Danielle Nichole Hughes v. Daniel Nicholas Hughes and Linda Smith Hughes ( 2011 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Frank, Kelsey and McClanahan
    Argued in Chesapeake, Virginia
    DANIELLE NICHOLE HUGHES
    MEMORANDUM OPINION * BY
    v.     Record No. 1530-10-1                                        JUDGE D. ARTHUR KELSEY
    MARCH 8, 2011
    DANIEL NICHOLAS HUGHES AND
    LINDA SMITH HUGHES
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Mary Jane Hall, Judge
    Danielle Hughes, pro se.
    Gary B. Allison (Kevin Diamonstein, Guardian ad litem;
    Gary B. Allison, P.C.; Patten, Wornom, Hatten &
    Diamonstein, on brief), for appellees.
    Appearing pro se on appeal, Danielle Nichole Hughes challenges a circuit court order
    authorizing, over her objection, the adoption of her daughter by appellant’s father and
    stepmother. Based upon the limited record before us, we affirm.
    I.
    As an appellate court, we review the evidence “in the ‘light most favorable’ to the
    prevailing party in the circuit court and grant to that party the benefit of ‘all reasonable
    inferences fairly deducible therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 
    46 Va. App. 257
    , 262, 
    616 S.E.2d 765
    , 767 (2005) (citation omitted). 1 In addition, “[u]nder basic principles
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    We also limit our review to that portion of the evidentiary record “relevant to the issues
    presented in this appeal.” Raytheon Technical Servs. Co. v. Hyland, 
    273 Va. 292
    , 296, 
    641 S.E.2d 84
    , 86 (2007), rev’d on other grounds, 
    277 Va. 40
    , 
    670 S.E.2d 746
     (2009); see also
    of appellate review, we may not go beyond the record developed in the trial court.” Boyd v.
    Cnty. of Henrico, 
    42 Va. App. 495
    , 505 n.4, 
    592 S.E.2d 768
    , 773 n.4 (2004) (en banc); see also
    John v. Im, 
    263 Va. 315
    , 320, 
    559 S.E.2d 694
    , 697 (2002). Items included in the appendix but
    not found within the trial court record cannot be considered by an appellate court. See Albert v.
    Albert, 
    38 Va. App. 284
    , 291 n.2, 
    563 S.E.2d 389
    , 392 n.2 (2002).
    Circumscribed by these important limitations, the record reveals that appellant’s father
    and stepmother filed a petition in the juvenile court seeking to adopt appellant’s child. Child
    Protective Services had earlier removed the child, shortly after birth, from appellant’s custody
    based upon a finding of abuse and neglect. See Appellant’s Br. at 7; Trial Tr. at 6-7. The
    juvenile and domestic relations district court awarded permanent custody of the child to
    appellant’s father and stepmother.
    A court-ordered home study reported favorably on the adoptive couple’s ability to parent
    the child. The home study also noted appellant’s history of drug addiction, bipolar psychiatric
    disorder, and suicide attempts. The child, the report stated, had tested positive at birth for
    cocaine and marijuana. See Appellant’s Br. at 6 (conceding “substance abuse” and the presence
    of “cocaine and marijuana” in the infant at birth). Upon review of the evidence, including the
    home study and the recommendation of the guardian ad litem that the juvenile court authorize
    the adoption over appellant’s objection, the juvenile court held that appellant and the child’s
    biological father withheld their consent to the adoption contrary to the child’s best interests. See
    Code §§ 63.2-1203, -1205. Appellant appealed the juvenile order to the circuit court.
    Appellant’s father and stepmother filed a separate petition for adoption in the circuit
    court, attaching the home study as an exhibit. The circuit court entered an order consolidating
    Fairfax Cnty. Redev. v. Worcester Bros., 
    257 Va. 382
    , 384, 
    514 S.E.2d 147
    , 148 (1999); Taylor
    v. Taylor, 
    27 Va. App. 209
    , 212, 
    497 S.E.2d 916
    , 917 (1998).
    -2-
    the new petition and appellant’s de novo appeal of the juvenile court’s order. The circuit court
    also issued a notice scheduling the trial of the consolidated cases to occur on April 19, 2010. On
    that date, the petitioners (appellant’s father and stepmother), their counsel, the guardian ad litem
    for the child, and appellant’s counsel appeared before the circuit court. Appellant did not appear.
