Case Information
*1 COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
PAMELA J. HAWKS, A/K/A PAMELA J. WALKER
OPINION BY v. Rеcord No. 2633-96-2 JUDGE LARRY G. ELDER
JULY 15, 1997 DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
James F. D'Alton, Jr., Judge
Linwood T. Wells, III, for appellant.
James H. Ritchie, Jr., for appellee.
Pamela J. Hawks (mother) appeals the trial court's order terminating her residual legal rights to remain the parent of her son, James Leroy Walker (child). She contends that the trial court erred when it concluded that child had not reached an "age of discretion" and did not allow her to secure his presence in court so that he could express his opinion on the termination proceeding. For the reasons that follow, we reverse and remand.
I.
FACTS On July 26, 1989, after being incarcerated, mother signed an entrustment agreement granting custody of child to the Dinwiddie County Department of Social Services (department). Mother was released from incarceration in 1992. After several failed attempts to permanently reunite mother and child, in January, 1996, the department filed a petition seeking the termination of mother's residual parental rights. A juvenile and domestic *2 relations court terminated mother's residual parental rights in June, 1996, and mother appealed to the circuit court (trial court).
The trial court held a hearing on the department's petition on September 17, 1996. The child was not present at the hearing, and mother moved for a continuаnce so that he could be present to testify. Mother argued that child had reached an "age of discretion" and that under Code § 16.1-283(E) the trial court should grant him an opportunity to object to the termination proceeding.
Befоre deciding mother's motion, the trial court heard evidence on the issue of whether child had attained an "age of discretion." Dorthea Townes, a senior social worker with the department, testified that she had been involved with mother's and child's case since its inception. She testified that the child is eleven and one-half years of age and that he is smart, bright, "very good mannered," and "does well [talking] with adults." She testified that child "thinks more like an 11-year- old, not like an oldеr child." She testified that child had problems completing assignments in school during the previous year and had been held back to repeat the fifth grade. She also testified that child has been diagnosed with hyperactivity and depression and currently received therapy and medication for these conditions. She testified that she had met with child approximately four times since the beginning of the termination *3 proceeding and had explained to him "why we were coming tо court and the decisions that the judge makes." She testified that child was capable of explaining to the trial court his feelings about his mother.
Michelle L. Ferris, child's guardian ad litem, also testified on the issue of whether child had reached the "age of discretion." She testified that she met with child several times during the proceedings and that their last meeting took place six months before the termination hearing. She testified:
We discussed all of the proceedings. He will tell you how he feels about his mother and, you know, there is no doubt that he will tell you that he loves her. He will tell that to Mrs. Townes. He will tell that to anybody. He also will tell you, though, that he understands she cannot take care of him. And I think in making that statement that shоws a level of maturity on his part to recognize that he doesn't blame his mother for that, he just accepts it.
She also testified that child appears to be "normal" for his age. She concurred with the opinion of Amy R. Gilbert, child's psychоlogical counselor, that child needs a "nurturing stable structuring environment" to cope with his problems in school.
A report written by Ms. Gilbert was also made part of the record. In the report, Ms. Gilbert stated that child suffered from depression "rеlated to his relationship" with mother. She wrote that child exhibited "attention seeking" behavior that stemmed from his lack of nurturing in his early years. At his foster parents' home, child had "sneaked" food from the kitchen *4 and hidden it under his pillow and had "taken money and toys" from his foster parents and other children. She opined that child will need continued psychiatric treatment "to deal with his depression related to these abandonment issues."
At the conclusion of the testimony, the trial court concluded that child had not reached an "age of discretion" and denied mother's motion for a continuance to secure child's presence. It reasoned that:
I think [Code § 16.1-283(E)] uses the age of 14 for a reason and I think in light of thе history of this child, 11, who is experiencing some psychological, emotional problems, is not on grade at school, has not exhibited any tendencies to make him older than his years, I think that would all have to be taken into considerаtion in determining whether he was at the age of discretion . . . . I think that he at this age -- it would have to be something here to indicate that he is extraordinary and older than most children at 11 and able to comprehend and appreciate the circumstances. I do not find that from the record. (Emphasis added). The trial court proceeded to hear evidence and ordered the termination of mother's residual parental rights.
II.
