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Date: 09-10-2024
Case Style:
Lindsey Nicole Perkins v. Rebecca Lynn (Hicks) Howington, et al.
Case Number: 1239-23-3
Judge: JackS. Hurley, Jr.
Court: Circuit Court, Tazwell County, Virginia
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Tazwell, Virginia adoption lawyers represented the parties.
In 2019, mother and father shared joint legal custody over their biological child, with mother having primary physical custody. On February 14, 2020, father married stepmother. In March, the Tazewell County Juvenile and Domestic Relations District Court ("J&DR district court") granted father temporary legal and physical custody. The child has resided with father and stepmother since. The J&DR district court also entered a preliminary child protective order against mother, limiting her to supervised visitation at the discretion of the Tazewell County Department of Social Services ("the Department"). It ordered mother to submit to random drug screenings and to refrain from alcohol and illegal drug use. The court's order pointed to mother's failure to "cooperate with [the Department's] investigation after reasonable attempts by [the Department]." Two months later, on May 4, 2020, the J&DR district court adjudicated the child as abused or neglected due to mother's substance abuse and awarded father legal and physical custody. After a June 15 hearing, the court entered a child protective order against mother, establishing a supervised visitation schedule for mother and requiring her to cooperate with the Department. The court also mandated that mother enroll with Clinch Valley Community Action ("CVCA") for random drug screenings.
On July 14, 2020, because of mother's non-compliance with the previous protective order's required drug screening, the J&DR district court entered a new child protective order, prohibiting mother from having any contact with the child until further order of the court. Mother's last visit with the child before the new order was on July 3, 2020. One month later, the court removed the matter from the docket because no motions for review, modification, or dissolution were filed.
In October 2020, mother moved to amend the protective order and requested visitation; the motion was scheduled for a hearing on January 5, 2021. The matter was continued because mother was required to file a bill of particulars with the court by February 19, 2021. Mother failed to file the bill of particulars. On March 16, 2021, CVCA Community Safety Officer Shonda Wilson filed a letter with the J&DR district court. In the letter, she reported that, despite several attempts, she was unable to make contact with mother from October 2, 2020 until January 29, 2021-a total of three months and 27 days-for her court-ordered drug screenings. Wilson was only able to successfully speak to mother after contacting mother's probation officer. On March 18, 2021, the J&DR district court ordered mother to submit to random drug screens, appointed a guardian ad litem ("GAL") for the child, and ordered mother to cooperate in signing releases for the Department and the GAL. The J&DR district court continued the matter to April 15, 2021, "for the sole purpose of reviewing the request of mother to begin some type of visitation with the child."
Meanwhile, on April 13, 2021, stepmother and father petitioned to adopt the child in circuit court. They argued that mother's consent to the adoption was not required under Code § 63.2-1202(H) because of her lack of contact with the child for six months prior to their petition without just cause. And, in the alternative, they asserted that mother's consent to the adoption was being withheld contrary to the best interests of the child under Code § 63.2-1203.
On April 27, 2021, the J&DR district court dissolved the previous child protective order and entered a new one, permitting mother to have supervised contact with the child. Mother saw the child last on March 13, 2022. On March 30, 2022, when mother failed to appear for a hearing, the J&DR district court entered a new protective order, which prohibited mother from having any contact with the child until further order of the court.
After several continuances, the parties appeared before the circuit court to be heard on the petition for adoption on June 1, 2023.[3] Mother argued that due to circumstances beyond her control, such as her contracting COVID and her attorney's obligations during the General Assembly session, she was unable to have the hearing on her motion to amend during the requisite time frame. After hearing the evidence and arguments, the circuit court found that mother had not contacted the child for more than six months before the filing of the petition for adoption without just cause, so her consent was not required under Code § 63.2-1202(H). The circuit court ruled that the adoption was in the best interest of the child and granted the adoption. In its ruling from the bench, the court noted that mother's own actions led to both the protective order and her total unreachability for three and a half months. The court referenced mother's probation record,[4] which was not entered into evidence, on multiple occasions when discussing mother's unreachability from October 8 to January 29, 2021. The court also found that, although her counsel was excused because of his legislative obligations from hearings during that time, mother's COVID did not "have anything to do with [the] delay" and rather what concerned the court was the lack of contact with mother between October to January 2021.
Perkins v. Howington, 1239-23-3 (Va. App. Sep 10, 2024)
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: