Haugen v. Shenandoah Valley Social Services

• Citation: 645 S.E.2d 261
• Decision Date: 08 June 2007
• Docket Number: Record No. 060869.
• Court: Supreme Court of Virginia
• Parties: Tracy HAUGEN v. SHENANDOAH VALLEY DEPARTMENT OF SOCIAL SERVICES.

645 S.E.2d 261

Tracy HAUGEN v. SHENANDOAH VALLEY DEPARTMENT OF SOCIAL SERVICES.

Record No. 060869.

Supreme Court of Virginia.

June 8, 2007.

From the Court of Appeals of Virginia.

Frank K. Friedman (Kristin B. Johnson, Woods Rogers, on brief), Roanoke, for appellant.

James B. Glick (Vellines, Cobbs, Goodwin & Glass, on brief), for appellee.

Susan B. Reed, Guardian ad litem (Black, Noland & Read, on brief), Staunton, for Wayne Joseph Haugen Trujilliano.

Present: All the Justices.

OPINION BY Chief Justice LEROY R. HASSELL, SR.

In this appeal of a judgment entered by the Court of Appeals, we consider whether a transcript or statement of facts was necessary for the court to determine: whether the circuit court erred by refusing to require an incarcerated parent's presence during a hearing to terminate her parental rights; and whether as a matter of common law the circuit court abused its discretion by failing to grant a continuance to that parent, who participated by telephone, when federal prison officials directed her to terminate her participation.

The Shenandoah Valley Department of Social Services filed petitions for termination of residual parental rights of Tracy L. Haugen and Anthony J. Pacheco in the Juvenile and Domestic Relations District Court of the City of Staunton. Haugen and Pacheco, the unmarried parents of a child, had been convicted of numerous federal crimes related to the distribution of illegal drugs, and they were incarcerated in federal penitentiaries outside of Virginia. Separate guardians ad litem were appointed for Haugen, Pacheco, and the child.

The juvenile and domestic relations district court entered orders terminating the parental rights of Haugen and Pacheco. They appealed the orders to the Circuit Court of the City of Staunton and, as permitted by Code § 16.1-296(D), they received a hearing de novo.

Haugen, who remained incarcerated in a federal penitentiary in West Virginia, filed a petition for a writ of habeas corpus requesting that she be released to the Sheriff's Office of the City of Staunton so that she could attend the circuit court's hearing on the termination of her parental rights. The circuit court did not grant the writ. Subsequently, the circuit court directed Haugen and Pacheco, who were represented in person at the hearing by separate guardians ad litem, to participate by telephone in the hearing to terminate their parental rights.

According to entries in a "Log of Proceedings Electronically Recorded," which is a part of the record, the termination of parental rights hearing commenced at 9:02 a.m. on March 7, 2005. Haugen began her participation in the hearing by telephone at 9:26 a.m. Pacheco began his participation in the hearing by telephone at 9:27 a.m. After several witnesses had testified and numerous exhibits had been admitted in evidence, at 2:16 p.m., Pacheco informed the circuit court that the penitentiary where he was incarcerated was "under lockdown right now [and he] will not be available until tomorrow morning." Pacheco's guardian ad litem, who was also his counsel, requested a continuance or a mistrial in the event that the hearing proceeded without Pacheco's participation by telephone. The circuit court denied the motion, and the hearing proceeded in Pacheco's absence. Haugen remained on the telephone, and she continued to participate in the proceeding.

At 3:49 p.m., Haugen was required to terminate her participation in the hearing. Federal prison officials ordered Haugen to leave the room in the penitentiary where she was using the telephone and they took her to another location in the penitentiary where she was not permitted to use a telephone. The circuit court denied Haugen's motion to continue the hearing until she could participate. The hearing proceeded until 5:20 p.m., and during that 91-minute period when Haugen was absent, two additional witnesses testified.

Subsequently, the circuit court issued a letter opinion and summarized portions, but not all, of the evidence. The circuit court found by clear and convincing evidence that "the best interest and welfare of the child would be served by the termination of both parents' parental rights," and the court entered an order that reflected its rulings in the opinion letter. Among other things, the order granted sole custody of the child to the Shenandoah Valley Department of Social Services and authorized that agency to place the child for adoption and consent to such adoption.

