Unknown Father of Baby Girl Janet v. Division of Social Services of City of Lynchburg

• Decision Date: 22 September 1992
• Docket Number: No. 1572-91-3,1572-91-3
• Citation: 15 Va.App. 110,422 S.E.2d 407
• Parties: , 61 USLW 2219 UNKNOWN FATHER OF BABY GIRL JANET v. DIVISION OF SOCIAL SERVICES OF THE CITY OF LYNCHBURG, et al. Record
• Court: Virginia Court of Appeals

Page 407

422 S.E.2d 407

15 Va.App. 110, 61 USLW 2219

UNKNOWN FATHER OF BABY GIRL JANET v. DIVISION OF SOCIAL SERVICES OF THE CITY OF LYNCHBURG, et al.

Record No. 1572-91-3.

Court of Appeals of Virginia.

Sept. 22, 1992.

Walter C. Erwin (City Attorney's Office, on brief), for appellee Div. of Social Services of City of Lynchburg.

No brief or argument for appellee Baby Girl Janet.

Present: KOONTZ, C.J., and COLEMAN and ELDER, JJ.

KOONTZ, Chief Judge.

The guardian ad litem for Unknown Father (unknown father) appeals an order of the Family Court for the City of Lynchburg (family court) terminating his parental rights concerning an infant female child (hereinafter referred to as Baby Girl Janet). Through his guardian ad litem, unknown father contends that the notice of the termination proceedings by order of publication was insufficient to confer jurisdiction in the family court to terminate his parental rights. He further contends that the family court erred in finding, pursuant to Code § 16.1-283(C)(1), that he had failed, without good cause, to communicate with Baby Girl Janet for twelve months following her placement in foster care. The essence of unknown father's contentions is that without knowledge of the child's birth or notice of the child's placement in foster care, "good cause" existed for his failure to communicate with the child. For the reasons that follow, we affirm the family court's termination of unknown father's parental rights.

I. Procedural and Factual Background

The pertinent facts are not in dispute. Baby Girl Janet was born on November 20, 1989 in Lynchburg. Two days later, the child's unwed mother executed an entrustment agreement for permanent surrender of the child to the Division of Social Services of the City of Lynchburg (social services) for the purpose of adoption. Social services accepted custody of the child and on January 18, 1990, filed petitions in the family court requesting approval of the entrustment agreement, termination of the parental rights of both parents, and approval of a foster care plan that provided as its goal the adoption of the child. A hearing on these petitions was scheduled for March 16, 1990. Notice of this hearing was given to the unknown father by order of publication. This notice was published in a local newspaper and contained adequate and appropriate information concerning the birth of the child and the nature of the proceedings, but omitted the name of the child's mother.

Unknown father did not appear at the hearing on March 16, 1990. The child's mother signed an affidavit stating that the identity of Baby Girl Janet's father was unknown and not reasonably ascertainable. Unknown father's court-appointed guardian ad litem objected to the termination of unknown father's parental rights on the ground that unknown father had not been given sufficient notice of the proceedings. The family court made no decisions regarding the foster care plan or the termination petitions as they related to unknown father and continued those issues for an additional hearing until June 6, 1990. By order entered on April 17, 1990, the family court approved the entrustment agreement and the foster care service plan as related to the mother, terminated the mother's parental rights and placed Baby Girl Janet in the custody of social services for adoption.

Thereafter, at the June 6, 1990 hearing, Baby Girl Janet's mother testified that she did not know the identity of the child's father. She testified that she "had numerous sexual partners around the probable time of conception, that she was presently unable to identify the same, and that she did not notify any of said partners of her pregnancy or of the child's birth." Other evidence established that during her pregnancy the child's mother continued to reside in Lynchburg and to work at her regular job. Unknown father did not appear at this hearing. At its conclusion, the family court permitted social services to amend its termination petition and to delete the request for the termination of unknown father's parental rights, and dismissed that portion of the petition "without prejudice."

On June 22, 1990, the family court rendered a written opinion that the identity of the father of Baby Girl Janet was unknown and not reasonably ascertainable. Thereafter, on July 31, 1990, the family court approved the foster care plan that contained as its goal the adoption of Baby Girl Janet in regard to the unknown father.

