               


                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Alston and Russell
UNPUBLISHED


              Argued by teleconference


              TAMERA S. GILBERT
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 1771-16-3                                            JUDGE WILLIAM G. PETTY
                                                                                                 JULY 18, 2017
              WISE COUNTY DEPARTMENT
               OF SOCIAL SERVICES

                                                          FROM THE CIRCUIT COURT OF WISE COUNTY
                                                                     John C. Kilgore, Judge

                                           Jeffery L. Elkins for appellant.1

                                           (Jeremy B. O’Quinn; Julienne D. Hensley, Guardian ad litem for the
                                           minor child; The O’Quinn Law Office, PLLC; Law Offices of
                                           Gregory M. Kallen and Julienne D. Hensley, on brief), for appellee.
                                           Appellee and Guardian ad litem submitting on brief.


                            In this appeal, Tamera S. Gilbert argues:

                                           I. That the trial court committed reversible error by granting the
                                           termination of appellant’s residual parental rights without notice to
                                           the Appellant thereby depriving her of an opportunity to be
                                           present, and to fully and fairly litigate the issues in the case all in
                                           violation of her 14th Amendment right to substantive and
                                           procedural due process.
                                           II. The trial court committed reversible error when it terminated
                                           residual parental rights without achieving service of process on the
                                           parent whose rights were terminated as required by
                                           Virginia Code section 16.1-283.
                                           III. The trial court committed reversible error in terminating
                                           Appellant’s residual parental rights based solely upon the
                                           testimony of the social worker Paul Adams as his testimony did
                                           [sic] establish by clear and convincing evidence the proof

                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                        By an order dated October 26, 2016, the trial court granted the motion of J. Brent
              Fleming to withdraw as Gilbert’s trial counsel for “good cause shown,” which was not included
              in the record. Jeffrey L. Elkins was appointed at that time to represent Gilbert on appeal.
               
 


               necessary and required to terminate Appellant’s residual parental
               rights under Virginia Code Section 16.1-283.

For the reason below, we affirm the circuit court’s decision.

                                           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. We view the facts in the light most favorable to the prevailing party below. Porter

v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008).

       On May 2, 2016, Gilbert signed a notice of appeal of the juvenile and domestic relations

district (JDR) court’s April 26, 2016 order terminating her residual parental rights. Gilbert’s

Pennington Gap, Virginia address had been typed on the form. Pennington Gap is located in Lee

County. The date of appearance for the appeal was filled in with a handwritten notation that it

was “to be set by Wise Co[unty] Circuit Court.” Gilbert’s trial counsel subsequently submitted

to the Wise County Circuit Court a “Notice” stating that a hearing date was set for July 29, 2016.

The notice listed Gilbert’s address in Pennington Gap. Gilbert’s trial counsel asked the clerk of

the circuit court to forward the notice to the Sheriff of Lee County for service of the notice on

Gilbert. The notice was not served, and the Sheriff wrote “does not live at address” on the

return. Gilbert did not appear at the July 29, 2016 trial, and the trial date was rescheduled for

September 12, 2016.

       Gilbert’s trial counsel submitted another “Notice” with Wise County Circuit Court, which

stated the rescheduled hearing date of September 12, 2016. Gilbert’s trial counsel again asked

the clerk to forward this notice to the Sheriff of Lee County for service on Gilbert. Although the

return service on the first notice stated that Gilbert did not reside at the Pennington Gap address

listed, Gilbert’s trial counsel requested service of the second notice on Gilbert at the same
                                                -2-
 


address listed on the first notice. The notice was not served; the return stated, “Does not live at

address. Was advised lived in Wise Co.”2 The record contains no evidence of attempted service

to Gilbert at any address other than the failed one in Pennington Gap.

              On September 12, 2016, the trial court began the proceeding. Before the trial court even

stated the case number, Gilbert’s trial counsel interrupted, “I have not heard from her. Are you

sure service was made?” At the conclusion of the proceeding, Gilbert’s trial counsel stated, “We

waive signing of the order.” That was the full extent of participation in the proceeding by

Gilbert’s trial counsel.

              Upon swearing in of a witness from the Foster Care Program in the Wise County

Department of Social Services (DSS), the following dialogue occurred:

                             By the Court: We have the failure of either parent to try and
                                    strength [sic] the relationship.
                             By [the witness]: I couldn’t locate the mother. She has been in
                                    and out of jail.
                             By the Court: It was April 25th that the order was entered granting
                                    termination.
                             By [the witness]: I had one contact with the mother since August
                                    of last year.
                             By the Court: The department is moving for a finding.
                             By [counsel for DSS]: We are asking to withdraw and keep it in
                                    Juvenile Court.
                             By the Court: I will make that finding that the department has
                                    tried to reach the parties. I am only too glad to dismiss the
                                    case and find the same as Juvenile Court.
                             By [counsel for DSS]: It is in the best interest.
                             By the Court: No, if no contact has been made then the department
                                    is okay.

