Hughes v. Hughes
| Decision Date | 08 March 2011 |
| Docket Number | Record No. 1530-10-1 |
| Parties | DANIELLE NICHOLE HUGHES v. DANIEL NICHOLAS HUGHES AND LINDA SMITH HUGHES |
| Court | Virginia Court of Appeals |
Present: Judges Frank, Kelsey and McClanahan
Argued in Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Danielle Hughes, pro se.
Gary B. Allison (Kevin Diamonstein, Guardian ad litem; Gary B. Allison, P.C.; Patten, Wornom, Hatten & Diamonstein, on brief), for appellees.
Appearing pro se on appeal, Danielle Nichole Hughes challenges a circuit court order authorizing, over her objection, the adoption of her daughter by appellant's father and stepmother. Based upon the limited record before us, we affirm.
As an appellate court, we review the evidence "in the 'light most favorable' to the prevailing party in the circuit court and grant to that party the benefit of 'all reasonable inferences fairly deducible therefrom.'" Toms v. Hanover Dep't of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767 (2005) (citation omitted).1 In addition, "[u]nder basic principlesof appellate review, we may not go beyond the record developed in the trial court." Boyd v. Cnty. of Henrico, 42 Va. App. 495, 505 n.4, 592 S.E.2d 768, 773 n.4 (2004) (en banc); see also John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 697 (2002). Items included in the appendix but not found within the trial court record cannot be considered by an appellate court. See Albert v. Albert, 38 Va. App. 284, 291 n.2, 563 S.E.2d 389, 392 n.2 (2002).
Circumscribed by these important limitations, the record reveals that appellant's father and stepmother filed a petition in the juvenile court seeking to adopt appellant's child. Child Protective Services had earlier removed the child, shortly after birth, from appellant's custody based upon a finding of abuse and neglect. See Appellant's Br. at 7; Trial Tr. at 6-7. The juvenile and domestic relations district court awarded permanent custody of the child to appellant's father and stepmother.
A court-ordered home study reported favorably on the adoptive couple's ability to parent the child. The home study also noted appellant's history of drug addiction, bipolar psychiatric disorder, and suicide attempts. The child, the report stated, had tested positive at birth for cocaine and marijuana. See Appellant's Br. at 6 (). Upon review of the evidence, including the home study and the recommendation of the guardian ad litem that the juvenile court authorize the adoption over appellant's objection, the juvenile court held that appellant and the child's biological father withheld their consent to the adoption contrary to the child's best interests. See Code §§ 63.2-1203,-1205. Appellant appealed the juvenile order to the circuit court.
Appellant's father and stepmother filed a separate petition for adoption in the circuit court, attaching the home study as an exhibit. The circuit court entered an order consolidatingthe new petition and appellant's de novo appeal of the juvenile court's order. The circuit court also issued a notice scheduling the trial of the consolidated cases to occur on April 19, 2010. On that date, the petitioners (appellant's father and stepmother), their counsel, the guardian ad litem for the child, and appellant's counsel appeared before the circuit court. Appellant did not appear.
The petitioners' counsel explained to the circuit court that appellant "knew that the court date was to be today" but chose not to appear, deciding instead to remain in an out-of-state drug rehabilitation program and to ask, through counsel, for a continuance. The petitioners' counsel then proffered the evidence contained in the juvenile court transcripts. This evidence showed the child was born with cocaine and marijuana in her system, and recounted appellant's "long history of drug abuse and psychiatric problems," see Trial Tr. at 3, including her confinement in a psychiatric center after a suicide attempt, id at 5-6. The guardian ad litem reported his favorable findings concerning the child's care in the petitioners' home.
The circuit court asked appellant's counsel to explain appellant's absence. Counsel answered that appellant was enrolled in an outpatient substance abuse program.2 The court asked, "so she could have been here today?" Id. at 7. "Right," counsel replied. Id. Counsel added that appellant was "requesting a continuance." Id. at 8. Counsel for the petitioners asked the court to deny the request and decide the case on the proffered evidence, the information in the home study, and the factual findings in the report of the guardian ad litem. The circuit court agreed and entered two orders.
