Victor Campos v. Charles Hinsch ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia
VICTOR CAMPOS
MEMORANDUM OPINION * BY
v. Record No. 2465-10-1 CHIEF JUDGE WALTER S. FELTON, JR.
OCTOBER 11, 2011
CHARLES HINSCH
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
Rodney D. Malouf (Thomas & Associates, P.C., on brief), for
appellant.
Ryan B. Graves; Romy L. Radin, Guardian ad litem for the minor
child (Tavss Fletcher; Radin & Radin, P.C., on brief), for appellee.
Victor Campos (“appellant”), the putative biological father of A.B., appeals an order
permitting the adoption of A.B. by Charles Hinsch (“appellee”).1 Appellant, who was incarcerated
in Prince William County at the time of the hearing, asserts the Circuit Court of the City of Norfolk
(“trial court”) abused its discretion by denying his request for a continuance of the hearing to permit
his presence at a later date. Finding no error, we affirm the ruling of the trial court.
I. BACKGROUND
C.G.A. (“the birth mother”), an unmarried minor, became pregnant in late spring or early
summer of 2008. In November 2008, prior to the child’s birth, the birth mother signed an
entrustment agreement naming appellee as the adoptive parent of the child and surrendering the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The child is identified herein as A.B.
child to his care at birth. On December 18, 2008, appellee, by counsel, mailed a certified letter to
appellant notifying him of the entrustment and proposed adoption and informing him of his right to
register with the Virginia Putative Father Registry, pursuant to Code § 63.2-1250. The certified
letter to appellant was returned by the U.S. Postal Service as “unclaimed.” A.B. was born on
January 29, 2009. A search of the Putative Father Registry on that date revealed that appellant had
not registered. A.B., who left the hospital with appellee, has resided with appellee since birth.
On November 4, 2009, appellee petitioned the Juvenile and Domestic Relations District
Court for the City of Norfolk (“JDR district court”) to adopt A.B. The birth mother consented in
writing to appellee’s adoption of A.B. Appellant never visited or contacted A.B., and clearly did
not visit or contact him within six months of the filing of appellee’s petition for adoption. 2
Appellant did not execute a consent to the adoption of A.B. by appellee. The JDR district court
appointed counsel to represent appellant during the adoption proceedings. Appellant’s appointed
counsel was thereafter present at each hearing held in the JDR district court and trial court related to
A.B.’s adoption by appellee.
On August 4, 2010, at the hearing on A.B.’s adoption by appellee, the JDR district court
found that appellant’s consent to appellee’s adoption of A.B. was being withheld contrary to the
best interests of the child, and permitted appellee to proceed with the adoption of A.B.
Appellant appealed the JDR district court’s granting of appellee’s petition to adopt A.B. to
the trial court. A hearing on appellee’s petition for adoption was scheduled for November 1, 2010.
Prior to October 21, 2010, appellant was incarcerated in Prince William County. On October 21,
2010, the trial court ordered, inter alia, that “[t]he trial will proceed on November 1, 2010 (despite
2
Code § 63.2-1202(H) provides, in pertinent part, that “[n]o consent [to adoption] shall
be required of a birth parent who, without just cause, has neither visited nor contacted the child
for a period of six months prior to the filing of the petition for adoption.”
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incarceration of [appellant] [in Prince William County]).” 3 Appellant’s attorney endorsed the
October order as “seen and objected to.” No specific objections to the trial court rulings were made
a part of that order.
On November 1, 2010, the trial court heard appellee’s petition to adopt A.B. It ruled,
pursuant to Code § 63.2-1202(J),4 that appellant’s consent to the adoption was not required because
appellant failed to appear at the hearing on the petition after notice. It also noted that appellant’s
counsel was present in court. The trial court ruled, pursuant to Code § 63.2-1233(2),5 that
appellant’s consent to the adoption was not required, finding that it was being withheld contrary to
the best interests of the child. It granted appellee’s petition to adopt A.B. Appellant’s attorney
signed the November 1, 2010 order as “seen and objected to,” but failed to articulate any specific
objections to the trial court’s rulings. This appeal followed. No transcript or statement of facts of
the proceedings was made part of the record on appeal pursuant to Rule 5A:8.6
3
The order entered on October 21, 2010 contained several other rulings of the trial court,
including the approval of Detective Gill of the Prince William County Police Department to
testify telephonically and that a guardian ad litem was not necessary for appellant because he
was represented by appointed counsel who was present in court for the hearing.
4
Code § 63.2-1202(J) provides that “[t]he failure of the nonconsenting party to appear at
any scheduled hearing, either in person or by counsel, after proper notice has been given to said
party, shall constitute a waiver of any objection and right to consent to the adoption.”
5
Code § 63.2-1233(2) provides, in pertinent part:
If the [trial] court finds that consent is withheld contrary to the best
interests of the child, . . . or is unobtainable, it may grant the
petition without such consent and enter an order waiving the
requirement of consent of the nonconsenting birth parent and
transferring custody of the child to the prospective adoptive
parents. No further consent or notice shall be required of a birth
parent who fails to appear at any scheduled hearing, either in
person or by counsel.
6
Rule 5A:8 provides, in pertinent part, that a transcript becomes part of the record on
appeal “when it is filed in the office of the clerk of the trial court within 60 days after entry of the
final judgment.” Rule 5A:8(a). A written statement of facts in lieu of a transcript becomes part
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II. ANALYSIS
Appellant argues on appeal that the trial court erred in denying his request for a continuance
of the adoption hearing to permit him to be present at a later date.
“[T]he decision to grant or deny a continuance lies in the sound discretion of the trial court.”
Snyder v. Commonwealth, 10 Va. App. 67, 70, 389 S.E.2d 727, 729 (1990). Absent “‘a showing of
abuse of discretion and resulting prejudice to the movant,’” we will not reverse the ruling of the trial
court on a motion for a continuance on appeal. Mabe v. Wythe County Dep’t of Soc. Servs., 53
Va. App. 325, 333, 671 S.E.2d 425, 429 (2009) (quoting Haugen v. Shenandoah Valley Dep’t of
Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)).
A party aggrieved by a ruling of a trial court is required to provide a complete record to the
appellate court to permit it to adjudicate the asserted errors of the trial court. Patterson v. City of
Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 764-65 (2003).
Here, appellant failed to file transcripts or written statements of facts pursuant to Rule 5A:8
from either the October 2010 hearing, ordering the adoption hearing to be held in November, or the
November 2010 adoption hearing. However, appellant asserts that he preserved his assertions of
error by his noting his objections on the October and November orders.
Without a transcript or written statement of facts from the hearings themselves, we are
unable to determine whether appellant provided the trial court any basis for his request for a
continuance, and whether he lodged specific and timely objections to the trial court’s ruling denying
his requested continuance. A transcript or written statement of facts is “indispensable” to the
resolution of appellant’s assignment of error. Turner v. Commonwealth, 2 Va. App. 96, 99, 341
S.E.2d 400, 402 (1986). Because appellant failed to comply with Rule 5A:8 by failing to provide
of the record on appeal when it is filed in the office of the clerk of the trial court within 55 days
after entry of the final judgment and signed by the trial judge. Rule 5A:8(c).
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transcripts or a written statement of facts reflecting his objections and rulings of the trial court on
those objections, we will not consider on appeal his contention that the trial court abused its
discretion in denying his motion for a continuance. Rule 5A:8(b)(4)(ii) (“When the appellant fails
to ensure that the record contains transcripts or a written statement of facts necessary to permit
resolution of appellate issues, any assignments of error affected by such omission shall not be
considered.”).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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