                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


EDWARD JOHNSON
                                             MEMORANDUM OPINION *
v.   Record No. 0604-00-3                        PER CURIAM
                                                JUNE 27, 2000
ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                     Jonathan M. Apgar, Judge

           (Eric Roland Spencer, on brief), for
           appellant. Appellant submitting on brief.

           (William M. Hackworth, City Attorney;
           Allen T. Wilson, Assistant City Attorney, on
           brief), for appellee. Appellee submitting on
           brief.


     Edward Johnson appeals the decision of the circuit court

terminating his parental rights to his four children.    Johnson

contends that the Roanoke City Department of Social Services (DSS)

failed to present sufficient evidence pursuant to Code

§ 16.1-283(E) to terminate his parental rights to his children

Ishmeal, Alisia or Tina.    Upon reviewing the record and briefs of

the parties, we affirm the decision of the trial court.

     "When addressing matters concerning a child, including the

termination of a parent's residual parental rights, the paramount

consideration of a trial court is the child's best interests."


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,

409 S.E.2d 460, 463 (1991).   "Code § 16.1-283 embodies 'the

statutory scheme for the . . . termination of residual parental

rights in this Commonwealth' [which] . . . 'provides detailed

procedures designed to protect the rights of the parents and their

child,' balancing their interests while seeking to preserve the

family."    Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540

(1995) (citations omitted).   "'In matters of a child's welfare,

trial courts are vested with broad discretion in making the

decisions necessary to guard and to foster a child's best

interests.'"   Logan, 13 Va. App. at 128, 409 S.E.2d at 463

(citation omitted).   The trial judge's findings, "'when based on

evidence heard ore tenus, will not be disturbed on appeal unless

plainly wrong or without evidence to support it.'"    Id. (citation

omitted).

     The facts are not in dispute.      Johnson was convicted of the

malicious wounding of his two-year-old son, Edward Isiah

Johnson.    Following Johnson's conviction, DSS filed petitions to

terminate Johnson's parental rights to all four children,

ranging in age from one to four years old.     DSS did not produce

any evidence during the hearing concerning the other three

children or their relationships with or treatment by Johnson.

The trial court ruled that by proving Johnson maliciously

wounded one of his children, DSS presented prima facie evidence



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sufficient under Code § 16.1-283(E) to terminate Johnson's

parental rights to all four children.

     The statute provides, in pertinent part, as follows:

               The residual parental rights of a
          parent . . . of a child who is in the
          custody of a local board or licensed
          child-placing agency may be terminated by
          the court if the court finds, based upon
          clear and convincing evidence, that it is in
          the best interests of the child and that
          . . . (iii) the parent has been convicted of
          an offense under the laws of this
          Commonwealth . . . which constitutes felony
          assault resulting in serious bodily injury
          or felony bodily wounding resulting in
          serious bodily injury or felony sexual
          assault, if the victim of the offense was a
          child of the parent or a child with whom the
          parent resided at the time of such offense.
          As used in this section, "serious bodily
          injury" means bodily injury which involves
          substantial risk of death, extreme physical
          pain, protracted and obvious disfigurement,
          or protracted loss or impairment of the
          function of a bodily member, organ or mental
          faculty.

Code § 16.1-283(E).   By its express language, Code § 16.1-283(E)

does not limit the authority of the trial court to terminate

parental rights only to children who are the direct victims of

the parent's felonious assault.   The express language of the

statute permits the termination of parental rights of other

children who would be endangered where a parent has maliciously

wounded one of his or her children.    The obvious purpose of the

statute is to allow the court to terminate a parent's parental

rights when the parent's conduct poses a serious endangerment to



                               - 3 -
a child's well-being without requiring that the Court wait until

the child is harmed before terminating the parent's rights.

     In this instance, the trial court ruled that DSS

established a prima facie case under the statute as to all four

of Johnson's children when it proved that he was convicted of

the malicious wounding of his son, Edward Isiah.   While DSS did

not present evidence relating to the other three children during

the hearing, relevant information concerning each of them was

set out in other parts of the record.   The trial court found by

"clear and convincing evidence . . . that the termination of

parental rights is in the best interest" of each of the four

children.   That finding is supported by evidence in the record.

     Accordingly, the decision of the circuit court is affirmed.

                                                   Affirmed.




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Benton, J., dissenting.

     "[T]ermination of the legal relationship between parent and

child is a grave proceeding . . . [which] renders the parent 'a

legal stranger to the child' and severs 'all parental rights.'"

Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921, 926,

265 S.E.2d 692, 695 (1980) (citation omitted).    Thus, the

legislature has specifically required that this drastic and

irreversible action can only be ordered "upon clear and

convincing evidence, that it is in the best interest of the

child."    Code § 16.1-283(E).   When applying this statute, courts

are required to have "a respect for the natural bond between

children and their natural parents" because "preservation of the

family, and in particular the parent-child relationship, is an

important goal for not only the parents but also government

itself."    Weaver, 220 Va. at 926, 265 S.E.2d at 695.

     Although I agree with the majority that Code § 16.1-283(E)

does not limit the authority of the trial judge to terminate

parental rights only as to children who are the direct victims

of felony assault, that is not the issue raised by this appeal.

The trial judge erred in this case in determining that Code

§ 16.1-283(E) created a "statutory directive of a prima facie

case."    Before the trial judge could terminate Johnson's

parental rights to any one of his children under Code

§ 16.1-283(E), the Department was required to prove not only

that Johnson "has been convicted of an offense . . . which

                                 - 5 -
constitutes felony assault resulting in serious bodily injury

. . . [to his] child" but also that "based upon clear and

convincing evidence, that [termination of Johnson's parental

rights] is in the best interests of the child."   Thus, by its

express language, Code § 16.1-283(E) required that the

Department prove by clear and convincing evidence that Johnson

was convicted of the malicious wounding of one of his children

and that the termination of Johnson's parental rights was in the

best interests of each of his children.

     The uncontested evidence established that Johnson broke the

femur of his son, Edward Isiah.   The Department presented no

evidence at the hearing, however, to establish the circumstances

surrounding that event.   The Department also failed to present

evidence concerning Johnson's conduct toward the other children.

Indeed, from the evidence presented at trial, the trial judge

had no basis to know what kind of parent Johnson was for his

other children.   The Department failed to present any evidence

whatsoever concerning the well-being of the children or

Johnson's relationship with them.   In short, no evidence proved

that termination was in the best interests of Johnson's other

three children.

     Under the statute, the trial judge must do more than find,

as he did, that Johnson was convicted of the malicious wounding

of his son.   The trial judge must affirmatively find, based on

clear and convincing evidence, that termination of Johnson's

                               - 6 -
parental rights is in the best interests of each child for whom

a petition is presented.   In the absence of any evidence

concerning the other children, there was insufficient evidence

for the trial judge to make that determination.   The Supreme

Court has consistently ruled that "[c]onclusions unsupported by

facts are insufficient to sever for all time the legal

connection between parent and child."   Ward v. Faw, 219 Va.

1120, 1125, 253 S.E.2d 658, 662 (1979); see also Weaver, 220 Va.

at 929, 265 S.E.2d at 697.

     For these reasons, I believe it was error to terminate

Johnson's rights as to the other three children in the absence

of clear and convincing evidence justifying that action.    I

dissent.




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