                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Decker and AtLee
              Argued at Richmond, Virginia
UNPUBLISHED




              KEITH WAYNE ALVIS
                                                                                             MEMORANDUM OPINION* BY
              v.            Record No. 0914-17-2                                              JUDGE TERESA M. CHAFIN
                                                                                                   APRIL 10, 2018
              AMANDA F. THORNTON
               AND SHAWN B. FOSTER


                                              FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                                          Edward A. Robbins, Jr., Judge

                                           (Bary W. Hausrath; The Law Office of Bary W. Hausrath, PLLC, on
                                           brief), for appellant. No argument for appellant.

                                           No brief or argument for appellees.


                            On May 12, 2017, the Circuit Court of Chesterfield County granted a petition for the

              adoption of M. over the objection of Keith Wayne Alvis, M.’s incarcerated biological father. On

              appeal, Alvis contends that the circuit court erred by denying his motion for the entry of a

              transportation order enabling him to attend the adoption hearing and participate in the

              proceedings.1 Under the circumstances of this particular case, we conclude that the circuit court

              erred by denying Alvis’s motion.

                                                                             I. BACKGROUND

                            “When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light

              most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”



                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                                In light of our resolution of this issue, we do not address Alvis’s additional assignments
              of error.
Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 (2014)

(quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). So viewed,

the evidence is as follows.2

              On June 20, 2016, Shawn B. Foster filed a petition to adopt M., his stepdaughter.

Amanda Thornton, Foster’s wife and the biological mother of M., joined his petition and

consented to the adoption. The petition alleged that Alvis would likely withhold his consent to

the adoption contrary to the best interests of the child. As Alvis was a person under a disability

pursuant to Code § 8.01-2(6)(a) due to his prior felony convictions and current incarceration, the

petition requested the circuit court to appoint a guardian ad litem to represent him. The circuit

court subsequently appointed a guardian ad litem for Alvis on June 22, 2016.

              On February 13, 2017, Alvis filed a motion for a transportation order. Alvis requested

the circuit court to enter an order directing officials from the Virginia Department of Corrections

to transport him to court on February 22, 2017, the day of the adoption hearing, to allow him to

testify and otherwise participate in the proceedings. Alvis stated that he planned to testify about

“his efforts to assert his parental rights” and “the quality of his previous relationship” with M.

He also planned to “respond to the specific factual allegations of the petition and expected

testimony regarding his past conduct.” As other individuals were not available to testify on his

                                                            
              2
          As a preliminary matter, we note that the record does not contain a transcript of the
adoption hearing or a timely filed written statement of facts describing the proceedings. In order
to become part of the record, a written statement of facts must be filed in the office of the clerk
of the circuit court within fifty-five days after the entry of a final judgment. See Rule
5A:8(c)(1). Alvis filed a written statement of facts on July 7, 2017, fifty-six days after the entry
of the final order of adoption in this case. Therefore, the written statement of facts did not
become a part of the record. Upon review, however, we conclude that the record of the present
case is sufficient to allow us to address Alvis’s argument regarding the denial of his motion for a
transportation order, notwithstanding the absence of a transcript or written statement of facts
pertaining to the relevant proceedings. See, e.g., Turner v. Commonwealth, 2 Va. App. 96, 99,
341 S.E.2d 400, 402 (1986) (“If the record on appeal is sufficient in the absence of the transcript
[or written statement of facts] to determine the merits of the appellant’s allegations, we are free
to proceed to hear the case.”).
                                                   ‐ 2 ‐ 
behalf, Alvis maintained that his testimony was necessary to allow the circuit court to determine

whether the adoption of M. by Foster was in her best interests. Additionally, Alvis represented

that Thornton and Foster did not object to his transportation or presence at the hearing.

       The circuit court denied Alvis’s motion on February 15, 2017. The circuit court’s order

denying the motion did not contain a detailed explanation of the reasoning supporting the

decision. The order indicated, however, that the decision was based upon the consideration of

Code § 8.01-410 and a report from the local department of social services filed with the circuit

court pursuant to a prior order of reference.

       Due to the denial of his motion for a transportation order, Alvis was not present at the

adoption hearing held on February 22, 2017. He also did not participate in the hearing by

telephone or video conference. At the conclusion of the hearing, the circuit court determined

that Alvis’s consent to the adoption was withheld contrary to M.’s best interests and granted the

adoption petition.

       On March 7, 2017, Alvis filed a detailed motion requesting the circuit court to reconsider

its decision to deny his motion for a transportation order. Alvis explained that the crimes for

which he was incarcerated were primarily nonviolent and did not involve Thornton or Foster. He

also emphasized the grave consequences of the proceedings, noting that the adoption of M. and

subsequent termination of his parental rights was essentially a “parental death penalty.” Alvis

maintained that his testimony would have been probative regarding many factors relevant to the

adoption proceedings and that the denial of his motion for a transportation order prevented him

from presenting evidence at the hearing. Under these circumstances, Alvis contended that the

denial of his motion for a transportation order violated his due process rights guaranteed by the

Fourteenth Amendment of the United States Constitution.




