Virginia Family Law Appeals

Mom's boyfriend can be prosecuted as person responsible for abused/neglected child

CHILD ABUSE/NEGLECT – CRIMINAL CHARGES – ELIGIBLE DEFENDANTS.  Can a person whose only relationship to the child is “mother’s boy friend” (live-in) be prosecuted as a “person responsible” for a child who suffers neglect or abuse or both while in his care?  Well he certainly can be if he is the adult whose intentional blows broke the small child’s leg. And that’s true even if the child’s actual parent was present at the time of the injury, the Court of Appeals held in Carrington v. Commonwealth, ___ Va. App. ___, ___ S.E.2d __, 26 VLW 1080 (2/14/12).  This man was responsible for the child when the child “was injured,” and he had been acting in the father role by helping to feed and bathe the child and get the child to sleep at night.  In fact, he had been trying to give the child a bottle when he ended up hitting the infant.  Nothing in this criminal statute says a defendant who had joint responsibility for a child can’t be guilty of criminal child neglect.

 

Video, psychologist evidence allowed to refute child molesting accusations

EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.

Donor intent makes stock "sale" to son really a gift, thus separate property

PROPERTY DIVISION – MARITAL OR SEPARATE – GIFT OR SALE? — NOMINAL SALES WITH TOKEN CONSIDERATION.  In an opinion concerning transfers of at least three kinds of stock from a family corporation to a husband, the Court of Appeals found gifts instead of sales, and reversed as plainly wrong the trial court’s classification of the stock as marital.  This was in Sfreddo v. Sfreddo, 59 Va. App. 471, 720 S.E.2d 145, 26 VLW 984 (1/24/12).  The stock of a family chemical business was owned by the husband, his brother and their mother. The circumstances created some confusion as to how much of a sale this was and how much it was actually a gift, but there seems to have been no question that the transfer was to the husband alone, and not to the couple. The corporate minutes labeled the transfer of “Triple S Co.” stock as a sale and there was token consideration reflected, and for that reason the trial court found it was not a gift, as husband had failed to prove corporate intent to make a gift.  It sounded that way because the corporation issued new stock to him and redeemed the mother’s shares. That showed an intent of husband’s mother to make a gift of Triple S stock to him, and the trial court found no evidence that there was not delivery and acceptance. The Court of Appeals observed that there had been no evidence after the transfer of commingling, transmutation, or joint titling of the stock to the couple. This was not good enough for the trial court, and it found no showing by the husband of corporate donative intent. The appellate court differed. Since the corporation is but a fictitious entity, the intent of the Board of Directors is necessarily the intent of the corporation, the Court of Appeals said. It found corporate intent to give the shares clearly present, and the trial court decision clearly wrong and unsupported by the evidence. The Court of Appeals chose to disregard the corporate-minutes labeling and the token consideration in view of other circumstances.  Using the corporate minutes the Court of Appeals found that the redemption of the mother’s stock was followed by the sale of 200 shares to the husband at a $1.00 a share, which was not at all fair market value. Not only that, but husband’s new shares would constitute half the company. When half the company was sold in 2003 it went for $1.5 million, and that supported a finding that the remaining 200 shares were worth $7,500 per share on the date of trial. Not only that, but all three directors testified that they considered the transfer a gift, and the trial court itself had specifically found that the mother’s intent as to the shares she conveyed was to make a gift, so intent was proved by clear and convincing evidence and the trial court was plainly wrong to find no gift. Nominal consideration makes no difference because the Court of Appeals, to find a valid sale, is looking for a “bargained-for” exchange. The Court recited a lot of corporate law principles, with ample citations, including the one that intent of the sole stockholder can evidence intent of the corporation. Though the husband also contended on appeal that the trial court erroneously valued his stock in “APS Investments,” which he owned with his brother, the Court of Appeals upheld the valuation because all APS owned was a single piece of property and one bank account, and considering the value of the stock, the trial court had been well within its discretion.

