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Nelson v. Middlesex Department of Social Services

Court of Appeals of Virginia

November 20, 2018



          Nathan A. Chapman (Chapman Law Firm, PC, on briefs), for appellants.

          Carla B. Hook; Dawne Alexander (Kathleen M. McDaniel, Guardian ad litem for the minor children; The Law Office of Carla B. Hook; Law Office of Kathleen M. McDaniel, PLLC, on brief), for appellees.

          Present: Judges Chafin, Russell and Senior Judge Clements Argued at Richmond, Virginia



         Appellants Cathleen and William Nelson (grandparents) are the biological, paternal grandparents of two minor children, brothers who were adopted by appellees John and Jane Doe (adoptive parents). The grandparents appeal an order of the circuit court vacating a prior order granting their counsel permission to view certain files and records and dismissing their request to reopen and rehear prior proceedings.[1] For the reasons that follow, we affirm the circuit court's vacation of its October 16, 2017 order and dismissal of the remainder of the matter.


         As an appellate court, we review the record "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). In addition, "[u]nder basic principles of appellate review, we may not go beyond the record developed in the trial court." Boyd v. Cty. 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).

         Because of allegations of abuse, the Middlesex Department of Social Services (Department) sought to terminate the parental rights of the biological father of the children. The termination proceedings were initiated in the Middlesex County Juvenile and Domestic Relations District Court (JDR court) and eventually resolved in the Middlesex County Circuit Court. While the termination proceedings related to father's rights were pending, grandfather filed independent petitions for custody of the children; however, grandfather withdrew the petitions on November 30, 2016 before the circuit court had entered a final order in the termination proceedings. Ultimately, father's parental rights were terminated by the circuit court by order entered on December 8, 2016.[2]Father did not appeal the circuit court's termination decision. Accordingly, the termination order became a final judgment on January 10, 2017.[3]

         Pursuant to the termination orders, the children were placed in the custody of the Department, which was granted "the authority to place the child[ren] for adoption and consent thereto . . . ." The Department placed the children with the adoptive parents on April 20, 2016.

         On April 3, 2017, both grandparents filed petitions in the JDR court for custody and visitation of the children, alleging simply that the brothers were children whose custody and visitation "require[d] determination" pursuant to Code § 16.1-241(A). The blanks asking the "[p]etitioner's relationship to child" were not completed. A guardian ad litem was appointed on April 25, 2017, for the brothers for the JDR court proceedings, and a hearing was set for July 28, 2017.

         On April 17, 2017, after almost a year of having physical custody of the children, the adoptive parents petitioned the circuit court to allow them to adopt the children. Attached to the adoption petition were the orders of termination and forms showing that the Department had consented to the adoption in March of 2017. The petition also included a report of investigation prepared by the Department. The Department was not a party to the adoption proceeding and did not participate other than the above-referenced documents being attached to the petition.

         Upon review of the petition, the circuit court noted that all of the statutory requirements had been satisfied and, consistent with Code § 63.2-1210, elected to waive any order of reference and to dispense with a probationary period and interlocutory order. Specifically finding "that the best interests of [the] children will be promoted by the [] adoptions[, ]" the circuit court granted the adoptive parents' petition and a final order of adoption was entered on April 19, 2017. No motions to reconsider were filed within twenty-one days of the entry of the order, and no appeal challenging the adoption was noted within thirty days of the entry of the order.[4]

         On July 28, 2017, the return date for the grandparents' custody and visitation petitions in the JDR court, the grandparents appeared and withdrew the petitions. As a result, the JDR court dismissed the petitions.

         Several months later, on October 11, 2017, the grandparents' attorney submitted a letter to the circuit court seeking permission to review the adoption file and "any record the [JDR court] or Department [] may have related to [the children]."[5] Claiming that the grandparents were "parties in interest to the adoption[, ]" the letter alleged that reviewing the information was necessary "to examine the appropriateness of the adoption process." Grandparents further requested a stay of entry of the final order of adoption or the reopening of the matter for "time to confirm that things were handled appropriately by the [c]ourt and/or the Department[.]" The circuit court granted the request to view the files on October 16, 2017, by order entitled "Order Granting Permission to View"; the order did not purport to stay, reopen, or address the April 19, 2017 adoption order.[6]

