Berrien v. Greene County Dept. of Public Welfare, 740917
| Decision Date | 05 September 1975 |
| Docket Number | No. 740917,740917 |
| Citation | 216 Va. 241,217 S.E.2d 854 |
| Parties | Merle S. BERRIEN v. GREENE COUNTY DEPARTMENT OF PUBLIC WELFARE and an infant. Record |
| Court | Virginia Supreme Court |
Carroll Kem Shackelford, Culpeper, for plaintiff in error.
John R. Bushey, Jr., Luray (L. B. Chandler, Jr., Charlottesville, on brief), for defendants in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this appeal we are concerned with the custody of an infant daughter, born out of wedlock on September 21, 1967, to Merle S. Berrien and John D. Hess.
This litigation was initiated on March 4, 1971, when Hess filed a petition in the Juvenile and Domestic Relations Court of Greene County (the juvenile court) seeking custody of the child and alleging that Berrien, the mother, was neglecting and abusing her. By order entered by the juvenile court on April 8, 1971, custody was awarded to the mother 'on a probationary period of indeterminate length, to make certain that said natural mother is providing a suitable and adequate home for said child.' On January 25, 1973, the juvenile court ordered that the infant undergo psychiatric examination to determine the effect of the custody arrangement. In July, 1973, temporary custody was awarded to the Department of Public Welfare of Greene County (the Department), and by orders entered August 23, 1973, and February 25, 1974, the juvenile court awarded permanent custody to the Department, authorized the Department to place the child for adoption, and terminated the parental rights of Berrien and Hess. The child is now living with foster parents, who, though found of her, are not willing to adopt her.
On appeal by each of the natural parents the trial court heard evidence and by final order entered May 20, 1974, Nunc pro tunc as of April 8, 1974, in which the court found that the infant's 'best interest would be served' by doing so, terminated the rights of the parents, awarded custody to the Department with the right to place the child for adoption, but ordered that Berrien and Hess be notified of any adoption proceedings. Berrien has appealed this order.
The evidence shows that Berrien, age 46 at the time of the hearing in the trial court, and Hess, then 74, had lived together for some years, during which time Berrien had given birth to three children, of whom two were placed for adoption and the third is the subject of this controversy. Both Berrien and Hess love the child and, indeed, there is evidence that Hess, through an excess of affection, may have been overly indulgent of the little girl. In 1970 Berrien (then Swink) left Hess and married Berrien, by whom she now has a daughter. The Berriens moved to North Carolina in 1972 but returned to Virginia the following year. They lived for a time in Greene County and then moved their house trailer into Orange County to the Pentecostal Campground, where they resided at the time of the hearing.
In its final order the trial court made no finding of unfitness of the mother to have custody of the child, and the evidence does not justify a finding of such unfitness by implication.
Sue Dwoskin, a caseworker for the Department, testified that Berrien was reputed to drink to excess but that if drinking had been the only problem she would not have recommended removal of the child from her mother's custody. The main basis for her recommendation was the interaction of adults, I.e., the animosity between Hess and Berrien. The caseworker asserted that she knew of no physical abuse of the child and that she had seen Berrien under the influence of alcohol on only one occasion.
Berrien, the next witness, testified that she had never been an alcoholic, and that she had not had a drink since July, 1973.
John Fray, a probation officer, testified that in 1971 the Berriens' home was unstable because of Mr. Berrien's unemployment and heavy drinking. Fray, who had not visited the home since December, 1971, testified that he once found Berrien intoxicated and dancing with a man not her husband.
Sheriff Harold T. Chapman, of Greene County, testified that he had not...
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