AGE OF DISCRETION
Mother contends that the trial cоurt erred when it refused to allow her to secure child's presence in court so that he could state his opinion regarding the termination proceeding. Specifically, she argues that the trial court erred when it *5 concluded that child had not reached an "age of discretion" that would have empowered him to block the termination hearing under Code § 16.1-283(E). We agree.
Code § 16.1-283 establishes the procedures and grounds pursuant to which a court may order thе termination of residual parental rights. The section contains a "child preference clause" that limits the power of a court to terminate parental rights in certain circumstances. Code § 16.1-283(E) states:
Notwithstanding any other provisions of this
section, residual parental rights shall not
be terminated if it is established that the
child, if he is 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 who falls under one of the classes of
children described in the statute "must be afforded a meaningful
opportunity to object" to the proceeding to terminate the
residual parental rights of his or her parеnt. Deahl v.
Winchester Dept. of Social Services,
In cases in which the testimony of a child younger than
fourteen is sought, the determination of whether or not the child
has reached an "age of discretion" is committed to the sound
discretion of the trial court. See id. at 676, 299 S.E.2d at
869. However, if the evidence proves that a child is
"sufficiently mature to have intelligent views and wishes on the
subject" of the termination proceeding, then the trial court
*6
should conclude that a child who is younger than fourteen has
reached the "age of discretion." Id. at 675-76, 299 S.E.2d at
869. When determining whether a child is mature enough to have
intelligent views and wishes on the subject, the trial court
should consider all of the circumstances, including the
"сapacity, information, intelligence, and judgment of the child."
Coffee v. Black,
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. See Logan v. Fairfax
County Dept. of Human Development,
We hold that the trial court abused its discretion when it concluded that child had not reached an "age of discretion." The trial cоurt based its conclusion on the finding that no evidence in the record indicated that child was "able to comprehend and appreciate the circumstances" of the termination proceeding. The evidence in the record was insufficient to support this finding.
The only evidence in the record regarding child's knowledge *7 and understanding of the termination proceeding indicates that he was aware of its existence and understood its ramifications. Ms. Townes testified that child was aware of both the juvenile and domestiс relations court's decision terminating mother's parental rights and mother's decision to appeal to the trial court. She testified that she talked with child on four separate occasions about the termination proceeding and that she explained to him "why we were coming to court and the decisions that the judge makes." She also testified that child could explain to the trial judge his feelings about his mother. Ms. Ferris testified that she "discussed all of the procеedings" with child during her last meeting with him and that the two had a "good meeting." Moreover, child neither appeared before nor met with the trial judge to discuss his understanding of the proceeding, and no evidence indicates that child, despite his psychological and emotional problems, was unable to comprehend the information about the proceeding conveyed to him by Ms. Townes and Ms. Ferris. Because the trial court based its conclusion that child had not reаched an age of discretion on a finding not supported by the evidence, its conclusion was an abuse of discretion.
In addition, the trial court's legal analysis of the "age of
discretion" issue is somewhat confusing. Prior to hearing the
еvidence on this issue, the trial court correctly recited the
test for determining whether a child has reached the "age of
discretion" set forth in Deahl. See
However, Code § 16.1-283(E) does not include such a
requirement. Indeed, the statute, as construed in Deahl,
prohibits a trial court from basing its determination of whether
a child has reached the "аge of discretion" solely on
presumptions regarding the child's age. Instead, the focus of
the inquiry is whether the child, regardless of how old he or she
may be, is mature enough to intelligently consider the
circumstances and ramifications of the termination proceeding.
The Deahl test is consistent with the general consensus among
child development theorists and researchers that the
decision-making capabilities of children develop gradually until
they reach аn adult level in their mid-teens but that the pace of
development is dynamic and varies from child to child based on
experience. See Wallace J. Mlyniec, A Judge's Ethical Dilemma:
*9
Assessing a Child's Capacity to Choose, 64 Fordham L. Rev. 1873,
1878-85 (1996) (summаrizing current theory and research on child
development). Thus, Code § 16.1-283(E) requires an assessment of
the particular child's circumstances, including his or her
capacity, information, intelligence, and judgment, in order to
determine whether that child possesses sufficient maturity to
have intelligent views and wishes on the termination of his or
her parent's parental rights. See Deahl,
For the foregoing reasons we reverse the order of the trial court ordering the termination of mother's residual parental rights and remand for proceedings consistent with this opinion.
Reversed and remanded.