This was the extent of the testimony and evidence. Neither attorney questioned the witness from

Wise County DSS.




                                                            
              2
          The return was stamped “received” by the Wise County Sheriff’s Office on August 16,
2016, but the record does not contain any indication that the Wise County Sheriff attempted
delivery.
                                               -3-
 


       The order withdrawing appeal stated that “[p]ursuant to proper Notice to all parties,”

Gilbert’s failure to appear, and a motion by Wise DSS to withdraw the appeal pursuant to Code

§ 16.1-106.1(D), “the Court hereby ORDERS that [Gilbert’s] appeal[] be withdrawn, thereby

reinstating the judgment of the Wise County Juvenile and Domestic Relations Court.” The order

also stated that the circuit court had made “findings” regarding the best interests of the child and

the failure of the parents to communicate with the child.

       This appeal followed.

                                             ANALYSIS

       Rule 5A:18 states:

               No ruling of the trial court . . . will be considered as a basis for
               reversal unless an objection was stated with reasonable certainty at
               the time of the ruling, except for good cause shown or to enable the
               Court of Appeals to attain the ends of justice. A mere statement
               that the judgment or award is contrary to the law and the evidence
               is not sufficient to preserve the issue for appellate review.

       The purpose of the rule is to assure “that the trial court is provided an opportunity to rule

intelligently” on an objection or procedural issue raised by a party. Preferred Sys. Sols., Inc. v.

GP Consulting, LLC, 284 Va. 382, 396, 732 S.E.2d 676, 683 (2012). When the issue concerns a

matter of law, such as what constitutes sufficient notice, an objection will be timely so long as it

is raised in a manner that gives the trial court sufficient notice of the argument and time to rule

intelligently on the issue while the case remains under the court’s jurisdiction, even if raised for

the first time in a post-trial motion. See Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521,

525 n.1, 539 S.E.2d 426, 428 n.1 (2000).

       Here, Gilbert was represented at the September 12, 2016 trial, but her trial counsel made

no objection to proceeding without his client present. Gilbert’s trial counsel was unsure if




                                                -4-
 


Gilbert had been given notice regarding the date and time of the hearing,3 but he did not make

any argument for a continuance. Gilbert’s trial counsel made no argument to the court that

Gilbert’s lack of notice or service of process deprived Gilbert of an opportunity to be present,

and to fully and fairly litigate the issue in the case in keeping with her procedural due process

rights. Although the order withdrawing appeal states “Counsel for [Gilbert] objected to” the

motion by Wise County DSS to deem the appeal withdrawn, no such objection by Gilbert’s trial

counsel is preserved in the record. The order withdrawing the appeal was signed by the judge

two weeks after the September 27, 2016 proceeding, but Gilbert’s trial counsel made no motion

for reconsideration during that time nor in the subsequent twenty-one days. See Rule 1:1.

Consequently, the circuit court had no opportunity to rule intelligently on the issue of Gilbert’s

failure to be physically present for the trial on termination of her residual parental rights.

              Furthermore, each of Gilbert’s assignments of error contends, “The trial court committed

reversible error when it terminated residual parental rights” of Gilbert for the reason argued. The

circuit court here, however, did not terminate Gilbert’s residual parental rights. Rather, the order



                                                            
              3
         Gilbert’s trial counsel commented that he had not spoken to his client and asked if she
had been served. It thus appears Gilbert’s trial counsel had made no attempt to contact her. We
note that the Rules of Professional Conduct place the burden of communication with the client
squarely on the lawyer, not the clerk of court.

                             (a) A lawyer shall keep a client reasonably informed about the
                                 status of a matter and promptly comply with reasonable
                                 requests for information.
                             (b) A lawyer shall explain a matter to the extent reasonably
                                 necessary to permit the client to make informed decisions
                                 regarding the representation.
                             (c) A lawyer shall inform the client of facts pertinent to the matter
                                 and of communications for another party that may significantly
                                 affect settlement or resolution of the matter.

Prof. R. of Conduct 1.4. The record does not disclose efforts of Gilbert’s trial counsel to
communicate with her, beyond the failed “Notice” of hearings. 
 
                                                               -5-
 


of the circuit court withdrew Gilbert’s appeal, “thereby reinstating the judgment of the Wise

County Juvenile and Domestic Relations Court” terminating Gilbert’s residual parental rights.4

We do not consider assignments of error that do not address a ruling made by the trial court.

Teleguz v. Commonwealth, 273 Va. 458, 471, 643 S.E.2d 708, 716 (2007).

              Because Gilbert did not object to any action by the circuit court and does not assign error

to any action taken by the circuit court, we conclude Gilbert has waived these arguments on

appeal.

                                                               CONCLUSION

              For the reasons stated above, we affirm the ruling of the circuit court.

                                                                                               Affirmed.




                                                            
              4
        The circuit court’s purported findings of fact included in the order withdrawing appeal
became irrelevant when the appeal was withdrawn and the JDR court decision reinstated.
                                              -6-
