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Case settles, opinion gets yanked

The Court of Appeals has withdrawn an opinion reversing an adoption decision where the trial judge refused to postpone the hearing to allow the child’s mother to participate. The unpublished opinion is no longer available on the court’s website.

The mother planned to challenge termination of her parental rights in Danville Circuit Court, but – on the day of the hearing – she asked for a postponement saying she had just had surgery. Judge David Melesco was unconvinced by the excuse and held the hearing anyway, approving adoption of the child.

The mother appealed to the Court of Appeals. The day before the court handed down its opinion, the mother reached an understanding with the local social services office and moved to withdraw the appeal, according to her attorney, James C. Martin of Danville.

Martin said there was no effort by the parties to suppress the opinion. He said he did not know the opinion would be withdrawn.

Rule 5A:36 provides for withdrawal of an appeal, but does not appear to address the removal of a court opinion.

The Dec. 21 opinion in Harris v. City of Danville Div. of Social Services can still be found on the web at the Justia website.

Appellate lawyer Monica Monday said the court may have removed the opinion because the appeal was mooted before the opinion was released, but she could not recall another instance of an appellate opinion being withdrawn. “This particular scenario, I don’t think I’ve seen it happen,” she said.

By Peter Vieth

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