                                                ‐ 3 ‐ 
         The circuit court denied Alvis’s motion to reconsider on April 19, 2017, and entered an

order memorializing the decision announced orally at the conclusion of the February 22, 2017

adoption hearing on May 12, 2017. Alvis timely appealed the circuit court’s decision to this

Court.

                                            II. ANALYSIS

         On appeal, Alvis contends that the circuit court abused its discretion by denying his

motion for a transportation order. We agree with Alvis.

         Code § 8.01-410 addresses the appearance of incarcerated individuals as witnesses in

civil cases. In pertinent part, that statute states:

                Whenever any party in a civil action in any circuit court in this
                Commonwealth requires as a witness in his behalf, an inmate in a
                state or local correctional facility as defined in [Code] § 53.1-1, the
                court, on the application of such party or his attorney may, in its
                discretion and upon consideration of the importance of the
                personal appearance of the witness and the nature of the offense
                for which he is imprisoned, issue an order to the Director of the
                Department of Corrections to deliver such witness to the sheriff of
                the jurisdiction of the court issuing the order. . . . The sheriff shall
                transport the inmate to the court to testify as such witness, and
                after he has testified and been released as such witness, the sheriff
                shall return the witness to the custody of the Department.

Code § 8.01-410. A court’s decision to order the transportation of an incarcerated individual

pursuant to Code § 8.01-410 will not be disturbed in the absence of an abuse of discretion. See

Code § 8.01-410; Commonwealth ex rel. Va. Dep’t of Corr. v. Brown, 259 Va. 697, 704, 529

S.E.2d 96, 100 (2000).

         In its order denying Alvis’s motion for a transportation order, the circuit court expressly

noted that it considered the requirements of Code § 8.01-410 in reaching its decision.

Presumably, the circuit court denied Alvis’s motion after considering: 1) the importance of his

testimony and personal appearance at the hearing, and 2) the nature of the offenses for which he

was imprisoned. See Code § 8.01-410. The circuit court improperly weighed both factors. The
                                                   ‐ 4 ‐ 
importance of Alvis’s participation in the adoption hearing was heightened by the nature of the

proceedings, and his prior criminal offenses did not justify prohibiting him from participating in

the hearing.

              In Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 645 S.E.2d 261

(2007), an incarcerated parent was not allowed to fully participate in a hearing regarding the

termination of her parental rights. The circuit court presiding over the termination hearing

refused to issue an order allowing the incarcerated parent to personally appear at the hearing. Id.

at 29, 645 S.E.2d at 262. The circuit court, however, allowed the incarcerated parent to

participate in the hearing by telephone. Id. at 30, 645 S.E.2d at 262. Although the incarcerated

parent participated in the majority of the hearing, she was forced to stop participating when

prison officials ordered her to leave the room where she accessed the telephone. Id. at 30, 645

S.E.2d at 262-63. Thus, the incarcerated parent did not participate in the last ninety-one minutes

of the hearing or hear the testimony presented by the final two witnesses testifying in the case.

Id. at 30, 645 S.E.2d at 263. Counsel for the incarcerated parent moved to continue the hearing

until the incarcerated parent could resume her participation, but the circuit court denied the

motion. Id.

              In Haugen, the Supreme Court concluded that the circuit court abused its discretion by

denying the incarcerated parent’s motion to continue the case.3 Id. at 34, 645 S.E.2d at 265. The

Supreme Court noted that the termination of the incarcerated parent’s parental rights would

forever extinguish any legal relationship between the parent and the child. Id. at 35, 645 S.E.2d

at 265. The Supreme Court then explained:

                             In view of the “grave, drastic, and irreversible” effects of a
                             judgment terminating a parent’s parental rights, as a matter of
                                                            
              3
         We note that Haugen was also decided in the absence of a transcript of the relevant
hearing or a written statement of facts describing the proceedings. See Haugen, 274 Va. at 32,
645 S.E.2d at 264.
                                                ‐ 5 ‐ 
               common law, the circuit court should have granted the
               continuance. [The incarcerated parent] 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. (quoting Lowe v. Dep’t of Pub. Welfare of the City of Richmond, 231 Va. 277, 280, 343

S.E.2d 70, 72 (1986)).

       This Court addressed a similar situation in Mabe v. Wythe Cty. Dep’t of Soc. Servs., 53

Va. App. 325, 671 S.E.2d 425 (2009). In Mabe, a parent facing proceedings to terminate her

parental rights was incarcerated in an Arizona federal prison. Id. at 328, 671 S.E.2d at 426.