Social services made no further attempt to identify the child's father or to notify him of the child's circumstances until approximately ten months later. On April 19, 1991, social services filed petitions in the family court seeking termination of unknown father's parental rights pursuant to Code § 16.1-283 and approval of a foster care service plan that contained as its goal the adoption of the child. A hearing on these petitions was scheduled for June 19, 1991.

In anticipation of this hearing, on May 9, 1991, social services caused to be published an order of publication in a Lynchburg newspaper giving notice of the termination proceedings to the "Unknown Father of Baby Girl Janet." The order of publication was published once a week for four consecutive weeks. The publication provided, in pertinent part:

Commonwealth of Virginia Lynchburg Family Court Commonwealth of Virginia, in re Baby Girl Janet Lynchburg Division of Social Services v. Unknown Father of Baby Girl Janet, the daughter of [natural mother], the child was born on November 20, 1989, in Lynchburg, Va. at Virginia Baptist Hospital.

The publication further described the nature of the proceedings and ordered the unknown father to appear before the family court "to protect his interests on or before 6-19-91 at 2:00 P.M."

Unknown father did not appear at the June 19, 1991 hearing. However, his guardian ad litem again appeared and objected to the termination of his parental rights. By final order entered on August 21, 1991, the family court found that unknown father of Baby Girl Janet, without good cause, had failed to maintain contact with and to provide or substantially plan for the future of the child for a period of twelve months after the child's placement in foster care. The family court further found that unknown father had not come forward since the child's birth to provide nurturing, support or care for the child. Pursuant to Code § 16.1-283(C)(1), the family court terminated the parental rights of unknown father and approved the foster care service plan containing as its goal the adoption of Baby Girl Janet.

Baby Girl Janet was represented in these proceedings by a guardian ad litem. That guardian made no objection to the termination of the parental rights of the child's unknown father.

Baby Girl Janet is currently in an adoptive placement. The identity of her natural father remains unknown.

II. Discussion

The record here presents a factual case where the unwed mother of the child to be adopted is unable, rather than unwilling, to identify the child's father. Cf. Augusta County Dep't of Social Servs. v. Unnamed Mother, 3 Va.App. 40, 348 S.E.2d 26 (1986) (notice of termination proceedings by order of publication required where unwed mother knows but refuses to reveal identity of father). The mother's testimony and her affidavit establish that the regrettable circumstances surrounding the conception of this child resulted not merely in the mother being unable to identify the father from among "numerous sexual partners" but, also, in her inability to identify that group of sexual partners from which at least a potential father might be identified. Thus, the unknown father here is a complete stranger to the child as well as to the mother. ¹ Accordingly, because the identity of the father is unknown, the issues raised in this appeal are controlled by whether the identity of the unknown father is "reasonably ascertainable," and if not reasonably ascertainable, what notice, if any, he is entitled to receive to protect his interests in these parental termination proceedings. See Norfolk Div. of Social Servs. v. Unknown Father, 2 Va.App. 420, 345 S.E.2d 533 (1986) (recognizing right and duty of guardian ad litem to protect interests of unknown father by appeal). In this context, we need not decide the extent to which an unknown father has parental rights, if any, under the facts presented by this appeal. Rather, we will assume that the unknown father had parental rights, though limited, that he failed to exercise prior to the termination of those rights by the family court.

Code § 16.1-279(B), in effect at the time of these proceedings, ² is part of a comprehensive statutory scheme for the termination of parental rights and the adoption of children consistent with due process for parents and children. This Code section authorizes the appropriate court, including the family court, to terminate the parental rights of a parent when, as here, a public agency such as social services seeks to gain approval of a permanent entrustment agreement. In pertinent part, where only one parent has executed the entrustment agreement, this Code section provides that:

The parental rights of the remaining parent may be terminated even though that parent has not entered into an entrustment agreement if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that (i) the identity of the parent is not reasonably ascertainable or (ii) the identity and whereabouts of the parent are known or reasonably ascertainable, and the parent is personally served with notice of the termination proceeding pursuant to Code § 8.01-296 or § 8.01-320, or (iii) the whereabouts of the parent are not reasonably ascertainable and the parent is given notice of termination proceedings by certified or registered mail to the last known address and such parent fails to object to the proceedings within twenty-one days of the mailing...