Walker v. Department of Public Welfare of Page County, 791630
| Decision Date | 30 April 1982 |
| Docket Number | No. 791630,791630 |
| Citation | 290 S.E.2d 887,223 Va. 557 |
| Parties | Jack Hilton WALKER, Sr., and Rita B. Walker v. DEPARTMENT OF PUBLIC WELFARE OF PAGE COUNTY, Virginia. Record |
| Court | Virginia Supreme Court |
Samuel S. Price, Luray (Hackley, Shanks & Price, Luray, on brief), for appellants.
John R. Bushey, Jr., Luray, for appellee.
Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
This case presents a question with respect to the procedure applicable to an appeal from orders of a juvenile and domestic relations district court terminating residual parental rights pursuant to Code § 16.1-283.
The appellants, Jack Hilton Walker, Sr., and Rita B. Walker (parents), were married in December 1975 when both were nineteen years old. Their first child, Jack, Jr., was born on January 20, 1976. The parents were unemployed, poorly educated, and without a fixed residence. Shortly after the child's birth, the family moved in with a relative in Page County and had repeated contacts with appellee, Page County Department of Public Welfare (Department). The Department took emergency custody of Jack, Jr., on May 9, 1977, when both parents were incarcerated in the Page County Jail on petit larceny charges. The Juvenile and Domestic Relations District Court of Page County vested immediate and temporary custody in the Department by summary prehearing order and appointed a guardian ad litem to represent the interests of the child. The Department placed Jack, Jr., in a foster home and the juvenile court confirmed this custody by order entered on July 20, 1977.
On March 10, 1978, the Department petitioned the juvenile court for the termination of the parents' residual parental rights pursuant to Code § 16.1-283. The Department filed a report of prehearing investigation stating that the foster parents were willing and able to adopt Jack, Jr., if the parental rights were terminated. On July 5, 1978, the juvenile court entered an interlocutory order terminating the residual parental rights of the parents subject to a six-month period in which a "psychological" was to be done on the parents and filed with the court. The interlocutory order also provided that a full hearing would be held as to the custody of the child before the entry of a final order. The juvenile court entered its final order on January 17, 1979, terminating the residual parental rights and ordering that the child be placed for adoption. The order did not specifically allocate the child's custody to anyone, but directed that he be "permanently separated from his natural parents and ordered placed for adoption."
The parents appealed to the Circuit Court of Page County where trial was held beginning April 13, 1979. At the conclusion of the trial, at 9:45 p. m. on Saturday, April 14, 1979, the court stated that it was unable on the evidence to make a finding that the natural parents were unfit. However, citing Shank v. Dept. Social Services, 217 Va. 506, 230 S.E.2d 454 (1976), Watson v. Shepard, 217 Va. 538, 229 S.E.2d 897 (1976), and McEntire v. Redfearn, 217 Va. 313, 227 S.E.2d 741 (1976), the court ruled that the interlocutory order of the juvenile court, not having been appealed within ten days of its entry, was final and that the parents had failed to carry the burden of showing that circumstances had so changed since its entry that it would be in the child's best interests to transfer custody to them. The court entered its decree purporting to merge the juvenile court's interlocutory order into a final order terminating the residual parental rights of the natural parents.
The parents contend that the circuit court erred in placing the burden of proof upon them rather than upon the Department, as should have occurred in a trial de novo. We agree. The crux of the error lies in the Department's confusion between appeals of custody determinations and appeals of orders terminating residual parental rights.
The Department contends that this case is controlled by Watson v. Shepard, supra, which held that when a parent, having been divested of the custody of a child by order of a court of competent jurisdiction, seeks to regain it on appeal, the burden is upon the parent to show that circumstances have so changed since the entry of the former custody order that it would be in the child's best interests to change custody. See also McEntire v. Redfearn, supra. Both Watson and McEntire were custody cases on appeal within the statutory framework of Code § 16.1-298. That section, enacted to provide continuity and stability in cases of children who are the subjects of litigation, provides in part that a petition for, or the pendency of, an appeal shall not suspend the juvenile court's order or affect the custody of a child unless so ordered by a judge of the juvenile court, a circuit court or this court. The circuit court, applying the Watson rule, took the position that the interlocutory order of the juvenile court was an adjudication of unfitness of the parents and caused the burden to shift to them in the circuit court to show that the best interests of the child required that the juvenile court's interlocutory order be modified.
Unlike Watson and McEntire, the case at bar deals with the appeal of an order terminating residual parental rights. The question of custody was not before the court. 1 Code § 16.1-283, enacted in 1977, provides standards and procedural safeguards for the termination of residual parental rights which were not present in the former statutory scheme under which Shank v. Dept. Social Services, supra, was decided. The distinction between termination of parental custodial rights and residual parental rights is crucial here, as it was in Weaver v. Roanoke Dept. of Human Res., 220 Va. 921, 265 S.E.2d 692 (1980).
In Weaver, decided more than a year after the circuit court's determination in this case, this court for the first time considered the termination of residual parental rights pursuant to Code § 16.1-283. Then Chief Justice I'Anson wrote:
While it may be occasionally necessary to sever the legal relationship between parent and child, those circumstances are rare. Statutes terminating the legal relationship between parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship.
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