Although the circuit court presiding over the proceedings issued a writ directing federal officials

to transport the incarcerated parent to the termination hearing, the officials failed to transport the

incarcerated parent to Virginia by the date of the hearing. Id. When counsel for the incarcerated

parent moved to continue the termination hearing to allow the incarcerated parent to be present,

the circuit court continued the case for six days. Id. at 328, 671 S.E.2d at 426-27. The

incarcerated parent objected to the brief continuance, arguing that it did not provide sufficient

time for her to be transported to Virginia. Id. at 328-29, 671 S.E.2d at 427. The circuit court

overruled the objection and held the termination hearing six days later in the incarcerated

parent’s absence. Id. at 329, 671 S.E.2d at 427.

       Following the principles set forth in Haugen, this Court concluded that the incarcerated

parent “was entitled to attend or otherwise participate in the hearing that terminated her parental

rights.” Id. at 334, 671 S.E.2d at 428. This Court noted that the incarcerated parent did not

voluntarily fail to attend or participate in the hearing. Id. at 331, 671 S.E.2d at 428. Like the

Supreme Court in Haugen, this Court explained that the incarcerated parent “was prejudiced

because she was unable to participate in the proceeding that rendered her a legal stranger to her

biological children.” Id. at 334, 671 S.E.2d at 429. Therefore, this Court concluded that the



                                                 ‐ 6 ‐ 
circuit court abused its discretion by failing to continue the case until the incarcerated parent

could participate in the hearing. Id.

       Like the incarcerated parents in Haugen and Mabe, Alvis was prohibited from

participating in a hearing that irreversibly severed his legal connection to his daughter. When the

circuit court granted Foster’s petition for adoption, it functionally terminated Alvis’s residual

parental rights pertaining to M. and ended his legal relationship with her. As the circuit court

denied Alvis’s motion for a transportation order, he could not attend the adoption hearing.

Therefore, Alvis was denied the opportunity to testify and observe the proceedings.

       Although Alvis’s participation in the hearing through alternative methods may have

assured him due process, see Brown, 259 Va. at 707, 529 S.E.2d at 102, the record of this case

failed to establish that Alvis was offered any opportunity to participate in the adoption hearing.

Alvis did not participate in the hearing by telephone like the incarcerated parent in Haugen. He

also did not participate in the hearing via videoconferencing facilities that may have been

available at the prison where he was incarcerated. As Alvis was prohibited from personally

attending the adoption hearing and he did not participate in the hearing through other methods,

he was denied any ability to participate in the “grave, drastic, and irreversible” proceedings at

hand. See Haugen, 274 Va. at 35, 645 S.E.2d at 265; Mabe, 53 Va. App. at 333, 645 S.E.2d at

428.

       We acknowledge that Haugen and Mabe involved the denial of an incarcerated parent’s

motion for a continuance, whereas the present case involves the denial of a motion for a

transportation order pursuant to Code § 8.01-410. This distinction, however, is without

importance. The denial of a motion for a transportation order in this case was the practical

equivalent of the denial of the continuance motions in Haugen and Mabe. Like the denial of the




                                                 ‐ 7 ‐ 
continuance motions in Haugen and Mabe, the denial of the motion for a transportation order

prevented Alvis from participating in M.’s adoption hearing.

       While the circuit court failed to appropriately weigh the importance of Alvis’s

participation in the adoption hearing, we also note that Alvis’s prior criminal offenses did not

support the circuit court’s decision. The report from the local department of social services

considered by the circuit court indicated that Alvis was currently incarcerated for convictions of

“breaking and entering, grand larceny, and entering a house to commit assault and battery.”

These convictions, standing alone, did not justify the circuit court’s decision to deny Alvis’s

motion for a transportation order. Although the report stated that Alvis was physically violent

toward Thornton before his incarceration, both Thornton and Foster did not object to the motion

for a transportation order or Alvis’s presence at the hearing.

       Under the circumstances of the present case, Alvis was prohibited from participating in

the adoption hearing that resulted in the termination of his parental rights. While the circuit

court may have ultimately assigned little weight to Alvis’s testimony, he should have been

allowed to participate in the adoption hearing. Following the principles established by Haugen

and Mabe, we conclude that the circuit court abused its discretion by denying Alvis’s motion for

a transportation order without ensuring that Alvis had the opportunity to participate in the

proceedings.

                                       III. CONCLUSION

       In summary, we hold that the circuit court erred by denying the motion at issue in this

case. Accordingly, we reverse the circuit court’s decision and remand this case for a rehearing

consistent with the views expressed in this opinion.

                                                                           Reversed and remanded.




                                                ‐ 8 ‐ 
