                     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.        Record 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
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 continuance 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.
     Before 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 older 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




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proceeding and had explained to him "why we were coming to 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 shows 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

psychological 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 "related 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


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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 the
            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 consideration 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 court 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




                                 -4-
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 the 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 parent.     Deahl v.

Winchester Dept. of Social Services, 224 Va. 664, 676, 299 S.E.2d

863, 869 (1983).
       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



                                  -5-
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

"capacity, information, intelligence, and judgment of the child."

 Coffee v. Black, 82 Va. 567, 569-70 (1886).      The trial court's

determination will be reversed on appeal only for an abuse of

discretion.
       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, 13 Va. App. 123, 128, 409

S.E.2d 460, 463 (1991).   Where, as here, evidence is heard ore

tenus, we will not disturb the trial court's judgment unless

plainly wrong or without evidence to support it.       See id.; Lowe

v. Dept. of Public Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73

(1986).

       We hold that the trial court abused its discretion when it

concluded that child had not reached an "age of discretion."      The

trial court 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



                                 -6-
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

domestic 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 proceedings" 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 reached 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

evidence 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 224 Va. at 675-76, 299




                                -7-
S.E.2d at 869 (stating that a child is of the "age of discretion"

when he or she is "sufficiently mature to have intelligent views

and wishes on the subject").   However, in its analysis of the

evidence, the trial court appeared to indicate that Code

§ 16.1-283(E) required it to find that child's maturity

level equaled or exceeded that of a fourteen-year-old.    The trial

court stated that "[Code § 16.1-283(E)] uses the age of 14 for a

reason" and that the test for determining whether a child under

14 had reached an age of discretion required "something [in the

record] . . . to indicate that [the child] is extraordinary and

older than most children" of his age.
     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 "age 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 an 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:




                                 -8-
Assessing a Child's Capacity to Choose, 64 Fordham L. Rev. 1873,

1878-85 (1996) (summarizing 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, 224 Va. at 675-76, 299

S.E.2d at 869; Coffee, 82 Va. at 569-70.
     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.




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