The first order, entered on April 19, 2010, stated the court relied upon "the home study and the other evidence before the Court" and held, among other things, that appellant had abandoned the child pursuant to Code § 63.2-1202(H) and that clear and convincing evidenceproved appellant withheld her consent to the adoption contrary to the best interests of the child under Code § 63.2-1205.3 The order expressly denied appellant's motion for a continuance. On May 24, 2010, the court entered a second order, entitled "Final Order of Adoption." It, too, noted the court's denial of the motion for a continuance. The order reflected additional findings that "a continuing relationship with the birth mother would be detrimental to the child" and "the best interests of the child will be served by the entering of a Final Order of Adoption."
Between the entry of the first and second orders, appellant filed in the circuit court a pro se notice of appeal and a "letter of appeal" consisting of three typed, single-spaced pages.4 The letter described in great detail the history of the proceedings and appellant's efforts toward rehabilitation, but did not assert that counsel advised appellant not to attend the circuit court hearing. At no point after the April 19, 2010 hearing did appellant ask the circuit court to rehear the case, reconsider its decisions, or vacate any of its prior orders. See Rule 1:1. Nor did appellant ever make the circuit court aware of her allegation that counsel advised her not to attend the trial or assert the continuance should have been granted for that reason.
On appeal, appellant asserts three assignments of error. First, she argues the circuit court "failed to rule" on her continuance motion and failed to take into consideration that she could notattend the trial "because she was following a court order mandating her to an inpatient treatment center." Appellant's Br. at 4. Second, appellant contends the circuit court failed to make factual findings required by Code § 16.1-283. Id. at 4-5. Finally, appellant claims she received "ineffective assistance of counsel" because her "attorney failed to ask for a continuance," "misstated material facts" to the court, and "advised [her] not to attend the hearing." Id. at 4-6.
Before addressing the continuance issue, we must first clarify the matters not now in dispute. Appellant concedes on appeal she knew the trial date. See Appellant's Br. at 9; Oral Argument Audio 2:40 to 2:42. She also admits she "would have been present" at the trial if she had "been aware that her absence would be interpreted as disregard for the court proceedings and resulted in a negative outcome." Appellant's Br. at 11; see also Oral Argument Audio at 4:09 to 4:19. She thought her counsel would "ask for a continuance" and the court would grant it upon learning she was in a drug rehabilitation program. See Oral Argument Audio 4:21 to 4:43. Even so, appellant concedes, nothing prevented her from attending trial. See Oral Argument Audio at 5:22 to 5:57.5
Framed by these concessions, appellant's arguments cannot succeed. She contends she failed to appear at trial because her counsel advised her not to appear. According to appellant, her counsel advised her that, in order to comply with the prior juvenile court order requiring her to complete a ninety-day drug treatment program, she should not leave the program, even for the purpose of appearing in court. To support her allegation, appellant includes in the appendix a copy of a handwritten letter she wrote to her counsel. Relying solely upon these allegations, appellant asserts her counsel failed to make the promised continuance motion and failed to truthfully explain why she did not come to court.
We cannot accept appellant's arguments in the manner in which she presents them.6 To begin with, the transcript of the hearing shows appellant's counsel did request a continuance. Both of the circuit court's orders expressly acknowledge the motion was made and denied. The record nowhere mentions or alludes to the alleged telephone conversation between appellant and her counsel. Nor was the handwritten letter presented to the circuit court or included within the circuit court record. See Oral Argument Audio at 4:44 to 5:16. See Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991) .
We similarly cannot accept appellant's claim that her counsel misrepresented facts to the circuit court. Counsel said appellant was enrolled in an outpatient rehabilitation program and "could have been" present for trial. See Trial Tr. at 7. Nothing in the record refutes this statement or shows that appellant was actually enrolled in an inpatient program, as she now claims. Moreover, the inpatient/outpatient distinction makes little difference in light of appellant's concession on appeal that she could have left her inpatient program to attend the trial if she had been told it was necessary and had pre-arranged to have an escort accompany her to court. See Appellant's Br. at...
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