US law pre-empts state law changing beneficiaries at divorce - Va.Sup.Ct.

SPOUSAL DEATH BENEFIT STATUTE CHANGING BENEFICIARY UPON DIVORCE – FEGLI – FEDERAL PREEMPTION.  Contrary to the rulings of a majority of state courts, the Virginia Supreme Court held in Maretta v. Hillman, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 58 (1/13/12) that yes, Virginia, the federal statutory law that awards even a divorced widow, even in our Commonwealth, the late husband’s Federal Employees’ Group Life Insurance (FEGLI), overrides Va. Code §20-111.1(D), denies those benefits to a new wife and now widow, and does not require the payback to the new spouse that §20-111.1(D) would otherwise dictate. After all, the majority said, the FEGLI statute, 5 U.S.C. §8701 et seq. has a provision, §8709(d)(1), which expressly preempts state legislation to the contrary, and a definite scheme of priorities for the award of the benefits under §8705(a). The opinion also states that the Virginia Supreme Court is well aware that it is taking the minority position among states. Justices McClanahan and Millette dissent, holding that the federal statute cannot preempt the payback provision of Virginia Code §111.1(B), which has itself wording that says that it operates when there has been a federal preemption. The majority thinking was that allowing the payback requirement would directly frustrate the intent of Congress, but the dissenters believe that Virginia is free to create an equitable claim for compensation under its domestic relations laws, which, after all, have always been regarded as matters of state law. 

Virginia parent termination procedures held constitutional in head-beating case

PARENTAL RIGHTS TERMINATION – EVIDENCE — CONSTITUTIONAL CHALLENGE – STATUTES UPHELD – PRIOR LIMITING CONSTRUCTIONS – TERMINATION FOR CHILD ABUSE/NEGLECT – BLOWS TO HEAD – PEDIATRICIAN’S TESTIMONY ON ULTIMATE ISSUE.  The Court of Appeals goes over some ground that it and the Supreme Court have already covered, in order to reject some constitutional challenges by an accused father.  While the father argued that termination requires, under Santosky v. Kramer, 455 U.S. 745 (1982), proof of each supporting allegation by clear and convincing evidence, the Court of Appeals says that despite the arguably sub-constitutional wording of Virginia Code §16.2-283(E), this father was accorded the constitutional evidentiary standard, which applies to both termination itself and abuse/neglect findings, because under Virginia case law terminations can’t be based solely upon prior abuse or neglect findings, and there’s a requirement that courts find the abuse or neglect was bad enough to present a substantial threat to the child’s “life, health or development.” Code Section 16.1-283(B)(1) requires that that finding be made upon clear and convincing evidence. Section 16.1-283(A) does require separate hearings on abuse allegations and termination remedies, in a way that will not allow them to be confused. The court in this case simply considered prior administrative findings and did not consider them dispositive.  Though the father argued that the Court was also constitutionally required to find that maintenance of any relationship between him and the child would be a detriment to the child, the Court of Appeals regards that standard as satisfied because §16.1-283(B) does require that the parent be found unlikely to substantially remedy or eliminate the conditions that led to the abuse or neglect in a reasonable time.  Since those findings are sufficient to amount to the constitutional standard, the Court of Appeals says, the father had no legitimate constitutional complaint.  They declined what they characterized as the father’s invitation to add new requirements to the Virginia statute.  After affirming “abuse or neglect” of two of the children, and holding that that abuse or neglect posed a substantial threat to their lives, health or development, the Court went on to find intentional infliction of the injuries to another child satisfactorily proved.  The child’s pediatrician, who has ministered to him since birth, and was present at the hospital when the child was brought in, testified that the injuries were caused by parental abuse. Code §8.01-401.3 allows an expert witness to testify to the ultimate issue whenever that expert qualifies by knowledge, skill, experience, training or education.  Thus the expert’s testimony at the hearing that the injuries were consistent with non-accidental trauma was fine.  She found that diffuse bilateral subdural hematomas and bilateral retinal hemorrhages, all without outward signs of physical injury, were quite enough.  Farrell v. Warren County DSS, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 933 (1/10/12). (The mother’s appeal in this case is dealt with in a separate opinion and case note.)

Uncle's girlfriend's parents aren't "relatives" in child placement - Va. Ct. App.

PARENTAL RIGHTS TERMINATION – RELATIVES PLACEMENT ACTION — DEFINITION OF RELATIVE.  It’s true that the Virginia statutes require that in termination cases once a child is adjudicated “dependent” the court must consider granting custody to the child’s relatives rather than foster care or adoption.  However, the definition of “relative” for these purposes does not include the mother’s brother’s girl friend’s parents.  And yes, §16.1-283(A) does require consideration of all “reasonable adoptions for placement with immediate relatives” as a requirement of termination, but remote connections are not relatives of the child “as a matter of law.”  The statutes used words that have an established common law meaning, and a court can presume that the Legislature intended that established meaning unless the statute clearly suggests otherwise.  Under common law a “relative” means somebody related by blood or marriage.  It has not been expanded statutorily to add adoptive relationships, but what was proposed here was honoring an even more tenuous connection.  Bagley v. City of Richmond DSS, ___ Va. App. ___, ___S.E.2d ___, 38 FLR 1178 (1/31/12).

How one couple kept separate property separate - Pratt v. Pratt

PROPERTY DIVISION – MARITAL & SEPARATE – KEEPING SEPARATE SEPARATE. The sacred presumption of marital goes only so far, it seems, as we learn from an unpublished (for whatever that might be worth) opinion in Pratt v. Pratt, 26 VLW 935 (12/20/11), that yes, Virginia, there is such a thing as maintaining separateness of worldly possessions. So how’s this for keeping separate separate? A preacher who had kept the house when his first wife left him apparently got it in the divorce or settlement as all his own, and ten years later remarried. He took out a mortgage on the place two years before that, and after remarrying, refinanced three times, but staying the only debtor on the mortgage notes and keeping sole title, as he had since 1998. Second wife retired in 2001 and became a homemaker. Husband had a credit union account in his own name during most of the marriage, and he used that to make the mortgage payments. The wife put money in that account in 2006, but she removed it. That was after already removing $12,000 just before she left. The value of the house had been declining since 2009. Wife decorated and furnished the place, claimed she had written $10,000 in checks to the husband over the years for household related expenses, but the husband denied that she had contributed to the mortgage payments and said that all her renovation projects had never been completed. To complicate matters he got a $71,000 inheritance in 2005, but he deposited that to the credit union account in his own name. Husband showed that he used $16,000 from that to buy a car and jointly titled it, and acquired an investment fund worth about $10,000 titled in both names. And while the wife claimed that the car was predominantly driven by her and husband had to ask her permission to use it, husband testified he neither added money to nor removed it from the investment fund during this whole marriage. When he sued wife for divorce, the Fairfax Circuit Court gave wife 50% of the marital home, half the investment fund and ownership of the car. Court of Appeals used Duva v. Duva, 55 Va. App. 286, 685 S.E.2d 842 (2009), to show the trial court that it approached this in the wrong way, applying the wrong standard when it classified the house as all marital. The presumption is not that the husband’s pre-maritally owned house is marital, but that it is separate, and that presumption was not refuted here. And, citing Duva, the Court specifically rejected the argument that the property could not be separate since the husband did not get full legal title until after his second marriage. It has already been established in Virginia law, also, that showing only customary care by the non-owner spouse does not convert or transmute separate property. What is required is significant personal efforts by either spouse while married that result in a substantial appreciation of the separate property. Code §20-107.3(A)(1) and (A)(3)(a). Wife here showed only customary care, maintenance and upkeep and showed no significant value increase. The car should not have been classified marital, as it was re-traceable to the inherited money. Thus his joint titling of the car would not be regarded as a gift. The burden was on her and she “failed to prove by clear and convincing evidence, husband’s intent to give her the Toyota as a gift.” Mere joint titling does not create a presumption of gift, and there was no evidence shown here of donative intent, so classifying the car as marital was error. All the husband intended to give to the wife was the use of the car. Similarly, the investment fund was clearly re-traceable to the separate property inheritance, and registering it under joint names was rendered ineffectual for property classification purposes. It was husband’s uncontradicted testimony that he had established this fund before marriage.

