Robinette v. Keene

• Decision Date: 05 August 1986
• Docket Number: No. 0830-85,0830-85
• Citation: 2 Va.App. 578,347 S.E.2d 156
• Court: Virginia Court of Appeals
• Parties: Jessie Belle ROBINETTE v. Wayne KEENE and Susan Keene. Record

Page 156

347 S.E.2d 156

2 Va.App. 578

Jessie Belle ROBINETTE v. Wayne KEENE and Susan Keene.

Record No. 0830-85.

Court of Appeals of Virginia.

Aug. 5, 1986.

C. Eugene Compton, Grundy, for appellant.

Linda Tiller, St. Paul, for appellees.

Present: BENTON, COLEMAN and MOON, JJ.

BENTON, Judge.

Jessie Belle Robinette, the natural mother of two girls, S______, age 5, and J______, age 2, appeals from a single order terminating her parental rights and granting the petitions for adoption of both children filed by Wayne and Susan Keene. The issue to be decided is whether the record establishes by clear, cogent, and convincing evidence that Robinette abandoned her children or is an unfit parent. We conclude that it does not and reverse the decision of the trial court.

Robinette learned on November 15, 1984, that her husband, Danny Robinette, had sexually molested S______. The next day, Robinette and both children were taken by Ellen Anders, her husband's elderly aunt, to the Russell County Department of Social Services (the Department), where Robinette reported that her husband had sexually abused S______. The Department arranged for S______ to be examined at a hospital and referred Robinette to a spouse abuse center because she was afraid to return home. While S______ was being examined Robinette went to Anders, who was keeping J______ in the car, and asked if she would take J______ home with her. Robinette testified that when they had left Anders' house earlier that day it was warm and J______ was not wearing a coat. Robinette explained that she asked Anders to take J______ home with her,

[b]ecause it was cold, and it was getting dark. Ellen [Anders] wanted to go on. I didn't know at the time where we were going or how long we had to be there. So I asked Ellen would she mind taking J______ on with her, and she said she did not mind.

Robinette went to the spouse abuse center with S______ that night. Her husband was charged with sexually abusing S______. ¹

On November 22, Robinette and S______ left the center and moved in with her sister on her father's farm. Robinette intended to occupy a trailer located on the farm after the tenants were evicted. Robinette testified that she did not contact Anders and did not regain custody of J______ because she had no transportation, there was no telephone on the farm, and she was afraid that her husband, who had threatened to kill her, would learn where she was residing.

At an undisclosed date subsequent to his arrest for sexually abusing his child and prior to January 10, 1985, Danny Robinette sought to give his daughters to another family. He approached Kenneth Miller, a deputy sheriff, who testified:

It started through an arrest that was made. Then later on Danny Robinette came to my residence and asked if I knew of a place or some people that would like to have two children. I said I would like to have them myself, as far as that goes. Of course, I have four of my own. He said he wanted sombody to have them that doesn't have any children.

Miller then approached the Keenes, who attend the deputy's church, about adopting the children:

Danny Robinette came to me, as I mentioned earlier, and he said he wanted those children to have a home. I didn't know whether they were interested in children. I knew they did not have any children.

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* * *

I approached them about it. They were definitely interested. I didn't make any arrangements.

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It just came about in a line of conversation. It wasn't really directed to them as an adoption or anything. It was mentioned about the children and the status of them and that if there was any interest, there would be some action taken toward them, the plans of adoption for the children.

Robinette's husband executed an entrustment agreement for J______ on January 10, 1985. On the same date the Department removed J______ from Ellen Anders and placed the child in the foster care of persons unidentified in the record. J______ was placed in the Keene's foster care on January 11. Catherine Sandefur, a social service worker, testified that the Department had received calls from persons, unidentified on this record, who complained that Anders was in ill health and could not care for the child. Although Anders was caring for a four-year old granddaughter on a permanent basis when J______ was removed from the home, Sandefur did not seek to remove the granddaughter from Anders' custody because she had "not received any concerns regarding the care of that child." Sandefur's concern in removing J______ from Anders was not primarily related to improper care. She testified that:

"[h]e [Danny Robinette] was the father and there were no restrictions on him at that time. He could go to the home and remove J______ at any time. With the previous allegations [concerning] S______ that was the major concern of the agency."

There was no direct testimony that Anders did not properly care for the younger child.

At 4:00 p.m. on January 10, after Robinette's husband had signed the entrustment agreement, Sandefur went to the farm where Robinette resided. Sandefur there learned that Robinette had gone to a store with a female friend. S______ was being cared for at that time by Robinette's uncle and another adult male. When Robinette did not return after Sandefur had made several visits to the farm that afternoon, Sandefur instructed Robinette's father to bring either Robinette or S______ to the Department on January 11, 1985. Robinette testified that the car in which she was a passenger became disabled on a rural roadway on January 10 and she was unable to get to her father's farm until after 9 a.m. the following day. There was no telephone on the farm.

Robinette's father delivered S______ to Sandefur at 9:00 a.m. on January 11. The juvenile and domestic relations district court that day entered an order of removal with respect to S______. The girl was placed in the Keenes' foster care on the same date. The proceedings with respect to S______ apparently were ex parte and pursuant to Code § 16.1-251. ² The juvenile and domestic relations district court held a hearing on January 15, 1985, and apparently continued in effect the previous disposition of S______ and J______, that is, transfer of custody to the Department and their placement in the foster care of the Keenes; however, this record does not reflect the nature of that hearing or who was present. After the January 15 hearing, Robinette met with Sandefur and signed a temporary entrustment agreement for J______.

Sherry Campbell, a foster-care worker with the Department, became involved in the case after Robinette's daughters had been placed in the Keenes' home. On March 11, 1985, Campbell prepared the foster-care plan required by Code § 16.1-281(A). A copy of the plan prepared for J______, reproduced in the Keenes' brief, sets out the goal of "Return Home," and gives July, 1985 as the target date for achievement of this goal. The plan also indicates that the foster-care placement of the girls would be needed until "Robinette can provide a stable environment, provide adequate housing, improve parenting skills, and restrict people who demonstrate inappropriate behavior from the home."

Campbell testified that Robinette visited with S______ and J______ on January 23, March 5 and April 23, 1985 in the Department's offices. Between the first two dates Robinette did not request additional visits with the children. Between the second and third dates Robinette requested additional visits, but Campbell had "a tight schedule" and could not accommodate further visits.

On January 25, 1985, Danny Robinette executed in the juvenile and domestic relations district court his consent for the Keenes to adopt S______ and J______. The Keenes filed their petitions for adoption on February 4, 1985, alleging that Robinette abandoned the children and was an unfit mother. At the time the adoption petitions were filed, there was pending in the circuit court a divorce suit between Robinette and her husband in which Robinette sought custody of the children and an award of support for the children. ³

In the adoption action the circuit court ordered the Department to undertake an investigation report pursuant to Code § 63.1-223. The Department's "home study" of Robinette reported that Robinette had obtained adequate housing and appeared "to be making sincere efforts in working with Social Services in order to have her children returned home." The report recommended that the girls remain in the Keenes' foster care "until Mrs. Robinette can establish a safe and secure home environment for her children, and also work with Social Services in preparing a positive environment for her children."

The trial judge heard the matter on April 1, 1985, but scheduled another hearing because of witness-related difficulties and because Robinette was not represented by counsel at the hearing. The trial judge again heard the matter on May 7, 1985, found that Robinette had abandoned both girls, found that she was an unfit mother, and terminated her parental rights. The trial judge also found that Robinette had withheld her consent to adoption against the children's best interests and entered an interlocutory order of adoption. A panel of this court held that the interlocutory order was final as to Robinette and appealable. See Shortridge v. Deel, 224 Va. 589, 591-92, 299 S.E.2d 500, 502 (1983).

There is a strong presumption in controversies between a parent and third parties that the best interests of children will be served by placing them in the custody of the natural parent. Patrick v. Byerley, 228 Va. 691, 694, 325 S.E.2d 99, 101 (1985); Judd v. Van Horn, 195 Va. 988, 994, 81 S.E.2d 432, 435-36 (1954). In order to deprive a parent of the custody of her children proof of unfitness of the parent must be shown by clear, cogent, and convincing evidence. James v. James, 230 Va. 51, 54, 334 S.E.2d 551, 553 (1985); Szemler...