Opinion
Record No. 0355-93-2
March 1, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H.C. TAYLOR, JUDGE.
(William J. Rogers, on brief), for appellant. Appellant submitting on brief.
(Barry N. Norwood, on brief), for appellees. Appellees submitting on brief.
Present: Judges Benton, Koontz and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
James Harlan Key, Jr. (Key) appeals an order of the Circuit Court of Hanover County granting, over his objection, the adoption of his daughter by Robert L. Beckstoffer (Beckstoffer), the present husband of Key's former wife. Key asserts that the provisions of Code § 63.1-223 and due process require that a court-appointed social services investigator conduct an interview with the parent whose rights are subject to divestment in a contested adoption proceeding. For the reasons that follow, we affirm the decision of the circuit court.
The record in this case is under seal by order of the circuit court. To preserve the integrity of that order, and because the parties are familiar with the facts of this case and our holding rests on a clear and unambiguous reading of the applicable law, we restate only those facts necessary to explain our holding.
At the hearing to consider Beckstoffer's petition for adoption, Belinda Shew (Shew), a social worker with the Department of Social Services, testified that she prepared the court-ordered report concerning the adoption petition. She conceded that she did not interview Key before filing her report. Key asked Shew if she was "aware of the legal requirements of [Code] Section 63.1-[223]." Shew replied, "Pretty much so." Key then asked if the report "complied with all this here," and Shew responded, "I think I was supposed to visit the father in jail."
Shew testified that she did not interview Key because she "didn't see any reason to visit him because the petition already stated [his opposition to the adoption]." Shew said that she discussed with her supervisor the need to interview Key, and her supervisor advised her that it was not necessary.
Key requested that the court "not move [the report] into evidence but [the report should] be part of the file as it is required by law." The trial judge replied, "The report very clearly says Mr. Key was not contacted or interviewed in any way. I think . . . the report, if it's not part of the record I hereby make it part of the [record]."
Key does not contest the sufficiency of the evidence to support the trial judge's finding that the best interests of the child would be served by terminating his parental rights and allowing the adoption to proceed. See Frye v. Spotte, 4 Va. App. 530, 532 359 S.E.2d 315, 317 (1987). Rather, he asserts that both the statutory guidelines and due process required a formal interview of the parent contesting the adoption by the court-appointed social services investigator before the trial judge could properly rule on the petition and that the absence of that interview from the report tainted the trial judge's decision in this case. We disagree.
The relevant portions of the statute are as follows:
A. Upon the filing of the petition, the court wherein the petition is filed, or the clerk thereof upon order of the court, shall forward a copy of the petition and all exhibits thereto to the [Department of Social Services]. . . . [T]he applicable agency shall make a thorough investigation of the matter and report thereon in writing . . . to the court within ninety days after the copy of the petition and all exhibits thereto are forwarded. . . .
B. If the report required in subsection A is not made to the court within the periods specified, the court may proceed to hear and determine the merits of the petition and enter such order or orders as the court may deem appropriate.
C. The investigation requested by the court shall include, in addition to other inquiries which the court may require the child-placing agency or local director of social services or superintendent of public welfare to make, inquiries as to (i) whether the petitioner is financially able, . . . morally suitable, in satisfactory physical and mental health and a proper person to care for and to train the child; (ii) what the physical and mental condition of the child is; (iii) why the parents, if living, desire to be relieved of the responsibility for the custody, care and maintenance of the child, and what their attitude is toward the proposed adoption; (iv) whether the parents have abandoned the child or are morally unfit to have custody over him; (v) the circumstances under which the child came to live, and is living, in the same home of the petitioner; (vi) whether the child is a suitable child for adoption by the petitioner. . . . Any report made to the court shall include a recommendation as to the action to be taken by the court on the petition.
D. The report shall include the relevant physical and mental history of the birth parents if known to the person making the report. However, nothing in this subsection shall require that an investigation be made.
Code § 63.1-223 (emphasis added).
We are required to adopt the plain meaning of a statute rather than a curious, narrow or strained construction. Crews v. Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d 1, 3,appeal denied, 360 S.E.2d 715 (1987). In this instance, a plain reading of the statute reveals no requirement that a parent contesting an adoption proceeding must be interviewed during the preparation of the social services report. Clearly, the social services investigator must have a certain amount of discretion in order to conduct the required "thorough investigation" by making "inquiries." Although interviews of the birth parents generally would be desirable where practicable, had the legislature intended for the investigator to conduct mandatory interviews, rather than making general inquiries, the statute would so state. Moreover, subsection (B) provides for a determination of the matter by the court in the absence of the report altogether.
Even if the phrase, "[t]he report shall include the relevant physical and mental history of the birth parents," were to be construed as calling for interviews with the birth parents, the concluding provision of subsection (D) clearly states that this element of the investigation is not required for completeness. Accordingly, the failure of the social services investigator to interview a birth parent (whether contesting or supporting the adoption) is not an impediment to the trial court's proceeding with the petition hearing, so long as the report represents a "thorough investigation" of the matter. Here, the trial judge expressly approved the report, and the record supports his action.
Due process also does not require that the social services investigator interview the contesting parent. Key was kept fully informed during every stage of the adoption process. He was present and represented by counsel during the ore tenus hearing and was permitted to cross-examine all witnesses and present his own witnesses and evidence. There is no possibility that Key's opposition to the petition went unnoticed by the trial judge during his determination of the matter. Where the trial judge's decision is based upon an ore tenus hearing, that decision is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986); Code § 8.01-680.
Accordingly, the action of the trial judge in terminating Key's parental rights and allowing the adoption to proceed is affirmed.
Affirmed.