The guardian ad litem for Haugen, who was also her trial counsel, appealed the judgment of the circuit court to the Court of Appeals. The Court of Appeals dismissed Haugen's appeal because her counsel failed to file timely a transcript or statement of facts as required by Rule 5A:8.

Haugen appealed to this Court asserting that the Court of Appeals erred by dismissing her appeal because a transcript or statement of facts was not necessary for the resolution of her appeal; that the circuit court erred by failing to require or permit Haugen to appear physically; and that the circuit court erred in denying Haugen's motion for a continuance when her participation in the circuit court hearing by telephone abated. We awarded Haugen an appeal and appointed new counsel for her.

Haugen asserts that the Court of Appeals erred by dismissing her appeal because a transcript or statement of facts was not necessary to determine the issue whether the circuit court deprived her of her due process rights by failing to ensure that she was physically present at the hearing. Responding, Shenandoah Valley Department of Social Services and the guardian ad litem for the child contend that a review of the transcript or statement of facts is indispensable to a determination whether Haugen's due process rights were violated by the circuit court. Additionally, the Department of Social Services and the child's guardian argue that Haugen did not object to the circuit court's ruling that she participate by telephone and that this Court cannot ascertain without a transcript or statement of facts whether Haugen made such objection.

We agree with Shenandoah Valley Department of Social Services and the child's guardian ad litem. Without a transcript of the proceedings or a statement of facts, this Court cannot ascertain whether Haugen acquiesced in or agreed with the circuit court's ruling that she participate by telephone in the hearing.

Haugen argues that the circuit court erred in denying her motion for a continuance once the federal prison authorities required that she end her participation by telephone in the hearing.¹ Continuing, Haugen asserts that once she was disconnected by telephone, she had no presence whatsoever in the hearing and that she was excluded from approximately 90 minutes of the proceeding.

Responding, Shenandoah Valley Department of Social Services states that the record "does not appear to indicate that Ms. Haugen's telephone connection was faulty or flawed, rather it indicates that she had the opportunity to cross examine witnesses, to testify and to present exhibits." Additionally, the Department of Social Services says: "The record as it stands before the Court of Appeals as well as before [the Supreme] Court has only the vaguest indication included in the Log of Proceedings Electronically Recorded . . . that `Ms. Haugen hangs up the phone.' There is no other explanation for the end of the telephone conference offered or available."

The guardian ad litem for the child argues that Haugen was able to participate by telephone for most of the hearing and that once her participation terminated, only two other witnesses testified. The guardian ad litem for the child also argues that "[i]t is highly unlikely that Ms. Haugen's physical presence or her participation by telephone during the portion of the hearing she missed would have resulted in a different outcome." We disagree with the arguments of Shenandoah Valley Department of Social Services and the child's guardian ad litem.

The record before this Court, even without the transcript, is sufficient to enable this Court to adjudicate the issue whether the circuit court erred by failing to grant Haugen's request to continue the hearing on the termination of her residual parental rights until she could participate.² The "Log of Proceedings Electronically Recorded," which is a part of the record before this Court, indicates that the hearing commenced at 9:02 a.m. and that Haugen's participation ceased at 3:49 p.m. Counsel for Shenandoah Valley Department of Social Services admitted, during oral argument before this Court, that federal prison authorities directed Haugen to leave the room in the penitentiary where she was using the telephone and to go to another area of the prison where she would not be permitted to participate in the hearing by telephone. Clearly, she was deprived of an opportunity to participate in the hearing by telephone.

The "Log of Proceedings Electronically Recorded" contains notations and is not a comprehensive recitation of the hearing. An entry in the log manifests Haugen's counsel's attempt to postpone or terminate the proceeding because of her inability to continue to participate. Although referred to in the log as a "motion for mistrial," it is beyond question that the motion for a mistrial was actually a request to terminate or continue the hearing due to Haugen's inability to participate further. The complete entry in the log provides: "motion for mistrial (my client not available)."

This Court has applied different common law legal standards when reviewing a circuit court's decision to grant or deny a motion for a continuance. For example, we have held that the issue whether "a continuance should be granted or denied is a matter within the sound discretion of the trial court, and a decision one way or the other will not be disturbed on appeal in the absence of a showing that the discretion has been abused." Thomas v....