Norfolk Div. of Social Services v. Unknown Father
| Decision Date | 17 June 1986 |
| Docket Number | 0014-85 and 0044-85,0120-84,Nos. 0119-84,s. 0119-84 |
| Citation | 345 S.E.2d 533,2 Va.App. 420 |
| Parties | NORFOLK DIVISION OF SOCIAL SERVICES v. UNKNOWN FATHER. NORFOLK DIVISION OF SOCIAL SERVICES v. Lloyd WILLIAMS, et al. T.L.W., an infant v. UNKNOWN FATHER, et al. A.K.W., an infant v. UNKNOWN FATHER, et al. Record |
| Court | Virginia Court of Appeals |
Martha G. Rollins, Asst. City Atty. (Philip R. Trapani, City Atty., on brief), for Norfolk Div. of Social Services.
Jack B. Stokes, Norfolk, for T.L.W.
Robin L. Tolerton (Smith & Tolerton, Norfolk, on brief), for A.K.W.
David L. Williams (Andrew M. Sacks, Sacks, Sacks & Larkin, Norfolk, on brief), for Lloyd and Colleen Williams.
No brief or argument for appellee Unknown Father.
Present: BAKER, BARROW and HODGES, JJ.
These four cases consolidated for purposes of appeal concern various orders of the circuit court relating to the custody of the son of an unwed minor. The cases arose from the filing of two petitions: (1) a petition filed by A.K.W., the mother of the child, requesting approval by the juvenile and domestic relations district court of an entrustment agreement entered into between her and the Norfolk Division of Social Services; and (2) a petition filed by Lloyd and Colleen Williams, the grandparents of the infant, requesting the court to grant custody to them. The two matters were heard on January 27, 1984. The court approved the agreement and denied the grandparents' custody request. Both cases were appealed to Circuit Court of the City of Norfolk.
The circuit court heard the appeals at the same time. The court reappointed the guardians ad litem for A.K.W., the infant and the unknown father. In addition, it held that Lloyd and Colleen Williams were proper parties to intervene in the entrustment agreement case. In the final order, it held that A.K.W. was under the influence of duress at the time she entered into the entrustment agreement and that it was, therefore, null and void. The court awarded care and custody of the infant to Lloyd and Colleen Williams pending further order of the court. On the motion of the division of social services, we granted a stay of the transfer of the infant to his grandparents pending appeal. We hold that the evidence of fraud and duress was insufficient as a matter of law to void the entrustment agreement. For this reason, we reverse.
The petition filed by A.K.W. pursuant to Code § 16.1-241(A)(4) 1 on October 14, 1983, alleged that the infant's father was unknown, that the infant was the subject of an entrustment agreement and requested that the juvenile and domestic relations district court terminate the residual parental rights of A.K.W. and those of the unknown father pursuant to Code § 16.1-283. The petition further requested that the child's custody be awarded to the Norfolk Division of Social Services for adoption planning.
The entrustment agreement, dated September 7, 1983, states that A.K.W. "after due consideration of all practicable alternative plans for future of the aforesaid child, hereby agrees to surrender by this Entrustment Agreement and does hereby surrender all legal custody of and to the aforesaid child to aforesaid Board." The agreement further recites that A.K.W. understood that her separation from the child would be permanent and that all parental rights and obligation to the child would be terminated as of the effective date of the agreement. Finally, the agreement provides that after September 22, 1983, the agreement could not be revoked.
On October 20, 1983, Colleen and Lloyd Williams filed a petition for custody of the child, stating that the father was unknown and alleging that the child's custody required determination since he was presently in child care pending adoption planning.
After the juvenile and domestic relations district court terminated all parental rights of A.K.W. and the father of the infant and awarded custody to the Norfolk Division of Social Services for adoption planning, an appeal of the order of termination was noted by Keith Thurman, guardian ad litem for the unknown father. Lloyd and Colleen Williams also noted an appeal to the denial of their custody petition.