If state takes a child from parent must it take siblings too? Not always; kids' needs vary. - Va. Ct. App.

PARENTAL RIGHTS TERMINATION – OTHER CHILD TOO AS PACKAGE DEAL.  The Welfare Department’s nasty but understandable habit of termination of rights as to all the kids because a parent has abused or neglected one is not always acceptable to the courts. And properly so, the Court of Appeals held in Fauquier County DSS v. Ridgeway, 59 Va. App. 185, 717 S.E.2d 811 (12/6/11).  A circuit court agreed to terminate a mother’s parental rights as to her older child, but rejected the petition as to the younger one, holding that the statutory standard had not been met. The DSS of course appealed.  Of the couple’s four children, the oldest two were the most “special needs,” and all the children had been taken away from the parents and put in foster care.  This mother non-complied with her subsequent “service plan goal agreement” in several ways and the evidence showed that the oldest had been sexually abused because he exhibited explicit sexualized behavior.  The court granted the termination as to the oldest two children, but denied it as to the younger two, and the DSS appealed as to the third oldest.  The Court of Appeals starts its analysis by citing a case saying that the paramount consideration in a termination case is best interests.  The DSS of course argued that it wouldn’t be reasonable not to make an inference that if the mother was unable to parent two children she will necessarily end up having the same bad things happening to the younger kids, and therefore she should lose custody of all.  The Court of Appeals thought otherwise, as a court must carefully consider individually what the evidence has been as to each child and apply the statutory criteria to each.  One of the several things the trial court took note of was that when the mother was granted visitation with her foster cared kids, a lot of her attention had to be devoted to managing the two unruly older boys.  It did not find that enough evidence had been shown to analyze the mother’s parenting skills as to the younger two children. It observed that if she had only the younger two, she wouldn’t be as outnumbered and overwhelmed by the management of those, without the ill-behaved older boys making it impossible.  The trial judge found nothing to suggest that the mother and maternal grandmother could not properly supervise nor focus attention on the two younger children.  The court did not err in so reasoning, the Court of Appeals said. But aha, the DSS countered: the trial court erred by returning custody of the third child to the mother because that would violate an outstanding foster care plan in the form of a JDR court order that the mother had not appealed to circuit.  No, the Court of Appeals patiently explained, as clearly stated in a 2005 opinion, an order denying termination and transferring custody back to the mother entirely moots the foster care decision and plan.  After all, termination and foster care recommendation approval have very different burdens of proof, and the one for termination is considerably more stringent.  And it necessarily includes, the Court of Appeals held, a custody decision.

Unwed father in In Vitro Fertilization isn't mere "sperm donor" - Va. Ct. App.

PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE.  An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11).  Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not. 

It all began like a typical idyllic story of 21^st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends.  The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary.  Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts.  Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.”  She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully.  They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go.  Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.” 

On July 13^th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate.  They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward.  It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter.  When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....”  The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.”  He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him.  The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest. 

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd.  Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo.  It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10.  Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found.  The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here.  She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights.  Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself.  The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2).  Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit.  That, it said, would be a manifest absurdity.  The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals.  These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception. 

Keep Fact Statements Factual, Relevant, Short & Clear, Court Warns

Keep Fact Statements Factual, Relevant, Short & Clear, Court Warns