Lloyd Stewart, III v. Hopewell Department of Social Services ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Willis
LLOYD STEWART, III
MEMORANDUM OPINION*
v. Record No. 0710-07-2 PER CURIAM
AUGUST 28, 2007
HOPEWELL DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
W. Allan Sharrett, Judge
(V. Cameille Cromer, on brief), for appellant. Appellant submitting
on brief.
(Joan M. O’Donnell; Nathan C. Lee, Guardian ad litem for the minor
child, on brief), for appellee. Appellee and Guardian ad litem
submitting on brief.
Lloyd Stewart, III (father) appeals the trial court’s decision terminating his residual
parental rights to his minor child, A.D., born on March 8, 2004, pursuant to Code
§ 16.1-283(C)(1) and (C)(2). Father contends the trial court erred in finding that Hopewell
Department of Social Services (HDSS) proved by clear and convincing evidence that father,
without good cause (1) failed to communicate with A.D. on a continuing and planned basis for a
period of six months; (2) failed to maintain continuing contact with and provide or substantially
plan for the future of A.D. for a period of six months after A.D.’s placement in foster care; and
(3) was unable within a reasonable period of time not to exceed twelve months from the date
A.D. was placed in foster care to substantially remedy the conditions which led to or required
continuation of placement in foster care in accordance with father’s obligation under and within
the time limits or goals set forth in the Foster Care Service Plans approved by the Hopewell
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Juvenile and Domestic Relations District Court. In elaborating upon his contentions, father
specifically argues as follows:
[T]he trial court erred in finding that the HDSS met its evidentiary
burden and demonstrated by clear and convincing evidence that
[his] parental rights should be terminated in accordance with Va.
Code Sec. 16.1-283. Specifically, due to his trying to maintain
contact with the child, making progress toward providing her
future by maintaining employment when he was not incarcerated
and by studying to become a minister and get his family together
during his incarceration, the Appellant should have been afforded
the opportunity upon his release from incarceration to continue to
improve his compliance with the Foster Care Services Plan. He
would have been able to take care of his child if the trial court had
given him a reasonable amount of time to complete those
requirements.
For the following reasons, we affirm the judgment of the trial court.
At the outset, HDSS argues father violated Rule 5A:18 by not preserving the issues he
raises now.
[N]either the Code nor Rules of Court mandate a specific
procedure to preserve for appeal an issue objected to in the trial
court. A simple statement that embodies the objection and reason
therefor suffices. However, neither the Code nor Rule 5A:18 is
complied with merely by objecting generally to an order. . . . [I]t
follows that a statement that an order is “seen and objected to”
must also be insufficient.
Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc).
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was stated
together with the grounds therefor at the time of the ruling, except
for good cause shown or to enable the Court of Appeals to attain
the ends of justice.” The purpose of the rule is to allow the trial
court to cure any error called to its attention, thereby avoiding
unnecessary appeals and retrials. Ordinarily, endorsement of an
order “Seen and objected to” is not specific enough to meet the
requirements of Rule 5A:18 because it does not sufficiently alert
the trial court to the claimed error. Such an endorsement is
sufficient to satisfy Rule 5A:18 only if “the ruling made by the trial
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court was narrow enough to make obvious the basis of appellant’s
objection.”
Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000) (citations omitted).
Father’s counsel endorsed the final termination order, “SEEN and OBJECTED TO.”
Father filed a written statement in lieu of a transcript, pursuant to Rule 5A:8(c). However, the
written statement did not recite father’s arguments now raised. The only reference in the written
statement to objections by father’s counsel indicated as follows:
(i) At the beginning of the hearing, counsel for the father
made a motion for a continuance to allow the father additional time
to prepare a home for the child upon his release from incarceration.
(ii) Counsel for the father made an ongoing objection to
the testimony of Mrs. Buck-Denny on the basis that she lacked
firsthand knowledge of the subject matter of her testimony.
(iii) Counsel for the father made an objection to the
introduction of the Foster Care Service Plan and Dispositional
Order dated January 11, 2006 on that [sic] basis that the Foster
Care Service Plan was inadmissible hearsay.
While the written statement indicated that counsel made arguments upon conclusion of
the evidence, it did not contain the content of those arguments. According to Rule 5A:8(c), the
written statement must include “facts, testimony, and other incidents of the case.” Specific
objections intended to preserve an issue for appeal must be included as incidents of the case. Cf.
Wright v. Commonwealth, 4 Va. App. 303, 305, 357 S.E.2d 547, 549 (1987) (noting the written
statement included appellant’s request for a jury, thereby preserving the issue for appeal). Here,
the written statement does not mention or describe any motions to strike, closing arguments,
motions to set aside, or motions to reconsider.1 It only notes father’s motion for a continuance at
1
Counsel may meet the mandates of Rule 5A:18 in many ways. For
instance, counsel may make clear the ground for his objection in a
motion to strike the evidence or in closing argument. Counsel may
also state the grounds therefor during a motion to set aside the
verdict or a motion to reconsider. Likewise, counsel may, if he or
she has previously failed to do so, include an objection and reasons
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the beginning of the hearing, his objection to Buck-Denny’s testimony, and his hearsay objection
to the introduction of the Foster Care Service Plan and the January 11, 2006 dispositional order.
The signed endorsement of the final order of termination indicates father “OBJECTED TO” the
trial court’s ruling, but does not set forth the contested issues.
Father chose not to produce a transcript. He did not file any post-trial motions arguing
his position, and the written statement did not include the “incidents of the case” showing that he
made the arguments he now raises on appeal. Thus, the record before us fails to set forth the
issues raised below.
We cannot assume that [father’s] objection and reasons
were proffered but not made a part of the record. Rule 5A:8
requires [father] to present a complete transcript [or written
statement] for this Court to consider his or her issues on appeal.
Even assuming that the same issues were raised at trial as on
appeal, we do not know if counsel stated legal reasons to support
his theory or merely argued the weight of the evidence.
Lee, 12 Va. App. at 516-17, 404 S.E.2d at 738-39 (citation omitted).
Further, the trial court’s ruling in this case was not “narrow enough to make obvious the
basis of [father]’s objection.” Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993).
The trial court terminated father’s rights under Code § 16.1-283(C)(1) and (C)(2) based on the
following findings:
(a) The Foster Care Service Plans were properly approved
by the J &DR Court. The father was present and represented by
counsel throughout the course of these proceedings.
(b) The father failed to maintain suitable living
arrangements.
(c) The father failed to provide child support.
therefor in the final order or at least tender such an order to the trial
judge.
Lee, 12 Va. App. at 515-16, 404 S.E.2d at 738 (citations omitted).
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(d) The father failed to visit the child on a regular basis.
(e) The father failed to maintain contact with DSS.
(f) The child had been out of her parents’ care for two of
her three years of life.
(g) The child would most likely not recognize the father
due to her young age and the length of time since she last saw him.
(h) There is no history, based on the father’s past conduct,
to show that he could provide for the child in a reasonably
foreseeable time.
Under Code § 16.1-283(C)(1) and (C)(2), the court must consider a number of factors before
ordering the termination of parental rights. We cannot, therefore, determine the basis on which
father objected to this ruling nor could the trial court.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
Finding the issues raised before this Court are procedurally defaulted under Rule 5A:18,
we affirm the judgment of the trial court.
Affirmed.
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