Deahl v. Winchester Dept. of Social Services, 820042
| Decision Date | 21 January 1983 |
| Docket Number | No. 820042,820042 |
| Parties | Vester DEAHL and Dottie Deahl v. WINCHESTER DEPARTMENT OF SOCIAL SERVICES. Record |
| Court | Virginia Supreme Court |
Jeffrey L. Milam, Harrisonberg (Hoover, Hoover, Penrod & Davenport, Harrisonberg, on brief), for appellants.
Bruce E. Downing, Winchester, for appellee.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
Vester and Dottie Deahl are the natural parents of Jack Warren Deahl, born November 11, 1967. Upon petition of the Winchester Department of Social Services (Department) and pursuant to Code § 16.1-283, the trial court terminated the Deahls' residual parental rights in their son. This appeal followed.
The essential facts, as outlined in the Department's reports and a circuit court decree dated November 18, 1980, are:
On August 28, 1978, Jack, the eldest of three children, was removed from the Deahl home because of parental abuse and placed in the Department's emergency custody. On September 8, 1978, the juvenile court ordered that Jack remain in the custody and care of the Department. Over the next nine months, Jack responded well to foster placements; the Deahls were offered extensive rehabilitative services, including counseling, psychological assistance, and a parental skills training program. Then, at the recommendation of the Department, the juvenile court, on June 15, 1979, returned Jack to his parents. Six months of supervision by the Department followed.
While in the custody of his parents, Jack's situation again deteriorated. After mid-September, 1979, the Deahls refused to take Jack to his psychologist for his weekly counseling sessions, in spite of being reminded of the order of the juvenile court to that effect. In the presence of other adults, the parents criticized Jack's progress, despite repeated assurances from school personnel that Jack's school performance was satisfactory. Offers of assistance from school personnel were spurned, as were numerous opportunities for alternative treatment for Jack. Instead, the Deahls chose to take their son to West Virginia for testing and then refused to disclose the nature and the results of the tests.
On the morning of October 24, 1979, Deahl learned from Jack the youth's intention not to come home after school that day, but took no immediate action to insure Jack's safe return. The Deahls did later report Jack's running away and assisted in a subsequent search. It was only at the suggestion of Jack's principal, however, that Deahl agreed to pick up his son at school every afternoon. Then, on November 16, 1979, Deahl told the school authorities that it was their responsibility to see that the youth returned home after each school day, and abruptly discontinued picking up Jack.
Three days later, Jack again failed to go home after school and was found by the police wandering on the streets of Winchester late that evening. Jack at that time stated to an official of the juvenile court that, given a choice, he did not want to return home. Because of emotional and physical parental abuse, Jack was returned to the custody of the Department a second time, and has remained there ever since.
From November, 1979, until late May, 1980, the Deahls had no contact with Jack. In contrast to when he was in the custody of his parents, during this period Jack adjusted well to his foster homes, performed adequately at school, and regularly returned to the homes without incident. Visitation with Jack was offered by the Department to his parents provided that the parents would discuss Jack's situation, disclose the nature and location of the earlier West Virginia treatments, and agree that all visitations would be supervised by the Department. The Deahls refused these terms and conditions. It was not until April, 1980, that they sought court-approved visitation rights.
On February 8, 1980, the juvenile court found Jack to be "a child in need of services" under Code § 16.1-228, and ordered that care and custody remain with the Department. In March, 1980, the court approved supervised visitation, provided that it was at the discretion of the Department with Jack's consent. The Department then informed the Deahls that their son had requested that there be no visitation. On May 12, 1980, the juvenile court ordered visitation under terms similar to those originally proposed by the Department.
During the summer of 1980, Deahl made a number of unauthorized contacts with his son, which greatly upset the youth. In fact, on one such occasion, Jack was told that if he did not tell the Department that he wanted to return home, the family would move away and leave Jack to be adopted.
