Opinion
Record No. 2050-90-4
September 28, 1993
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY CARLTON PENN, JUDGE DESIGNATE.
Robert J. Harris (Spencer D. Ault; Ault, McGarrahan and Stein, on briefs), for appellant.
Joan E. Jennings (O. Leland Mahan; Hall, Monahan, Engle, Mahan Mitchell, on briefs), for appellees.
Present: Judges Barrow, Coleman and Senior Judge Duff.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Phyllis McLeod Etzold (mother) appeals a circuit court order terminating her residual parental rights and granting custody of her child to the Loudoun County Department of Social Services (DSS). The mother contends that (1) the circuit court lacked jurisdiction to consider DSS' petition to terminate her residual parental rights; (2) the trial judge erred in refusing to bifurcate the proceeding to terminate the mother's residual parental rights from the grandparents' petition for custody of the child; (3) the trial judge erred in denying the mother's request for the grandparents' medical records; and (4) the trial judge erred in finding that the mother was not a credible witness. For the reasons that follow, we affirm the trial judge's decision.
In 1988, the Loudoun County Department of Social Services (DSS) filed a petition in the juvenile and domestic relations district court seeking an emergency removal of Kaitlyn Dixie McLeod (child) from her mother. The district court granted the petition and awarded custody of the child to DSS. On March 15, 1990, the mother filed a petition in the family court requesting the court to return legal and physical custody of the child to her. Following a hearing on May 3 and 4, the family court ordered DSS to return the child to the mother's custody.
The Loudoun County Juvenile and Domestic Relations District Court was designated an experimental family court by the Judicial Council of Virginia, pursuant to Code § 20-96.1, effective January 1, 1990.
On May 21, 1990, the child's guardian ad litem and DSS filed an appeal from the family court custody order to the Circuit Court of Loudoun County. The grandparents joined in the appeal as intervenors and also filed a petition seeking custody of the child. DSS filed an additional petition to terminate the mother's residual parental rights. DSS' petition was accompanied by a revised foster care plan recommending termination of the mother's residual parental rights as in the best interest of the child and recommending adoption as a goal. Following a hearing on December 20, 1990, the circuit court entered an order denying the mother's motion for custody and granting DSS' petition for termination of residual parental rights. The trial judge denied the grandparents' petition for custody and granted DSS continuing custody of the child. The mother appeals from this decision.
I. JURISDICTION
The circuit court had original jurisdiction to hear DSS' petition to terminate the mother's residual parental rights because the petition was filed in the court in which was pending the de novo appeal of the family court order granting custody of the child to the mother. In general, the juvenile and domestic relations district court has exclusive original jurisdiction over proceedings involving the custody, visitation, support, control or disposition of a child. Code § 16.1-241(A);see also Code §§ 16.1-281 and 16.1-283 (procedures for filing a petition seeking the termination of parental rights).
Code § 16.1-241 also provides, however, that in cases involving the termination of residual parental rights, the juvenile and domestic relations district court shall have concurrent jurisdiction with courts having equity jurisdiction as provided in Code § 16.1-244. Code § 16.1-241(A)(5). Under Code § 16.1-244, circuit courts have concurrent jurisdiction with the juvenile courts to determine "the custody, guardianship, visitation or support of children" when such matters are "incidental to the determination of causes pending in such courts." Code § 16.1-244(A). The question regarding the mother's residual parental rights was "incidental to" the custody issue on appeal to the circuit court in that both issues involved the disposition and placement of the child and required presentation of similar evidence. Accordingly, the circuit court had original jurisdiction to hear the petition to terminate the mother's residual parental rights.
II. BIFURCATION
The mother was not denied her right to due process when the trial judge refused to bifurcate the proceeding for termination of parental rights from the grandparents' petition for custody. Due process embodies a flexible concept of fundamental fairness in the administration of justice. Klimko v. Virginia Employment Commission, 216 Va. 750, 754, 222 S.E.2d 559, 563, cert.denied, 429 U.S. 849 (1976). Due process rules do not protect a person absolutely from the deprivation of life, liberty or property, but only from the mistaken or unjustified deprivation of those rights. Jackson v. W., 14 Va. App. 391, 406, 419 S.E.2d 385, 393 (1992) (citing Carey v. Piphus, 435 U.S. 247, 259 (1978)).
