foster care to remedy

substantially the conditions which led to or

required continuation of the child's foster

care placement, notwithstanding the

reasonable and appropriate efforts of

social, medical, mental health or other

rehabilitative agencies to such end. . . .

Code § 16.1-283(B) and (C)(2) (emphases added).

Both subsection (B) and subsection (C)(2) of Code § 16.1-283

address substantially similar grounds for the termination of

parental rights. See Richmond Dept. of Soc. Servs. v. L.P., 35

Va. App. 573, 583, 546 S.E.2d 749, 754 (2001). However, Code

§ 16.1-283(B) speaks prospectively, as to the ability of the

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parent or parents to "substantially" remedy, "within a reasonable

period of time," the conditions which led to the foster care

placement. Conversely, Code § 16.1-283(C)(2) is retrospective in

nature, focusing on whether the parent or parents "have been

[]willing or []able within a reasonable period of time not to

exceed twelve months," to "remedy substantially" the conditions

which led to the foster care placement.

Despite these distinctions, we have previously upheld

terminations under both subsections of Code § 16.1-283, as well as

under one or either of the individual subsections. See Ferguson

v. Stafford County Dep't of Soc. Serv., 14 Va. App. 333, 340, 417

S.E.2d 1, 5 (1992) (upholding the trial court's decision to

terminate residual parental rights pursuant to Code § 16.1-283(B)

and (C)(1)); Lowe v. Dept. of Public Welfare, 231 Va. 277, 281-82,

343 S.E.2d 70, 73 (1986) (upholding termination of residual

parental rights pursuant to Code § 16.1-283(B)(2)); and Lecky v.

Reed, 20 Va. App. 306, 313-14, 456 S.E.2d 538, 541 (1995)

(ordering termination of residual parental rights pursuant to Code

§ 16.1-283(C)). Furthermore, each subsection, although similar in

nature, is written as a distinct and grammatically independent

provision of the statute. Accordingly, it is clear that Code

§ 16.1-283(B) and (C)(2) set forth individual bases upon which a

petitioner may seek to terminate residual parental rights.

Here, the record clearly reflects that DSS sought termination

of Winslow's residual parental rights based upon Code

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§ 16.1-283(C)(2), not § 16.1-283(B). In fact, DSS pointed the

trial court to this subsection of the statute in its response to

Winslow's motion to strike. Moreover, both foster care plans,

filed in conjunction with the termination petitions, state

specifically that they are based upon Code § 16.1-283(C). 3

Indeed, the juvenile and domestic relations district court relied

upon Code § 16.1-283(C), as reflected in its written orders of

April 24, 2002, in terminating Winslow's residual parental rights

after the district court proceedings.

Nevertheless, in support of her motion to strike, Winslow

argued that DSS failed to demonstrate that Winslow, "through the

abuse and neglect place [sic] the children in serious, substantial

threat to their life, health, and development, and that it's not

reasonably likely that the conditions which resulted in that

neglect or abuse can be substantially corrected or eliminated so

as to allow the deficiency to be gone [sic]." Winslow's argument

in this regard clearly tracked the bases of proof necessary to

establish termination pursuant to Code § 16.1-283(B), as opposed

to those necessary to establish termination pursuant to Code

§ 16.1-283(C)(2).

In response, the trial court found "I don't think [Winslow]

would dispute that knowing what she knows now, that there was a

3

We note that although the Appendix on appeal contains a

copy of both foster care plans (dated December 28, 2001), only

one plan appears in the circuit court's record.

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serious threat to their life, health or development living in that

milieu in which they lived," and "I can't see by clear and

convincing evidence that it's not reasonably likely that those

conditions could be substantially corrected." The trial court's

written order notes that the juvenile and domestic relations

district court granted the termination pursuant to Code

§ 16.1-283(C)(2), but merely states that, after hearing the matter

de novo, it found the "evidence insufficient as a matter of law to

sustain the petition filed by" DSS.

Based upon the trial court's statements during the hearing,

and because we discern no guidance from its broadly written final

order, we find that the trial court improperly applied the law to

the facts in this case. The trial court first made a factual

finding concerning the initial threat to the "life, health, [and]

development" of the children and then made a prospective

determination, finding that it was "not reasonably likely that"

Winslow could substantially remedy those conditions. As set forth

above, these criteria are pertinent to a finding pursuant to Code

§ 16.1-283(B), not to a finding pursuant to Code § 16.1-283(C)(2).

Furthermore, there is no ambiguity created between the trial

court's statements in the transcript and its written order. See

Commonwealth v. Williams, 262 Va. 661, 668, 553 S.E.2d 760, 763

(2001) (noting that the maxim that "a court speaks only through

its written orders" "generally refers to instances when some

conflict or ambiguity exists between the language expressed in a

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transcript and a court's order, when an order fails to reflect an

action allegedly taken by one or more parties, or when a court's

order fails to reflect compliance with a jurisdictional

requirement"). Indeed, the written order fails to state which

subsection the trial court relied upon to sustain its finding.

Accordingly, we reverse the decision of the trial court,

granting Winslow's motion to strike under the guise of Code

§ 16.1-283(B). 4 We further remand this matter for additional

proceedings consistent with this opinion.

Reversed and remanded.

4

Because we have found that the trial court improperly

relied upon Code § 16.1-283(B) in reaching its determination, we

do not reach DSS's alternative argument that the trial court

erred in failing to find DSS established the necessary elements

of proof under Code § 16.1-283(C)(2).

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