Edward Johnson v Roanoke City Dept of Social Svcs

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
EDWARD JOHNSON
MEMORANDUM OPINION*
v. 	Record No. 0604-00-3 	PER CURIAM
JUNE 27, 2000
ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Eric Roland Spencer, on brief), for
appellant. 	Appellant submitting on brief.
(William M. Hackworth, City Attorney;
Allen T. Wilson, Assistant City Attorney, on
brief), for appellee. 	Appellee submitting on
brief.
Edward Johnson appeals the decision of the circuit court
terminating his parental rights to his four children. 	Johnson
contends that the Roanoke City Department of Social Services (DSS)
failed to present sufficient evidence pursuant to Code
§ 16.1-283(E) to terminate his parental rights to his children
Ishmeal, Alisia or Tina. 	Upon reviewing the record and briefs of
the parties, we affirm the decision of the trial court.
"When addressing matters concerning a child, including the
termination of a parent's residual parental rights, the paramount
consideration of a trial court is the child's best interests."
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

Logan v. Fairfax County Dep't of Human Dev., 13 Va. App. 123, 128,
409 S.E.2d 460, 463 (1991). 	"Code § 16.1-283 embodies 'the
statutory scheme for the . . . termination of residual parental
rights in this Commonwealth' [which] . . . 'provides detailed
procedures designed to protect the rights of the parents and their
child,' balancing their interests while seeking to preserve the
family." 	Lecky v. Reed, 20 Va. App. 306, 311, 456 S.E.2d 538, 540
(1995) (citations omitted). 	"'In matters of a child's welfare,
trial courts are vested with broad discretion in making the
decisions necessary to guard and to foster a child's best
interests.'" 	Logan, 13 Va. App. at 128, 409 S.E.2d at 463
(citation omitted). 	The trial judge's findings, "'when based on
evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.'" 	Id. (citation
omitted).
The facts are not in dispute. 	Johnson was convicted of the
malicious wounding of his two-year-old son, Edward Isiah
Johnson. 	Following Johnson's conviction, DSS filed petitions to
terminate Johnson's parental rights to all four children,
ranging in age from one to four years old. 	DSS did not produce
any evidence during the hearing concerning the other three
children or their relationships with or treatment by Johnson.
The trial court ruled that by proving Johnson maliciously
wounded one of his children, DSS presented prima facie evidence
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sufficient under Code § 16.1-283(E) to terminate Johnson's
parental rights to all four children.
The statute provides, in pertinent part, as follows:
The residual parental rights of a
parent . . . of a child who is in the
custody of a local board or licensed
child-placing agency may be terminated by
the court if the court finds, based upon
clear and convincing evidence, that it is in
the best interests of the child and that
. . . (iii) the parent has been convicted of
an offense under the laws of this
Commonwealth . . . which constitutes felony
assault resulting in serious bodily injury
or felony bodily wounding resulting in
serious bodily injury or felony sexual
assault, if the victim of the offense was a
child of the parent or a child with whom the
parent resided at the time of such offense.
As used in this section, "serious bodily
injury" means bodily injury which involves
substantial risk of death, extreme physical
pain, protracted and obvious disfigurement,
or protracted loss or impairment of the
function of a bodily member, organ or mental
faculty.
Code § 16.1-283(E). 	By its express language, Code § 16.1-283(E)
does not limit the authority of the trial court to terminate
parental rights only to children who are the direct victims of
the parent's felonious assault. 	The express language of the
statute permits the termination of parental rights of other
children who would be endangered where a parent has maliciously
wounded one of his or her children. 	The obvious purpose of the
statute is to allow the court to terminate a parent's parental
rights when the parent's conduct poses a serious endangerment to
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a child's well-being without requiring that the Court wait until
the child is harmed before terminating the parent's rights.
In this instance, the trial court ruled that DSS
established a prima facie case under the statute as to all four
of Johnson's children when it proved that he was convicted of
the malicious wounding of his son, Edward Isiah. 	While DSS did
not present evidence relating to the other three children during
the hearing, relevant information concerning each of them was
set out in other parts of the record. 	The trial court found by
"clear and convincing evidence . . . that the termination of
parental rights is in the best interest" of each of the four
children. 	That finding is supported by evidence in the record.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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Benton, J., dissenting.
"[T]ermination of the legal relationship between parent and
child is a grave proceeding . . . [which] renders the parent 'a
legal stranger to the child' and severs 'all parental rights.'"
Weaver v. Roanoke Dep't of Human Resources, 220 Va. 921, 926,
265 S.E.2d 692, 695 (1980) (citation omitted). 	Thus, the
legislature has specifically required that this drastic and
irreversible action can only be ordered "upon clear and
convincing evidence, that it is in the best interest of the
child." 	Code § 16.1-283(E). 	When applying this statute, courts
are required to have "a respect for the natural bond between
children and their natural parents" because "preservation of the
family, and in particular the parent-child relationship, is an
important goal for not only the parents but also government
itself." 	Weaver, 220 Va. at 926, 265 S.E.2d at 695.
Although I agree with the majority that Code § 16.1-283(E)
does not limit the authority of the trial judge to terminate
parental rights only as to children who are the direct victims
of felony assault, that is not the issue raised by this appeal.
The trial judge erred in this case in determining that Code
§ 16.1-283(E) created a "statutory directive of a prima facie
case." 	Before the trial judge could terminate Johnson's
parental rights to any one of his children under Code
§ 16.1-283(E), the Department was required to prove not only
that Johnson "has been convicted of an offense . . . which
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constitutes felony assault resulting in serious bodily injury
. . . [to his] child" but also that "based upon clear and
convincing evidence, that [termination of Johnson's parental
rights] is in the best interests of the child." 	Thus, by its
express language, Code § 16.1-283(E) required that the
Department prove by clear and convincing evidence that Johnson
was convicted of the malicious wounding of one of his children
and that the termination of Johnson's parental rights was in the
best interests of each of his children.
The uncontested evidence established that Johnson broke the
femur of his son, Edward Isiah. 	The Department presented no
evidence at the hearing, however, to establish the circumstances
surrounding that event. 	The Department also failed to present
evidence concerning Johnson's conduct toward the other children.
Indeed, from the evidence presented at trial, the trial judge
had no basis to know what kind of parent Johnson was for his
other children. 	The Department failed to present any evidence
whatsoever concerning the well-being of the children or
Johnson's relationship with them. 	In short, no evidence proved
that termination was in the best interests of Johnson's other
three children.
Under the statute, the trial judge must do more than find,
as he did, that Johnson was convicted of the malicious wounding
of his son. 	The trial judge must affirmatively find, based on
clear and convincing evidence, that termination of Johnson's
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parental rights is in the best interests of each child for whom
a petition is presented. 	In the absence of any evidence
concerning the other children, there was insufficient evidence
for the trial judge to make that determination. 	The Supreme
Court has consistently ruled that "[c]onclusions unsupported by
facts are insufficient to sever for all time the legal
connection between parent and child." 	Ward v. Faw, 219 Va.
1120, 1125, 253 S.E.2d 658, 662 (1979); see also Weaver, 220 Va.
at 929, 265 S.E.2d at 697.
For these reasons, I believe it was error to terminate
Johnson's rights as to the other three children in the absence
of clear and convincing evidence justifying that action. 	I
dissent.
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