The procedural protections required in a given instance vary according to the "'practicalities and particularities of the [individual] case'". Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916 (1991) (quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950)); see also Hannah v. Larche, 363 U.S. 420 (1960); Klimko, 216 Va. at 760, 222 S.E.2d at 568; Jackson, 14 Va. App. at 411, 419 S.E.2d at 397. "In order to determine what process is due, three considerations must be balanced: (1) the private interest at stake; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or different procedural safeguards; and (3) the Commonwealth's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute [procedures] would entail." Jackson, 14 Va. App. at 411-12, 419 S.E.2d at 419;Dixon v. Love, 431 U.S. 105, 112-13 (1977).
Under this balancing test, the competing interests of the government and the mother are to be weighed and consideration given to the value and cost of requiring the additional procedure of bifurcating the proceedings. First, the interest at stake is the mother's constitutional right to maintain a relationship with her biological child, which is a significant right that will not be infringed upon without the utmost care and caution. Second, the risk of an erroneous decision to terminate the mother's parental rights in a nonbifurcated proceeding is nonexistent. In fact, the issues of custody and termination of parental rights are so interrelated that to bifurcate the issues may well obfuscate both proceedings. The mother received reasonable notice of the pending claims against her, as well as a reasonable opportunity to present her defense and be heard on the issues of parental rights and her claim that she is entitled to custody. The petitions on these issues were filed and served in May, 1990, and trial was held in December, 1990. The mother was represented by counsel, who presented numerous witnesses and experts to testify in the mother's behalf. Although a decision to terminate parental rights requires a higher standard of proof than a decision to change custody, both issues require the presentation of similar, if not the same, type of evidence. Thus, we reject the mother's contention that trying both issues in the same proceeding caused confusion and forced the mother to assume inconsistent positions in defending each claim.
Bifurcating the proceeding for the termination of parental rights from the grandparents' petition for custody would have been burdensome in terms of administrative efficiency and financial cost to all parties involved. The "practicalities and particularities" of the present case required that the issues of parental rights and custody be heard in the same proceeding. Requiring the issues to be heard separately would have created a duplication of efforts and evidence, as well as an increased burden on the court and the parties. Any benefit that the mother may have received from bifurcating the proceedings is speculative and minimal at best.
The trial judge did not abuse his discretion in denying the request to bifurcate and the failure to bifurcate did not deny the mother due process.
III. MEDICAL RECORDS
The mother's challenge of the trial judge's denial of her request for the grandparents' medical records is procedurally barred. The record does not contain a transcript of the hearing on the mother's motion requesting the medical records. Without the transcript, we are unable to determine what arguments were presented on the motion and whether the medical records were relevant to the issues before the court. When a transcript is indispensable to the determination of an issue, the absence thereof in the record is a jurisdictional defect and requires dismissal of the claim. Goodpasture v. Goodpasture, 7 Va. App. 55, 57, 371 S.E.2d 845, 846 (1988); Barrett v. Barrett, 1 Va. App. 378, 380, 339 S.E.2d 208, 210 (1986).
IV. CREDIBILITY
The mother's claim that the trial judge used an impermissible basis for finding the mother to be an incredible witness is procedurally barred. The record does not contain a transcript of the trial held on December 20, 1990. Without the transcript, we are unable to review the evidence presented at trial and to evaluate the trial judge's finding in light of that evidence.See Goodpasture, 7 Va. App. at 57, 371 S.E.2d at 846.
Although the trial judge's opinion is contained in the record, the opinion does not support the mother's claim that he made a finding of credibility on an impermissible basis. In discussing the mother's lack of credibility, the trial judge commented on the mother's failure to raise a certain issue in the family court that she raised in the circuit court. It is clear, however, that the trial judge made his finding of the mother's credibility after discussing the substance of the claims and the evidence presented thereon. Therefore, in absence of the transcript, the record alone is insufficient to support the mother's claim; therefore, we dismiss it. See id.
For these reasons, the trial judge's decision to terminate the residual parental rights of the mother and to grant custody of the child to DSS is affirmed.
Affirmed.