Opinion
Record No. 2030-18-3
03-17-2020
Christopher PILENZA v. NELSON COUNTY DEPARTMENT OF SOCIAL SERVICES
Brady S. Nicks for appellant. P. Scott De Bruin ; Herbert E. Taylor, III, Guardian ad litem for the minor child (The Law Offices of Herbert E. Taylor, III, PLLC, on brief), Lynchburg, for appellee.
Brady S. Nicks for appellant.
P. Scott De Bruin ; Herbert E. Taylor, III, Guardian ad litem for the minor child (The Law Offices of Herbert E. Taylor, III, PLLC, on brief), Lynchburg, for appellee.
Pursuant to Rule 5A:19(d), the guardian ad litem filed a notice relying on appellee’s brief and argued in support of appellee’s position.
Present: Judges Petty, Beales and Athey
OPINION BY JUDGE CLIFFORD L. ATHEY, JR. Christopher Pilenza ("Pilenza") and Carrie Pilenza ("mother") are spouses and parents of C.P., born December 18, 2016. They separately appeal a determination by the Circuit Court of Nelson County ("circuit court") terminating their parental rights and placing C.P. with Nelson County Department of Social Services ("NCDSS").
To protect the child’s privacy, we use her initials rather than her name. Additionally, the record in this case was sealed. In order to appropriately address the assignments of error Pilenza raises, this opinion includes portions of the record that were sealed. "To the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed." Levick v. MacDougall, 294 Va. 283, 288 n.1, 805 S.E.2d 775 (2017).
This is a companion case to Carrie Pilenza v. Nelson Cty. Dep’t of Soc. Servs., No. 0034-19-3, 2020 WL 1262657 (Va. Ct. App. Mar. 17, 2020), also decided this day.
On appeal, Pilenza’s first assignment of error states:
A [circuit] court must give consideration to granting custody to relatives of a child prior to terminating parental rights. A relative means a person related by consanguinity or affinity. Consanguinity is a "relation by blood." The [circuit] court mistakenly construed the term "relative" when it excluded from the definition appellant’s blood cousin.
NCDSS responded by arguing that Pilenza’s biological cousin is not a relative under the statute. The agency reasoned that because Pilenza had been adopted, any legal relationship with his biological cousin had been severed. We agree with that argument, and thus affirm.
Pilenza’s second and third assignments of error are both premised on the assumption that his cousin is a legal relative. Because of our conclusion to the contrary, we need not address these assignments of error.
I. BACKGROUND
On June 7, 2017, C.P. came into the care and custody of NCDSS pursuant to an emergency removal petition. On February 20, 2018, NCDSS sought to terminate the residual parental rights of Pilenza and mother. Mother had been hospitalized for mental illness, and Pilenza had been incarcerated for eluding police and endangering the life of C.P., who was in the vehicle Pilenza was driving when he was arrested for eluding the police.
The Nelson County Juvenile and Domestic Relations District Court ("JDR court") heard the matter on August 27, 2018. Because both Pilenza and mother were absent, the JDR court adjudicated C.P. as abused or neglected and indicated that its finding was based upon C.P. being "without parental care or guardianship caused by the unreasonable absence or the mental or physical incapacity of the child’s parent, guardian, legal custodian or other person standing in loco parentis ." Pursuant to the JDR court’s order, C.P. remained in the care of NCDSS until ultimately being placed with a foster care family.
With Pilenza’s approval, his biological cousin, Jonathon Cejmer ("Cejmer") subsequently filed for custody of C.P. in the JDR court. In describing his relationship with Cejmer, Pilenza testified at the de novo hearing in the circuit court that Pilenza had been adopted and that Cejmer is not his cousin through that adoption but rather is his biological cousin. NCDSS investigated Cejmer as a placement option, but Cejmer withdrew his petition before the hearing in the circuit court.
Cejmer is misspelled as "Cejner" in the transcript.