    The petitioners’ counsel explained to the circuit court that appellant “knew that the court
    date was to be today” but chose not to appear, deciding instead to remain in an out-of-state drug
    rehabilitation program and to ask, through counsel, for a continuance. The petitioners’ counsel
    then proffered the evidence contained in the juvenile court transcripts. This evidence showed the
    child was born with cocaine and marijuana in her system, and recounted appellant’s “long
    history of drug abuse and psychiatric problems,” see Trial Tr. at 3, including her confinement in
    a psychiatric center after a suicide attempt, id. at 5-6. The guardian ad litem reported his
    favorable findings concerning the child’s care in the petitioners’ home.
    The circuit court asked appellant’s counsel to explain appellant’s absence. Counsel
    answered that appellant was enrolled in an outpatient substance abuse program. 2 The court
    asked, “so she could have been here today?” Id. at 7. “Right,” counsel replied. Id. Counsel
    added that appellant was “requesting a continuance.” Id. at 8. Counsel for the petitioners asked
    the court to deny the request and decide the case on the proffered evidence, the information in
    the home study, and the factual findings in the report of the guardian ad litem. The circuit court
    agreed and entered two orders.
    The first order, entered on April 19, 2010, stated the court relied upon “the home study
    and the other evidence before the Court” and held, among other things, that appellant had
    abandoned the child pursuant to Code § 63.2-1202(H) and that clear and convincing evidence
    2
    Counsel alluded to two letters she received from drug treatment programs. Neither
    letter was offered into evidence, marked as an exhibit, or otherwise included in the circuit court
    record.
    -3-
    proved appellant withheld her consent to the adoption contrary to the best interests of the child
    under Code § 63.2-1205. 3 The order expressly denied appellant’s motion for a continuance. On
    May 24, 2010, the court entered a second order, entitled “Final Order of Adoption.” It, too,
    noted the court’s denial of the motion for a continuance. The order reflected additional findings
    that “a continuing relationship with the birth mother would be detrimental to the child” and “the
    best interests of the child will be served by the entering of a Final Order of Adoption.”
    Between the entry of the first and second orders, appellant filed in the circuit court a pro
    se notice of appeal and a “letter of appeal” consisting of three typed, single-spaced pages. 4 The
    letter described in great detail the history of the proceedings and appellant’s efforts toward
    rehabilitation, but did not assert that counsel advised appellant not to attend the circuit court
    hearing. At no point after the April 19, 2010 hearing did appellant ask the circuit court to rehear
    the case, reconsider its decisions, or vacate any of its prior orders. See Rule 1:1. Nor did
    appellant ever make the circuit court aware of her allegation that counsel advised her not to
    attend the trial or assert the continuance should have been granted for that reason.
    II.
    On appeal, appellant asserts three assignments of error. First, she argues the circuit court
    “failed to rule” on her continuance motion and failed to take into consideration that she could not
    3
    On brief, appellant states the circuit court “dismissed” her de novo appeal of the
    juvenile court order. See Appellant’s Br. at 4. The court’s orders, however, show that the court
    considered the evidence and addressed the merits of the case.
    4
    “Rule 5A:6(a) provides that no appeal ‘shall be allowed’ unless a notice of appeal has
    been filed within 30 days ‘after’ the appealable order. We have recognized an exception to this
    rule in cases where the appellant files the notice of appeal after the pronouncement of judgment,
    but before the formal entry of the judgment order.” Alliance to Save the Mattaponi v. Va.
    Marine Res. Comm’n, 
    43 Va. App. 724
    , 727, 
    601 S.E.2d 684
    , 685-86 (2004); see also Rule
    5A:6(a) (“A notice of appeal filed after the court announces a decision or ruling — but before the
    entry of judgment or order — is treated as filed on the date of and after the entry.”) (effective
    Jan. 1, 2009).
    -4-
    attend the trial “because she was following a court order mandating her to an inpatient treatment
    center.” Appellant’s Br. at 4. Second, appellant contends the circuit court failed to make factual
    findings required by Code § 16.1-283. Id. at 4-5. Finally, appellant claims she received
    “ineffective assistance of counsel” because her “attorney failed to ask for a continuance,”
    “misstated material facts” to the court, and “advised [her] not to attend the hearing.” Id. at 4-6.
