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ARSENAULT v. ISLE OF WIGHT COUNTY DEPARTMENT OF SOCIAL SERVICES


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ARSENAULT

v.

ISLE OF WIGHT COUNTY
DEPARTMENT OF SOCIAL SERVICES


MAY 29, 2001

Record No. 2609-00-1

Present: Judges Willis, Frank and Clements

LAURIE ARSENAULT

v.

ISLE OF WIGHT COUNTY

DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY

Westbrook J. Parker, Judge


MEMORANDUM OPINION[1] PER
CURIAM

(L. Wayne Farmer; Barlow & Riddick, P.C.,
on briefs), for appellant. Appellant submitting on briefs.

(Richard L. Francis; Inga E. Francis;
Francis & Francis, P.C., on brief), for appellee.
Appellee submitting on brief.

Laurie Arsenault, appellant, appeals the
decision of the trial court denying her motion to rehear the
termination of her residual parental rights to her daughter.
Finding that the trial court properly terminated appellant’s
residual parental rights and did not abuse its discretion in
denying rehearing, we affirm the trial court’s decision.

MOTION TO DISMISS

The Department of Social Services has moved to
dismiss the appeal on the ground that the statement of facts,
which is indispensable to a decision on appeal, was not filed in
accordance with the requirements of Rule 5A:8(c)(1), and thus was
not properly made a part of the record. We deny this motion.
Counsel for the Department of Social Services and the guardian ad
litem endorsed the proposed statement of facts as being
accurate and noted no objection to any of the circumstances
surrounding its filing. The trial judge certified the statement,
noting no objections. The appellee thereby waived any objection
to the timing and manner of the statement’s filing.

BACKGROUND

On March 14, 2000, the juvenile and domestic
relations district court (J&DR court) terminated appellant’s
residual parental rights to her daughter pursuant to Code
? 16.1-283(C). Appellant appealed that decision to the
trial court. She signed the notice of appeal, which stated that
her trial date would be scheduled on May 8, 2000 at 9:00 a.m.
This notice contained a warning, stating: "If you fail to
appear, you are subject to a conviction and judgment in your
absence being entered against your case in the Circuit
Court."

On May 1, 2000, the trial court entered an
order setting appellant’s trial for September 22, 2000 at 9:00
a.m. This order stated that counsel for the parties had been
contacted and had agreed to that date.

On September 22, 2000, appellant failed to
appear. Her counsel, who had also been her attorney at the
J&DR court proceeding, appeared. He represented to the trial
court that he had had no contact with appellant since the hearing
in J&DR court. He stated that he had attempted unsuccessfully
to contact appellant by telephone and by mail and that he had not
heard from her.

Debra Alphin, the child’s foster mother, and
Sharon Banks, a social worker for the case, testified that
appellant had been in contact with them subsequent to the hearing
in J&DR court. Both women testified that appellant told them
she was not going to pursue her appeal, that it was in the
child’s best interests to be adopted by the Alphins, and that she
was not going to appear further in court.

The child’s guardian ad litem and
the child’s father testified they believed it was in the best
interests of the child that appellant’s residual parental rights
be terminated.

The trial court dismissed appellant’s appeal
and terminated her residual parental rights to her daughter.

On the afternoon of September 22, 2000,
appellant’s attorney notified the trial court that appellant
intended to file a motion to rehear the matter. On October 25,
2000, the trial court heard the motion to rehear. Appellant
testified that she thought the trial court hearing was scheduled
for 2:00 p.m. on September 22, 2000 because all prior hearings
had been at 2:00 p.m. She also stated that on September 22, 2000,
sometime between 12:00 p.m. and 1:00 p.m., she telephoned the
trial court clerk’s office to confirm the 2:00 p.m. hearing time
and was then advised that the hearing had already taken place.
She immediately contacted her attorney and advised him that she
wanted to pursue the appeal.

Appellant also testified that she received a
notice stating the hearing was scheduled for 2:00 p.m. However,
she could not produce that notice. She stated that she had
received no notice from her counsel concerning the trial, but
admitted she had moved twice, and had not notified her counsel of
the changes in her address. She admitted that she told Alphin and
Banks that she might not pursue her appeal, but stated that she
made those statements during "difficult times."
Appellant asserted that, subsequent to those conversations, she
had resolved several issues and now wished to "vigorously
pursue her appeal and protect her parental rights."

The trial court dismissed appellant’s appeal,
affirmed the termination of her residual parental rights, and
denied the motion for a rehearing. Appellant appeals that
decision.

ANALYSIS

"The decision whether to grant or deny a
rehearing is within the trial court’s sound judicial
discretion." Hughes v. Gentry, 18 Va. App. 318, 326,
443 S.E.2d 448, 453 (1994).

The record supports the trial court’s finding
that appellant was properly on notice as to when her case would
be set for trial and of the consequences of her failure to appear
at the trial. Furthermore, on May 1, 2000, the trial court
entered an order establishing the September 22, 2000, 9:00 a.m.
trial date and time. Appellant was charged with knowledge of the
trial date and time noted in the court order, a public record.
Furthermore, her attorney had notice. "The attorney-client
relationship presumes that attorney and client, as servant and
master, will communicate about all the important stages of the
client’s upcoming trial. Notice to [appellant's] attorney of
record of the trial date is evidence that the notice was given to
[appellant]." Hunter v. Commonwealth, 15 Va. App.
717, 722, 427 S.E.2d 197, 201 (1993) (en banc)
(addressing a conviction for willful failure to appear under Code
? 19.2-128).

The evidence established that appellant’s
counsel had notice of the trial date and time and that he had
advised the trial court prior to the entry of the order that the
date was "agreeable." However, appellant failed to keep
in touch with her attorney, failed to advise him of her changes
of address, and failed to ascertain the time for the trial. She
told two witnesses that she intended to withdraw her appeal.
Under these circumstances, and upon the assertions of the child’s
father and the guardian ad litem, the trial court
did not err in terminating appellant’s residual parental rights
and did not abuse its discretion in denying a rehearing.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

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