                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Decker
UNPUBLISHED


              Argued at Lexington, Virginia


              CHRISTINA ROBINSON
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0778-14-2                                    JUDGE WILLIAM G. PETTY
                                                                                DECEMBER 23, 2014
              MADISON COUNTY DEPARTMENT
               OF SOCIAL SERVICES


                                   FROM THE CIRCUIT COURT OF MADISON COUNTY
                                          Gaylord L. Finch, Jr., Judge Designate

                               Stephanie Cangin for appellant.

                               Deborah Tinsley; Catherine A. Lowe, Guardian ad litem for the
                               infant children, for appellee.


                     Robinson appeals from an order of the circuit court dismissing her appeal from an order

              entered by the Madison County Juvenile and Domestic Relations District Court terminating her

              parental rights to her two children. Robinson argues that the circuit court erred in finding that

              she received proper notice of the circuit court hearing and in treating her appeal as withdrawn

              pursuant to Code § 16.1-106.1. For the following reasons, we reverse and remand.

                                                        I. BACKGROUND

                     Because the parties are fully conversant with the record in this case and this

              memorandum opinion carries no precedential value, we recite below only those facts and

              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

              this appeal. On appeal, “the evidence is viewed in the light most favorable to the prevailing


                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.”

Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463

(1991).

          Robinson is the mother of E.W., born May 20, 2005, and T.W., born April 9, 2007. On

July 10, 2007, the Fauquier County Juvenile and Domestic Relations District (JDR) Court

adjudicated that E.W. was an abused and neglected child and transferred custody of E.W. from

Robinson to his maternal grandparents, Janet and Jimmy Wright. Custody of T.W. was

transferred to the Wrights at the same time.

          On May 10, 2012, E.W. and T.W. were removed from the grandparents’ care due to

abuse and neglect. The Madison County JDR court transferred custody of both children to the

Madison County Department of Social Services (DSS) and approved foster care plans with

concurrent goals of return home to the grandparents and relative placement.

          On October 25, 2013, DSS filed a foster care plan with the goal of adoption and a petition

to terminate Robinson’s residual parental rights with regards to E.W. and T.W. On November

25, 2013, the Madison County JDR court approved the foster care plan with a goal of adoption

and terminated Robinson’s parental rights to both children. Robinson appealed to the circuit

court.1 Docket call took place on January 6, 2014, and the hearing was scheduled for March 25,

2014. Robinson’s guardian ad litem,2 her attorney, was present at both proceedings, but

Robinson herself was not. Robinson was incarcerated at the time of the JDR court hearing and




          1
          The grandparents also filed appeals to the circuit court challenging the change of the
foster care plan goal to adoption.
          2
        Because Robinson was incarcerated during this proceeding she was appointed a
guardian ad litem pursuant to Code § 8.01-9.

                                                 -2-
there is nothing in the record to indicate that she had been released at the time of the circuit court

hearing.3

           On March 25, 2014, DSS made a motion pursuant to Code § 16.1-106.1(D) which states,

in part,

                  If a party who has appealed a judgment or order of a district court
                  fails to appear in circuit court either at the time for setting the
                  appeal for trial or on the trial date, the circuit court may, upon the
                  motion of any party, enter an order treating the appeal as
                  withdrawn and disposing of the case in accordance with this
                  section.

           The circuit court concluded that because Robinson was not present, her appeal would be

treated as withdrawn pursuant to Code § 16.1-106.1(D).4 Robinson’s attorney noted her

objection to dismissing the appeal because Robinson had not received actual notice of the

hearing date.5 The circuit court then found that Robinson had received sufficient notice. This

appeal followed.

                                              II. ANALYSIS

           On appeal, Robinson only assigns error to the circuit court’s finding that legal notice of

the termination of parental rights hearing was proper and sufficient and dismissing the appeal

           3
         Robinson’s attorney told the circuit court that she sent a letter to the Central Virginia
Regional Jail that was returned to her stating that Robinson was no longer in the jail. The record
does not indicate, however, whether at the time of the circuit court hearing Robinson had been
released from incarceration or transferred to another correctional facility.
           4
          Because Robinson’s appeal was treated as withdrawn, the circuit court ruled that the
JDR court orders approving the foster care plan goal of adoption and terminating Robinson’s
parental rights would be final orders. The court then dismissed the grandparents’ appeals for
lack of legal standing. The grandparents filed separate appeals to this Court challenging the
circuit court’s dismissal of their appeals. In an order entered this day, December 23, 2014, we
reversed the circuit court’s decision and remanded for rehearing. See Wright v. Madison Cnty.
Dep’t of Soc. Servs., Nos. 0723-14-2, 0779-14-2 (Va. Ct. App. Dec. 23, 2014).
           5
         DSS argues that Robinson’s objection was insufficient to preserve her argument on
appeal. However, the circuit court transcript indicates that the trial court noted Robinson’s
objection on the issue of adequacy of notice.

                                                   -3-
pursuant to Code § 16.1-106.1(D) when no evidence was presented to the trial court that she had

been served, personally or by substitution, with any process regarding the hearing date in the

circuit court. Whether Robinson received sufficient notice is a question of law subject to de

novo review on appeal. See Farrell v. Warren County Dep’t of Soc. Servs., 59 Va. App. 375,

402, 719 S.E.2d 329, 342 (2012).

        Robinson argues that her due process rights were violated when her appeal was treated as

withdrawn because there was no evidence that she was served with any process regarding the

March 25, 2014 circuit court hearing. DSS responds that Robinson was only entitled to notice of

the JDR court proceedings pursuant to Code § 16.1-283 and that notice to her attorney of the

circuit court hearing date is all that was required on appeal.6

        The United States Supreme Court has recognized that the Fourteenth Amendment’s Due

Process Clause specifically protects the “fundamental right of parents to make decisions

concerning the care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57, 65

(2000). That “liberty interest . . . does not evaporate simply because they have not been model

parents . . . . [P]arents retain a vital interest in preventing the irretrievable destruction of their

family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).

        Due process also requires that a party receive “‘reasonable notice and reasonable

opportunity to be heard . . . .’” Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916

(1991) (quoting Dohany v. Rogers, 281 U.S. 362, 369 (1930)). Reasonable notice must “apprise

interested parties of the pendency of the action and afford them an opportunity to present their

objections.” Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 723, 726

(1980) (quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314-15 (1950)). “The notice

        6
        This Court notes that Robinson was present at the JDR court hearing and it is
undisputed by the parties that she received proper notice of the JDR court hearing and an
opportunity to be heard pursuant to Code § 16.1-283(A).

                                                   -4-
must be of such nature as reasonably to convey the required information, . . . and it must afford a

reasonable time for those interested to make their appearance.” Id.

       The opportunity to be heard is especially important in cases such as this one. This Court

has held that “[t]he termination of parental rights is a grave, drastic, and irreversible action.

When a court orders termination of parental rights, the ties between the parent and child are

severed forever and the parent becomes a ‘legal stranger to the child.’” Martin v. Pittsylvania

Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20-21, 348 S.E.2d 13, 16 (1986) (quoting Lowe v.

Richmond Dep’t of Pub. Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)).

       In fact, the Supreme Court has held that it is an abuse of discretion to deny a continuance

when the parent whose rights are at stake is unable to participate in a termination of parental

rights hearing. Haugen v. Shenandoah Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265

(2007)). In Haugen, the mother was incarcerated but participated in the circuit court termination

hearing by telephone. Id. at 30, 645 S.E.2d at 262. The prison official required the mother to

terminate her telephone connection to the hearing. Id. The circuit court denied counsel’s motion

for a continuance, and the hearing proceeded for another ninety-one minutes without the

mother’s participation. Id. at 30, 645 S.E.2d at 263. The Supreme Court reversed the circuit

court’s denial of the motion for a continuance because the mother was entitled to participate in

the remainder of the hearing. The Court held that:

               In view of the “grave, drastic, and irreversible” effects of a
               judgment terminating a parent’s parental rights, as a matter of
               common law, the circuit court should have granted the
               continuance. Haugen was prejudiced because she was unable to
               participate in an important portion of a proceeding in which she
               was rendered a legal stranger to her biological child.

Id. at 35, 645 S.E.2d at 265 (quoting Lowe, 231 Va. at 280, 343 S.E.2d at 72).




                                                 -5-
       In dissent, Justice Agee noted,

               The majority opinion reaches what can only be seen as the
               adoption of a per se rule: that in termination of parental rights
               cases, the failure by a court to grant a continuance (even when not
               requested) where the subject parent does not participate in some
               part of the hearing is prejudice per se and an abuse of discretion as
               a matter of law. Virginia . . . now holds that in a termination of
               parental rights case a court abuses its discretion as a matter of law
               when it fails to grant a continuance, requested or not, when a
               parent does not participate in some part of a termination
               proceeding even though represented by counsel.

Id. at 44, 645 S.E.2d at 271 (Agee, J., dissenting).

       Guided by the principles in Haugen, we conclude that, absent a voluntary waiver of her

right to be present at the circuit court hearing, Robinson was entitled to attend the hearing.7

Under the circumstances of this case, however, Robinson did not have the opportunity to

voluntarily waive her right to be present at the circuit court hearing because she never received

notice of that hearing.