    A. CONTINUANCE OF TRIAL DATE
    Before addressing the continuance issue, we must first clarify the matters not now in
    dispute. Appellant concedes on appeal she knew the trial date. See Appellant’s Br. at 9; Oral
    Argument Audio 2:40 to 2:42. She also admits she “would have been present” at the trial if she
    had “been aware that her absence would be interpreted as disregard for the court proceedings and
    resulted in a negative outcome.” Appellant’s Br. at 11; see also Oral Argument Audio at 4:09 to
    4:19. She thought her counsel would “ask for a continuance” and the court would grant it upon
    learning she was in a drug rehabilitation program. See Oral Argument Audio 4:21 to 4:43. Even
    so, appellant concedes, nothing prevented her from attending trial. See Oral Argument Audio at
    5:22 to 5:57. 5
    Framed by these concessions, appellant’s arguments cannot succeed. She contends she
    failed to appear at trial because her counsel advised her not to appear. According to appellant,
    her counsel advised her that, in order to comply with the prior juvenile court order requiring her
    to complete a ninety-day drug treatment program, she should not leave the program, even for the
    purpose of appearing in court. To support her allegation, appellant includes in the appendix a
    copy of a handwritten letter she wrote to her counsel. Relying solely upon these allegations,
    5
    For purposes of clarifying arguments asserted by appellants, we accept their factual
    concessions arguendo and take them into account in our legal analysis. See, e.g., Price v.
    Commonwealth, 
    51 Va. App. 443
    , 446 n.1, 
    658 S.E.2d 700
    , 701 n.1 (2008); Logan v.
    Commonwealth, 
    47 Va. App. 168
    , 172, 
    622 S.E.2d 771
    , 773 (2005) (en banc).
    -5-
    appellant asserts her counsel failed to make the promised continuance motion and failed to
    truthfully explain why she did not come to court.
    We cannot accept appellant’s arguments in the manner in which she presents them. 6 To
    begin with, the transcript of the hearing shows appellant’s counsel did request a continuance.
    Both of the circuit court’s orders expressly acknowledge the motion was made and denied. The
    record nowhere mentions or alludes to the alleged telephone conversation between appellant and
    her counsel. Nor was the handwritten letter presented to the circuit court or included within the
    circuit court record. See Oral Argument Audio at 4:44 to 5:16. See Jenkins v. Winchester Dep’t
    of Soc. Servs., 
    12 Va. App. 1178
    , 1185, 
    409 S.E.2d 16
    , 20 (1991) (“The burden is upon the
    appellant to provide us with a record which substantiates the claim of error.” (citation omitted)).
    We similarly cannot accept appellant’s claim that her counsel misrepresented facts to the
    circuit court. Counsel said appellant was enrolled in an outpatient rehabilitation program and
    “could have been” present for trial. See Trial Tr. at 7. Nothing in the record refutes this
    statement or shows that appellant was actually enrolled in an inpatient program, as she now
    claims. Moreover, the inpatient/outpatient distinction makes little difference in light of
    appellant’s concession on appeal that she could have left her inpatient program to attend the trial
    if she had been told it was necessary and had pre-arranged to have an escort accompany her to
    court. See Appellant’s Br. at 11; Oral Argument Audio at 4:09 to 4:19, 5:22 to 5:57. Nothing in
    any prior order of the juvenile court or the circuit court forbade appellant’s attendance at the
    circuit court trial. And, as noted earlier, appellant’s allegation that counsel advised her not to
    attend the trial is unsupported by the record.
    6
    This appeal does not involve, and thus we do not address, any assertion that the final
    order should be deemed void because of extrinsic fraud. See generally McCallum v. Salazar, 
    49 Va. App. 51
    , 57, 
    636 S.E.2d 486
    , 489 (2006).
    -6-
    In Virginia, the “decision to grant a motion for a continuance is within the sound
    discretion of the circuit court and must be considered in view of the circumstances unique to
    each case.” Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 
    274 Va. 27
    , 34, 
    645 S.E.2d 261
    ,
    265 (2007). Given appellant’s concessions and the absence of any evidence in the record
    supporting her allegations against her counsel, it cannot be said that the trial court abused its
    discretion in denying the continuance motion.
    For the same reason, we cannot conclude the continuance denial violated appellant’s due
    process rights. Litigants are entitled to “notice reasonably calculated” to apprise them of the
    proceeding, an “opportunity to present their objections,” and “a reasonable time for those
    interested to make their appearance” in court. Oak Hill Nursing Home, Inc. v. Back, 
    221 Va. 411
    , 417, 
    270 S.E.2d 723
    , 726 (1980) (quoting Mullane v. Cent. Hanover Trust Co., 
    339 U.S. 306
    , 314-15 (1950)). In this case, appellant had actual notice of the hearing but chose not to
    attend for reasons not apparent on the record. See Ungar v. Sarafite, 
    376 U.S. 575
    , 589 (1964)
    (holding the test for determining whether continuance denial violated due process considers
    “particularly . . . the reasons presented to the trial judge at the time the request is denied”).
