Ah, those agreed dispositions. It is well known that many parents will sign anything if it seems to hold out at least some small, desperate hope that cooperation will keep the system from disappearing their children into the terminations-adoption pipeline without even so much as a chance to wave goodbye. Two parents who agreed to a stipulation that abuse occurred after one accused the other of sexually abusing their daughter, and who both wanted to see their child again, ended up with a very non-specific order that the Court of Appeals says is no good. (Not improper, but it must be redone anyway.) It is devoid of various findings that the Court of Appeals, in a very long opinion, says are absolutely necessary. (How exactly the parties were able to appeal an agreed order remains a good question, but readers are not referred to the Record for further Enlightment, because it’s sealed.)
The circuit court, like the juvenile court before it, could not make an order of abuse with nothing more. It was required, even though the parties stipulated they would be bound by the court’s finding and order, to take evidence as to exactly what happened, what was done and which parent did it, and then and only then, make a specific protective order that would serve the best interests of the particular child involved, and take into account the rights of the parents.
If a case like this somehow gets to circuit court on de novo appeal, can the circuit court just look at the JDR record and adopt such an order — if it indeed is suitably specific and tailored as a product of such an evidentiary hearing? The Court of Appeals, despite what it has said in several cases lately about the sanctity of de novo concepts, apparently thinks so.
Now get this part: although making the “what” finding without the “who” finding was held “proper,” the trial court is required to go back and do it all over the other way.
The Court of Appeals in this case has more to say about the requirements of a sufficient consent (or non-consent) order. “On the facts of the case, fashioning a disposition that safeguards the best interests of the child includes not only protecting her from abuse and significant conflict between her parents but also allowing her to develop a strong, healthy relationship with both parents to the extent possible without jeopardizing the child’s physical safety and emotional welfare.” And the only way to do that is to conduct a truly de novo hearing to answer the question whether the accused parent actually sexually abused the child, in the manner alleged in a petition that was filed. So the court has to hear exactly what act was committed, by whom, and decide whether that parent poses any risk to the child. And, in its evidentiary rulings, the court must not exclude anything that might be relevant to a proper risk assessment. It can’t keep out evidence on the ground that that evidence took place before the agreed JDR court disposition. The Court of Appeals vacated the circuit court dispositional order and the $5,000 fee award made to the mother, but it then went on to specify three ways in which the trial court did not commit reversible error. These three rulings seem very much in conflict with what the Court said in the rest of its opinion, but the Court of Appeals is apparently taking care to be very precise here.
The father and the mother each filed a separate appeal against the other parent and the welfare department. The father’s appellate contention was that, after an administrative reversal of a “founded complaint” of sexual abuse, the trial court erred in refusing to dismiss the abuse and neglect petition filed by the DSS and vacate the JDR protective order. The trial (circuit) court had refused to allow a de novo trial, or even hear evidence, on the issue of whether it was father or mother who abused the child, even though the father argued to the trial court that such clarification was necessary to determine what kind of protective order was appropriate. This father argued that in the absence of a determination that he had abused his child in any way, the circuit court’s limitation of his visitation to three hours supervised per week was reversible error. He also argued that the trial court must determine which parent did it, and the Court of Appeals agrees.
The mother’s appeal against the circuit court argued that when that court interpreted the JDR court order, it interpreted it as finding only that a parent had abused and neglected the child, rather than being a finding that it was the father and that he had abused the child sexually. The Court of Appeals found no error, yet held that despite an apparent stipulation, the trial court was required, as outlined above, to hold a full trial and make full findings, and it vacates and remands for proceedings consistent. Of course it left the protective order in effect until the trial is held.
When the DSS on administrative appeal reversed the “founded” finding, the JDR court order was already on appeal to circuit court, and there the DSS counsel said that “the original rationale for...bringing the petition has in administrative proceedings been unfounded,” but “submitted to the court” whether a protective order was still necessary. The circuit court said both parents wanted the court to hear a full trial, with evidence that had not been before the JDR court. The circuit court, upon the mother’s objections of hearsay and irrelevancy, had refused to let the father put in evidence of the administrative reversal, because “we’re not retrying the adjudicatory order.” (This refusal, by the way, was totally O.K. — although in a new trial on remand, the trial judge will have to look at absolutely everything.)
22 VLW 1411, 51 Va. App. 657, 660 SE2d 307 (4/29/08).