       DSS has not pointed to any evidence in the record supporting the circuit court’s finding

that Robinson received notice of the circuit court hearing. DSS argued that a notice was mailed

to Robinson at the jail indicating that a date for trial would be scheduled in court on January 6,

2014. However, the only evidence in the record supporting this assertion is a handwritten note

on the bottom of the notice of hearing on appeal indicating that notice was mailed to Robinson

on December 27, 2013. The record shows no other evidence of this mailing, the address to

which it was mailed, or a return receipt to prove that notice of the January 6, 2014 docket call

was actually received. DSS argued that another notice was sent to Robinson indicating that the


       7
         Robinson’s attorney did not request a continuance, and it was not argued on appeal that
a continuance should have nevertheless been granted to allow Robinson’s attorney time to locate
her client. As a result, this Court cannot reach the issue of whether a continuance should have
been granted in this case. However, we use the principles in Haugen to guide our analysis of the
unique facts of this case.

                                                -6-
hearing was set for March 25, 2014 but there is no documentation in the record supporting this

assertion either.

        Additionally, although Robinson’s attorney signed the notice of appeal on behalf of

Robinson, there is no evidence that Robinson received notice of the hearing date from her

attorney. Robinson was not present at the January 6, 2014 docket call when the hearing date was

set. On March 25, 2014, Robinson’s attorney told the circuit court that she had not heard from

Robinson. Robinson’s attorney stated that the mail she sent to Robinson at the Central Virginia

Regional Jail was returned, stating that Robinson was no longer incarcerated there. Robinson’s

attorney said that she did not know where Robinson was and that Robinson had not contacted

her. Thus, there is no evidence in the record supporting the circuit court’s finding that Robinson

received actual notice of the hearing date and chose not to attend.

        This Court notes that while notice to an appellant’s attorney may constitute notice to the

appellant in other circumstances, notice through counsel was insufficient under the unique facts

of this case. Under these facts, where Robinson’s last known address was in a jail, no transport

order was entered to secure Robinson’s presence at docket call, Robinson’s attorney was

unsuccessful in notifying her incarcerated client of the hearing date, and Robinson’s fundamental

right to parent was at stake, notice to Robinson’s attorney alone was insufficient.

        DSS argues that whether Robinson received notice and an opportunity to be heard is

immaterial because Robinson was not prejudiced by the circuit court’s dismissal of her appeal

because it was in the best interests of the children to terminate her parental rights. This argument

fails to recognize that Robinson’s constitutional and statutory rights are not contingent on the

likelihood of her parental rights being terminated. In Santosky, the United States Supreme Court

held that “[i]f anything, persons faced with forced dissolution of their parental rights have a more

critical need for procedural protections than do those resisting state intervention into ongoing

                                                -7-
family affairs. When the State moves to destroy weakened familial bonds, it must provide the

parents with fundamentally fair procedures.” 455 U.S. at 753-54. Thus, regardless of whether or

not Robinson’s appeal was likely to succeed on its merits, due process requires that Robinson be

given notice and an opportunity to be heard.

       Further, Code § 16.1-296 makes clear that the circuit court must conduct a de novo

hearing in termination of parental rights cases on appeal from the juvenile and domestic relations

district courts. “[S]uch a trial de novo in the circuit court grants to a litigant every advantage

which would have been his had the case been tried originally in such court.” Peple v. Peple, 5

Va. App. 414, 419, 364 S.E.2d 232, 236 (1988). Therefore, the burden of proof remained on

DSS to prove that termination of parental rights was in the best interests of the children. Ange v.

York/Poquoson Dep’t of Soc. Servs., 37 Va. App. 615, 629-30, 560 S.E.2d 474, 481 (2002). For

this reason, in Ange, this Court reversed the circuit court’s decision to summarily adjudicate the

termination of a mother’s parental rights without a hearing on the merits, finding that “[t]he legal

process, as well as the trial court’s important appellate role in that process, was thus

short-circuited.” Id. at 630, 560 S.E.2d at 481. Here, treating Robinson’s appeal as withdrawn

relieved DSS of its burden of proof and prevented Robinson from rebutting DSS’s evidence. In

other words, the court “deprived [Robinson] of her day in court on the merits of the case” to

which she was entitled under Code § 16.1-296 and the Fourteenth Amendment’s Due Process

Clause. Id. at 629, 560 S.E.2d at 481. As the Supreme Court noted in Haugen, “[Robinson] was

prejudiced because she was unable to participate in an important portion of a proceeding in

which she was rendered a legal stranger to her biological child.” 274 Va. at 35, 645 S.E.2d at

265.

       There is nothing in the record to indicate that Robinson received notice of the hearing

date and chose not to attend. As such, this is not a case where we can find that the mother

                                                 -8-
voluntarily waived her right to be present. Robinson’s due process and statutory rights were

violated when the circuit court treated her appeal as withdrawn and terminated her parental rights

in her absence and without a de novo hearing. Thus, we conclude that the circuit court erred in

treating Robinson’s appeal as withdrawn.

                                         III. CONCLUSION

       For the foregoing reasons, we reverse the circuit court’s dismissal of the appeal and

remand the case to circuit court for a hearing on the merits.

                                                                         Reversed and remanded.




                                                -9-