The division of social services and the guardian ad litem for the child first argue that the guardian ad litem for the unknown father had no standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court. They argue that the unknown father was given proper notice of the January 28, 1984 hearing in juvenile court, and when he did not appear his representation by his guardian ad litem ceased. However, it is clear from the record that if the guardian ad litem had not appealed the juvenile court decision to the circuit court, none of the evidence elicited in circuit court about the father's identity would have been developed. 2 By pursuing the appeal, the guardian ad litem protected whatever rights the "father" of the child had. The guardian properly pursued all leads to determine the father's identity so that the father would not be ignored in the proceeding terminating parental rights.
The guardian ad litem was originally appointed in the juvenile and domestic relations district court 3. The division of social services presented A.K.W.'s affidavit proclaiming the father to be "unknown", yet the guardian informed the circuit court:
The duties of a guardian ad litem cannot be specifically spelled out as a general rule, but the underlying criteria are stated in Code § 8.01-9: "Every guardian ad litem shall faithfully represent the estate or other interest of the person under a disability for whom he is appointed, and it shall be the duty of the court to see that the interest of such defendant is so represented and protected." 4 (emphasis added). In the juvenile and domestic relations district court, counsel may be appointed guardian ad litem to represent the interests of a parent in cases where the custody of the child requires determination. Code § 16.1-266(D). Pursuant to Code § 16.1-266 the attorney so appointed shall represent the parent at any hearing held and at all other stages of the proceedings until relieved or replaced in a manner provided by law. Code § 16.1-268. 5
The division of social services and the guardian ad litem for the child contend that the approval by the juvenile court of the entrustment agreement was not appealable by the unknown father's guardian ad litem since there was no "real" person in interest to be protected. Based upon this reasoning, the division of social services filed a motion with the Circuit Court of the City of Norfolk to dismiss the appeal and remand it to the juvenile and domestic relations district court. The division's contention was that the unknown father was given statutory notice of the hearing in the juvenile court, failed to appear, and was, therefore, not a "party" entitled to pursue the appeal. The certification on the motion made by the division stated that a copy was mailed to all attorneys involved in the entrustment case. No copy of the motion appears to have been sent to counsel for Lloyd and Colleen Williams. The cover letter which accompanied the motion asked that social services be advised if the court desired a hearing. No hearing was held on the motion, but an order was entered by the court on February 17, 1984, dismissing the appeal and remanding the case to the juvenile court.
During one of the initial hearings in circuit court, the parties argued the validity of the remand order. The unknown father's guardian ad litem contended that the order should not have been entered without a hearing, and stated that he had information that the father was not, in fact, unknown. The division of social services contended then, and contends now, that the initial order was properly entered and, even if not properly entered, could not be vacated more than twenty-one days after entry. After a hearing before the judge who originally entered the remand order, it was vacated and declared void nunc pro tunc.
We address this contention first, since its determination would end all other inquiry if the division were correct. However, we find no merit in the argument. The division contends that no party requested vacation of the remand order within twenty-one days of entry, and therefore, the court could not vacate the order after that time according to Rule 1:1 6 and Godfrey v. Williams, 217 Va. 845, 846, 234 S.E.2d 301, 302 (1977).
The Godfrey case involved a judgment awarded on September 8, 1975, to the plaintiff against one defendant, but a finding in favor of other defendants. Subsequently, on September 29, 1975, the court entered, ex parte, an order purporting to extend the time period established by Rule 1:1 during which the court could retain jurisdiction of the final judgment for purposes of vacation and/or modification. On October 28, 1975, the trial court vacated the September 8 judgment and ordered a trial de novo. After the second trial on December 12, 1975, the court found in favor of all defendants. The plaintiff appealed and the Supreme Court reversed the December 12 judgment order and reinstated the September 8 judgment order. It held that the September 29 order did not modify or vacate the judgment of September 8, and that neither the September 29 order nor the October 28 order vacating the judgment were valid since the court lacked authority to extend the twenty-one day period prescribed by Rule 1:1. Id.
The question here, however, is whether the order remanding and dismissing the termination petition was void ab initio. If it was, Rule 1:1 could not bar subsequent vacation of the order. Appellees contend that Rule 1:13 mandates that:
[D]rafts of orders and decrees shall be endorsed by counsel of record, or reasonable notice of the time and place presenting such...
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