At the conclusion of the hearing, the circuit court terminated the residual parental rights of Pilenza and mother. The circuit court also held that Cejmer was not a relative within the meaning of Code § 63.2-1215 because when Pilenza was adopted, his relationship as a relative to Cejmer was terminated and his adoptive family became his relatives for purposes of Code § 63.2-1215.
Because Pilenza does not contest the grounds supporting the trial court’s termination decision, it is unnecessary to discuss the reasons the trial court cited for terminating his parental rights.
II. ANALYSIS
Initially, Pilenza contends that "[t]he [circuit] court mistakenly construed the term ‘relative’ when it excluded from th[at] definition appellant’s blood cousin."
Whether a person is a relative pursuant to Code § 63.2-1215 is a question of law that this Court reviews de novo . Rudolph v. City of Newport News Dep’t of Human Servs., 67 Va. App. 140, 145, 793 S.E.2d 831 (2016).
Pursuant to Code § 16.1-283(A), a termination order must be "accompanied" by an order granting custody of the child to the agency or to a specific individual. Bagley v. City of Richmond Dep’t of Soc. Servs., 59 Va. App. 522, 524, 721 S.E.2d 21 (2012). In granting custody, however, the circuit court "shall give ... consideration to granting custody to relatives of the child, including grandparents." Code § 16.1-283(A) (emphasis added). This Court has interpreted this provision to require agency consideration of all " ‘reasonable options for placement with immediate relatives’ as a prerequisite to a parental termination decision." Bagley, 59 Va. App. at 524, 721 S.E.2d 21 (quoting Hawthorne v. Smyth Cty. Dep’t of Soc. Servs., 33 Va. App. 130, 136, 531 S.E.2d 639 (2000) ).
We note that the statute was amended effective July 1, 2019; the new language states that the circuit court "shall give a consideration to granting custody to a person with a legitimate interest."
A relative is a person related by consanguinity or affinity. Id. Consanguinity describes a blood relation between persons sharing a common ancestor. Id. The blood relation, however, ends upon the finalization of an adoption because the General Assembly intended that result through enacting Code § 63.2-1215. See Kummer v. Donak, 282 Va. 301, 306, 715 S.E.2d 7 (2011) (explaining that "consanguinity ceases to be paramount where the legislature expresses an intention to the contrary").
Code § 63.2-1215 states that
any person who has an interest in the child that derives from or through the birth parent or previous adopted parent, including but not limited to grandparents, step-parents, former step-parents, blood relatives and family members shall, by final order of adoption, be divested of all legal rights and obligations in respects to the child including the rights to petition any court for visitation with the child.
Thus, pursuant to Code § 63.2-1215, a person’s "blood connection" and status as a "relative" ceases to exist once that person is adopted.
Applying these principles here shows that Cejmer is not a "relative" of C.P. within the meaning of the statute. Although a circuit court, by statute, must consider granting custody to relatives of a child when ordering the termination of parental rights—and the agency must consider reasonable placement with immediate relatives—a person is no longer a relative of his or her biological family once his or her adoption is finalized.
It is undisputed here that Pilenza was adopted. In fact, Pilenza admitted that he had been adopted and that Cejmer was not his cousin through adoption. Cejmer is, therefore, Pilenza’s biological cousin, and their blood connection within the meaning of the statute ceased to exist once Pilenza’s adoption was finalized. Because the Virginia General Assembly decided that adoption should sever the connection, Cejmer and Pilenza are no longer relatives even though they share a common ancestor by blood.
Because any alleged connection between Cejmer and C.P. would derive from Pilenza—whose legal connection to his biological family, including Cejmer, was severed by adoption—C.P., later born to Pilenza, is not a relative of Cejmer within the meaning of the statute. Thus, the circuit court did not err in finding that C.P. was not a relative of Cejmer.
We additionally note that Cejmer withdrew his petition to foster C.P. before the circuit court heard this matter.
III. CONCLUSION
For these reasons, we affirm the trial court’s judgment.
Affirmed.