         On October 16, 2017, 174 days after the final order of adoption was entered, grandparents filed a motion for a new trial or to rehear the adoption matter, asserting that the case "involve[d] the fundamental rights of [] grandparents to assist in the custody of children to whom they are biologically related" and that "[i]t is not in the best interests of the [c]hildren that [they] be adopted by a non-relative when the paternal grandparents are interested, ready and available." In support of their motion, the grandparents alleged that they "did not consent to the adoption" and were not aware or given notice of the adoption proceedings and that their interest and pending JDR court petitions should have been considered by the circuit court. The motion further stated that "there may have been fraud, or misleading and disingenuous representations to this [c]ourt[.]" (Emphasis added). Grandparents asked the circuit court to grant their motion "to rehear, reopen the matter, [and to] vacate or otherwise suspend" the adoption order. The motion does not allege specifically that the adoption order was void, nor does the motion mention the termination proceedings.

         In response, on October 18, 2017, the Department, citing confidentiality statutes and the lack of notice to the affected parties, filed a motion to vacate the "Order Granting Permission to View." By order entered the same day, the circuit court suspended execution of the "Order Granting Permission to View" pending a hearing to determine the circuit court's authority to grant the access. No order suspending or vacating the adoption order was entered at that time.

         On October 30, 2017, the adoptive parents filed a motion to deny the grandparents' motion to rehear, to prohibit contact between grandparents and the children, and to enjoin any dissemination of any information learned from any review of the adoption file. On November 14, 2017, the guardian ad litem who had been appointed in prior proceedings filed a motion to dismiss the grandparents' motion for rehearing or new trial. The guardian argued that the grandparents lacked standing, that the circuit court no longer had jurisdiction, and that disrupting the adoption would harm the children.

         The circuit court held a hearing on November 15, 2017. The grandparents, adoptive parents, Department, and guardian all participated without objection. No testimony was elicited. The circuit court first determined what issues were before it. The grandparents averred, "We are here specifically today to get access to the court's file . . . ." Nonetheless, the circuit court commented,

I think . . . we first need to decide what are the grounds that someone could possibly challenge in the six-month period as opposed to within 21 days and do those grounds apply here, which that would then dictate whether there would be any basis to move forward to anything on the merits. So I think we need to determine are you even able to win to have me even reopen it under the six-month rule. In other words, what grounds are good enough to reopen something; and if . . . any of those grounds [are] present.

         Grandparents acknowledged that the issues were intertwined, but contended, "the reason we need to see the court's file is so we know whether or not we can challenge successfully the final order of adoption."

         Appellees argued that the grandparents had no standing because the final order of adoption severed any ties between them and the children. The circuit court found this reasoning circular and reiterated, "I'm not saying they can challenge it. What I'm saying is what are the grounds to challenge it at this stage and can they be met. So that's what I'd like to address." The circuit court then queried what constituted valid reasons to challenge the adoption, whether the grandparents were entitled to notice, and whether their consent was required.

         The grandparents then maintained, "For the adoption to be proper, the parents' rights have to be terminated . . . . However, for the termination to be proper, the grandparents have had to been considered [as potential custodians] . . . under [Code §] 16.1-283." They then explained they also were seeking permission to view the files and records in order to review the termination proceedings. Counsel stated that he had had access to the adoption file "because after the [ex parte] order [granting permission] was entered, I drove up here and looked at the file."

         Grandparents then likened adoption cases to custody proceedings under Title 16.1 and argued that the circuit court, in considering the adoption file, similar to the review of custody petitions, "either knew or should have been informed" of their pending JDR custody petitions. When the circuit court asked grandparents to "point me to the statute that requires the adoption petitioner to include all other litigation pending on the case[, ]" grandparents responded, "[we] don't know that" and continued that they "can't point you to a code section yet, that they should have had notice that an adoption was pending . . .[; b]ut . . . either the juvenile court should have been aware that an adoption was pending or the circuit court should have been aware that custody and visitations were pending."

         The grandparents summarized their argument as follows:

now the [c]ourt may understand why we need to see the file, but they're saying these people didn't have notice because father's rights were terminate[d]. Well, if they were never considered and father's rights were terminated, you have parties interested in custody who were never considered and ...

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