Jack mysteriously disappeared for four weeks in August, 1980. His explanation was that he hitchhiked alone to West Virginia and stayed with family friends without the knowledge of his parents. Deahl, on the other hand, explained that Jack stayed with nearby relatives who failed to notify him of this fact for some time. Deahl offered no corroborative evidence from such relatives to support this explanation despite the opportunity to do so. Deahl also testified that even though he knew Jack had not been located, he and his wife took a three-week vacation in North Carolina. This was contradicted by evidence that Deahl was seen in Winchester on several occasions during the three-week period.
After Jack returned, he was moved to a group home in Harrisonburg which he liked very much. In the appeal of the February 8, 1980, juvenile court decree, the circuit court ordered that Jack remain in the Department's custody. In this decree, dated November 18, 1980, the court made extensive findings of fact before concluding that Jack was a "child in need of services."
The Harrisonburg group home was closed for financial reasons on March 6, 1981, and the Department returned Jack to the Winchester area. As he was riding toward Winchester, Jack became very agitated, stating that he did not wish to come back because he was afraid. Once in Winchester, Jack became very depressed and withdrawn, not wanting to leave the group home during his free time. He became quite upset after an incident where he was alone on a city bus and saw his father on a city street. In late April, 1981, Jack stated that he was afraid to meet either his mother or his father.
On April 29, 1981, the Department moved for termination of the residual parental rights of the Deahls in their son, alleging that the youth had been neglected and abused; that this presented a serious threat to his health and development; and that it was not likely that the conditions which resulted in this abuse could be corrected or eliminated so as to allow Jack's safe return to his parents within a reasonable period of time. In their grounds of defense, the Deahls denied the Department's allegations and further averred that there had never been a determination that they were guilty of neglect or abuse; that they tried unsuccessfully for several years to exercise their visitation privileges; that pursuant to a circuit court order they had visited with Jack in September and October, 1980; and that the Department had been totally uncooperative in scheduling visitation with Jack.
On July 17, 1981, the juvenile court terminated the Deahls' parental rights. The termination order stated that Jack, in chambers with counsel, requested termination and that the guardian ad litem concurred. The Deahls appealed to the circuit court.
In early October, 1981, several days before the hearing, the Deahls visited with Jack for the first time in almost a year.
In a series of pretrial motions, the Deahls requested the judge recuse himself, that their counsel be discharged, and that a continuance be granted. All motions were denied by the court. On October 6, 1981, the circuit court hearing was held. Jack, his guardian ad litem, witnesses for the Department, and counsel for the Department and the Deahls were present. The Deahls did not attend. Their attorney explained that Deahl had stayed home with his wife who was sick and unable to attend. Once again, Deahls' attorney renewed motions for a continuance and a request for withdrawal as counsel, both of which were denied.
On the day of the hearing, Jack was 36 days away from his fourteenth birthday. At the request of the Department and the guardian ad litem, but over the objection of the Deahls' attorney, the court refused to allow Jack to be asked whether he wanted the rights of his parents terminated. The court reasoned:
Here is the thing that concerns me. I want you to have all the rights that you should have, but I don't think it is advisable for this boy to force you to say to this boy, "Jack, do you want to be taken out of the custody of your parents and put with the Welfare?" To me, that is a very damaging thing to ask anyone. I mean, he may want that but he is not going to want to say it or he may say it and then just live with a lifetime on that thing.
It seems to me you have got to try to secure by indirection what you are after and I think the best thing you can do is ask him how he is doing, what his interest is, and so forth. But, I do not want you to ask him to make the choice for himself.
....
How old is he now? Thirteen, going on fourteen? ....
.... All right. I don't think I will permit you to ask him the ultimate question.
How would you all want to do it? Want to let counsel examine him just sort of casually. I think that would be the best way.
Jack was examined extensively by his guardian ad litem and counsel for the Deahls and the Department as to his desires and feelings concerning his parents. At the outset, he was asked by the court whether he preferred making a statement or merely answering questions. Jack chose the latter and testified that his most recent visit with his parents the week earlier had been a good visit; that his parents now seemed more concerned about...
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