Virginia Lawyers Weekly//October 3, 2023
Virginia Lawyers Weekly//October 3, 2023//
The circuit court correctly appointed father as the guardian of the parties’ adult son. Mother’s appellate challenge to the appointment “is wholly without merit.”
Statement of the case
“Kristin Lynn Burns (mother), pro se, appeals an order appointing Kenneth William Sullivan (father) guardian for their adult son (son). Mother argues that the circuit court erred by accepting father’s petition and appointing a guardian ad litem (GAL) for son ‘without notice to any potential parties.’
“She further alleges that the circuit court erred in permitting the GAL to waive son’s legal rights in the proceeding and failing to compel son’s participation in the hearing.
“Mother also asserts that the circuit court erred by failing to hold an ‘expedient [sic] status hearing’ so it could address the ‘health and safety’ of son and the parties’ minor daughter and then hold an evidentiary hearing to terminate father’s custodial rights to daughter and guardianship of son.
“In addition, mother contends that the circuit court erred by denying her access to son’s mental health records and relied on ‘inadequate evidence’ to establish son’s incompetence. She also claims that the circuit court failed to consider ‘less restrictive alternatives’ than the guardianship.
“Finally, she argues that the circuit court erred by entering an ‘indefinite’ guardianship, sealing the files, and denying her post-trial motions.
“After examining the brief and record in this case, the panel unanimously holds that oral argument is unnecessary because ‘the appeal is wholly without merit.’ … [W]e affirm the circuit court’s judgment.
“Over the years, father has sought mental health services and medication for son, who has been diagnosed with autism spectrum disorder, pervasive developmental disorder, disruptive mood dysregulation disorder, generalized anxiety disorder, parent-biological child conflict, and unspecified psychosis not due to a substance or known physiological condition.
“Father has obtained services and support for son through the Community Services Board and The Arc of Northern Virginia. Due to his mental health, son has been hospitalized on ‘multiple occasions,’ including month-long stays in 2020 and 2021. In addition, the police have responded to numerous situations involving son and his mental health.”
“Mother challenges the circuit court’s appointment of the GAL for son during the guardianship proceedings. She contends that the circuit court erred by ‘accepting’ father’s petition and ‘automatically appointing’ the GAL ‘without notice to any potential parties.’
“In addition, she asserts that the circuit court erred by ‘permitting’ the GAL to ‘claim statutory authority to waive … son’s legal rights in the proceeding, rather than defend [his] legal presumption to be “regarded as having denied the allegations in the petition”’ in [C]ode [§] 64.2-2007(B). …
“As mother concedes, Code § 64.2-2002 does not require a petitioner to provide notice of the filing of the guardianship petition to the respondent or his relatives.
“Code § 64.2-2003(A) provides that ‘[o]n the filing of every petition for guardianship or conservatorship, the court shall appoint a guardian ad litem to represent the interests of the respondent.’
“The circuit court does not have discretion in appointing a guardian ad litem because the statute directs the circuit court to do so ‘[o]n the filing of every petition.’ … (emphasis added).
“Code § 64.2-2003(A) does not require a circuit court to provide notice to any party before appointing a GAL. Here, the circuit court followed the statutory requirements by appointing the GAL within one week of father filing the guardianship petition.”
Counsel and court appearance
“It appears that mother also challenges the GAL’s recommendations against the appointment of counsel for son and his appearance before the court. First, we note that the GAL advised the circuit court that Code § 64.2-2007 required that son ‘be regarded as having denied the allegations in the [p]etition.’
“In addition, the record reflects that after being appointed, the GAL personally served son with a copy of the petition, exhibits, and order appointing the GAL. The GAL advised son of his rights, including his right to counsel, and the GAL’s role in the proceeding. …
“Although Code § 64.2-2003 requires a circuit court to appoint a guardian ad litem, Code § 64.2-2006 gives the circuit court discretion to appoint counsel ‘upon the filing of the petition or at any time prior to the entry of the order upon request of the respondent or the guardian ad litem, if the court determines that counsel is needed to protect the respondent’s interest.’
“According to the GAL, son initially ‘vacillated’ about whether he wanted a lawyer and agreed to father being appointed as his guardian.
“The GAL discussed the situation further with son that same day, and son agreed to the appointment of father as his guardian; the GAL confirmed son’s consent a few weeks later. Aside from an initial comment, nothing in the record before us suggests that son wanted court-appointed counsel; after speaking with him twice, the GAL confirmed that son agreed to father being his guardian.
“During his investigation, the GAL reviewed the psychological evaluations attached to the petition and interviewed son, his mental health providers, and father.
“The GAL concluded that it ‘could or would be adverse’ to son’s best interests to appear in court because he might ‘become agitated and/or act out’ in the ‘disorienting’ situation.
“Based on the record before us, the circuit court did not err in appointing a GAL for son. … We further find that the circuit court did not abuse its discretion by not appointing counsel for him and not compelling his appearance in court.”
Denial of status hearing
“[M]other filed numerous motions seeking an ‘expedient status hearing’ to ‘address the health and safety’ of both of her children, terminate father’s parental rights to their minor daughter, and ‘consider a relevant protective order’ against father.
“The circuit court found that it did not have jurisdiction over the parties’ daughter in the guardianship proceeding and denied mother’s motion to modify custody.”
Mother “has not cited any legal authority to support her specific arguments. … ‘[U]nsupported assertions of error do not merit appellate consideration.’ …
“Accordingly, we will not consider mother’s arguments regarding her requests for a status hearing.”
Other issues waived
“Mother’s appeal includes eight additional assignments of error[.] …
“In her opening brief, however, she states that she was unable to include ‘arguments specifically related to’ those eight assignments of error ‘in the timeframe’ provided and ‘within page limit requirements.’
“Nevertheless, she asks this Court to ‘accept these assignments of error for this appeal.’ We cannot do so. ‘Absent argument and authority, an assignment of error is deemed to be abandoned.’”
Burns v. Sullivan, Record No. 1566-22-4, Sept. 12, 2023. CAV (unpublished opinion) (per curiam) From the Circuit Court of Fairfax County. (Gardiner) (Kristin Lynn Burns, on brief), pro se. No brief for appellee. VLW 023-7-349, 11 pp.