    Under such circumstances, the trial court did not violate appellant’s due process rights by
    proceeding in her absence. 7
    7
    Accord Boddie v. Connecticut, 
    401 U.S. 371
    , 378-79 (1971) (noting it is not a violation
    of due process to enter a civil judgment “against a defendant who, after adequate notice, fails to
    make a timely appearance”); Blinder, Robinson & Co. v. State Corp. Comm’n, 
    227 Va. 24
    , 28,
    
    313 S.E.2d 652
    , 654 (1984) (“The failure to appear after due notice . . . may result in a waiver of
    the hearing required by due process and an entry of judgment by default.” (citing Boddie, 401
    U.S. at 378)); Fox v. Fox, 
    41 Va. App. 88
    , 95, 
    581 S.E.2d 904
    , 907-08 (2003) (holding no
    violation of party’s due process rights where he had “ample notice and opportunity” to be heard,
    but “elected not to participate in the proceedings”).
    -7-
    B. FAILURE TO MAKE FINDINGS UNDER CODE § 16.1-283
    Appellant argues the circuit court compounded its error by failing to make specific
    findings required by Code § 16.1-283. We disagree. Neither the petition filed in the juvenile
    court nor the petition separately filed in the circuit court invoked Code § 16.1-283, the statute
    authorizing the Department of Social Services to seek termination of parental rights, thus making
    possible the transition of a child from temporary foster care to permanent adoption. See
    generally Toms, 46 Va. App. at 266, 616 S.E.2d at 769.
    Instead, both petitions were brought by a couple seeking to adopt the child without the
    birth mother’s consent pursuant to Code §§ 63.2-1242.2 and 63.2-1203. The non-consensual
    adoption proceeding necessarily severs the natural parent’s rights as a precondition to the
    adoption. See Margaret F. Brinig, Virginia Domestic Relations Handbook § 7-2, at 58 (3d ed.
    1996 & Supp. 2002). Equally true, however, the factual findings necessary to severing those
    rights derive solely from Code § 63.2-1203 (incorporating Code § 63.2-1205) and the “detriment
    to the child” finding required by Todd v. Copeland, 
    55 Va. App. 773
    , 790, 
    689 S.E.2d 784
    , 792
    (2010), appeal granted, No. 100929 (Va. Nov. 3, 2010). Having made the findings required by
    Code §§ 63.2-1203, 63.2-1205, and Todd, the circuit court did not err by failing to make
    additional findings under Code § 16.1-283.
    C. INEFFECTIVE ASSISTANCE OF COUNSEL
    Finally, appellant argues she received ineffective assistance of counsel. We question
    whether this theory is cognizable in direct appeals of civil cases, 8 but need not resolve the issue
    8
    “Just as ineffective assistance of counsel in a criminal case is not cognizable on direct
    appeal, similarly in a civil case, it is not an independent basis for error, nor standing alone does it
    meet the ends of justice requirements of Rule 5A:18.” Rollins v. Alexandria Div. of Soc. Servs.,
    No. 1426-03-4, 2004 Va. App. LEXIS 37, at *13 (Va. Ct. App. Jan. 28, 2004). But cf. Wright v.
    Alexandria Div. of Soc. Servs., 
    16 Va. App. 821
    , 825-26, 
    433 S.E.2d 500
    , 503 (1993) (implying
    in dicta a remedy might exist on direct appeal if the appellant had “provided this Court with
    -8-
    in this case. Appellant “contends that if counsel had requested a continuance . . . it would have
    been granted by the court, which would have given [her] an opportunity to show the court that
    her rehabilitative process was successful. [Appellant’s] counsel was therefore ineffective and
    detrimental to [her] case.” Appellant’s Br. at 14. The record shows, however, counsel did make
    the continuance motion and the circuit court denied it.
    Appellant also asserts her counsel made various factual misstatements to the circuit court
    and specifically advised appellant not to appear at the trial. As earlier noted, appellant goes
    beyond the record in her effort to prove these assertions. We cannot overturn a circuit court
    holding based upon allegations unsupported by the record.
    III.
    Our review of this case on direct appeal must confine itself to the boundaries of the
    record. Appellate courts are neither institutionally competent nor statutorily authorized to
    resolve disputed factual allegations. Given these limitations, we hold the circuit court record
    does not support appellant’s challenge to the final order of adoption.
    Affirmed.
    evidence or any basis on which we can determine that the mother did not receive effective
    assistance of counsel”); Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights
    Termination Cases: The Challenge for Appellate Courts, 6 J. App. Prac. & Process 179, 207-09
    (2004) (acknowledging that, while direct appeal may be the fastest method to bring an effective
    assistance of counsel claim, the evidence in the appeal record may be insufficient to judge the
    merits of the claim).
    -9-