Motion to strike

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Marina
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Motion to strike

Postby Marina » Thu Jan 01, 2009 8:02 am

http://www.courts.state.va.us/opinions/ ... 631021.txt

...

Winslow subsequently appealed the J&DR court's order to the
circuit court (trial court) for a de novo review. On June 28,
2002 and September 27, 2002, the trial court heard evidence on the
matters. DSS presented several witnesses having knowledge of the
circumstances. At the close of DSS's evidence, Winslow raised a
motion to strike
contending that DSS failed to prove,
by clear and convincing evidence, that not
only is it in the best interest of the
children that the parental rights be
terminated, but also that the mother through
the abuse and neglect place [sic] the
children in serious, substantial threat to
their life, health, and development, and
that it's not reasonably likely that the
conditions which resulted in that neglect or
abuse can be substantially corrected or
eliminated so as to allow the deficiency to
be gone [sic].

DSS responded,...

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LindaJM
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Re: Motion to strike

Postby LindaJM » Thu Apr 08, 2010 12:05 am

Since this was a private decision, it can't be used as legal precedent. See "legal opinions."

I'm copying it here so that we won't lose access to it if the link changes.


COURT OF APPEALS OF VIRGINIA PRIVATE


Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia


CITY OF NEWPORT NEWS
DEPARTMENT OF SOCIAL SERVICES
OPINION BY
v. Record No. 2631-02-1 JUDGE ROBERT J. HUMPHREYS
MAY 20, 2003
JEANETTE WINSLOW


FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge

Allen L. Jackson, Chief Deputy City Attorney
(Christina A. Walsh, Assistant City Attorney,
on brief), for appellant.

Paul H. Wilson for appellee.

Richard H. Lewis, Jr., Guardian ad litem for
the minor children.


The City of Newport News Department of Social Services (DSS)
appeals a decision of the trial court, striking DSS's evidence in
a proceeding to terminate Jeanette Winslow's residual parental
rights to her two youngest children. DSS contends that the trial
court erred in relying on Code  16.1-283(B), as opposed to Code
 16.1-283(C)(2), in support of its determination. In the
alternative, DSS argues that the trial court erred in determining
that it failed to establish, by clear and convincing evidence,
that Winslow's residual parental rights should be terminated
pursuant to Code  16.1-283(C)(2). For the reasons that follow,
we reverse and remand for further proceedings consistent with this
opinion.
I. Background
DSS initially removed Winslow's children from her home in
July of 1998. DSS removed the children because of the extremely
poor condition of Winslow's home and Winslow's apparent inability,
due to a bi-polar disorder and obsessive compulsive personality
disorder, to accept responsibility for the condition of the home
and the resulting danger posed to her children. On December 28,
2001, after several years of working with Winslow and her
children, DSS filed permanency plans with the goal of adoption and
petitions to terminate Winslow's residual parental rights with the
Newport News Juvenile and Domestic Relations District Court (J&DR
court). The petitions and permanency plans alleged:
The parents, without good cause, have been
unwilling or unable with [sic] a reasonable
period not to exceed twelve month [sic] to
remedy substantially the conditions which
led to the child's foster care placement,
notwithstanding the reasonable and
appropriate efforts of social, medical,
mental health or other rehabilitative
agencies to such end. (Virginia Code
Section 16.1-283[C](2) [sic]

On March 4 and 5, 2002, the J&DR court heard evidence on the
petitions. On April 24, 2002, the court approved the goal of
adoption and terminated Winslow's parental rights to the children
finding that, pursuant to "Code  16.1-283(C)," Winslow:
without good cause, has been unwilling or
unable within a reasonable period of time
not to exceed twelve months from the date
the child was placed in foster care to
remedy substantially the conditions which
led to or required continuation of the
child's foster placement, notwithstanding
the reasonable and appropriate efforts of
social, medical, mental health or
rehabilitative agencies to such end.

Winslow subsequently appealed the J&DR court's order to the
circuit court (trial court) for a de novo review. On June 28,
2002 and September 27, 2002, the trial court heard evidence on the
matters. DSS presented several witnesses having knowledge of the
circumstances. At the close of DSS's evidence, Winslow raised a
motion to strike contending that DSS failed to prove,
by clear and convincing evidence, that not
only is it in the best interest of the
children that the parental rights be
terminated, but also that the mother through
the abuse and neglect place [sic] the
children in serious, substantial threat to
their life, health, and development, and
that it's not reasonably likely that the
conditions which resulted in that neglect or
abuse can be substantially corrected or
eliminated so as to allow the deficiency to
be gone [sic].

DSS responded, stating that:
the Code allows the City to proceed on any
of the sections in 16.1-283, and the City
has chosen to proceed on Section C-2,
wherein, the mother has without good cause
been unable within a reasonable period of
time not to exceed 12 months from the date
the children came into care, to remedy
substantial [sic] any conditions that places
the children in foster care placement
despite the efforts of Newport News
Department of Social Services.

After hearing the arguments, the trial court granted the
motion, finding:
a child is not entitled to the best mother
on earth. A child is entitled to their
birth parent unless it causes irremediable
harm to them.

There's no doubt at the time [the children]
were removed that the department of social
services was absolutely correct. I don't
think the mother would dispute that knowing
what she knows now, that there was a serious
threat to their life, health or development
living in that milieu in which they lived.
But the question before the Court today is
[sic] not reasonably likely that those
conditions which resulted in their neglect
and abuse at that time can be substantially
corrected or eliminated [sic]. And, see, we
also when these cases go on like that, we
also lose sight of the fact that it's the
original abuse and neglect that we're
concerned with, not what's happened from
intervening causes such as sexual abuse or
other placements or what's happened at other
places. She can't be expected - she's never
been expected to remedy those situations.
She's always been asked to remedy those
situations that were there present when she
lost the children, and I can't see by clear
and convincing evidence that it's not
reasonably likely that those conditions
could be substantially corrected. I'm going
to grant the motion.
(Emphases added).

The trial court issued its written order,
nunc pro tunc on October 24, 2002, which stated as follows, in
relevant part:
This matter came to be heard on September
27, 2002. The parties having last appeared
before the Court on June 28, 2002 for
Jeanette Winslow's appeal of the Newport
News Juvenile and Domestic Relations
District Court order, dated April 18, 2002,
terminating her residual parental rights to
the above-named children, pursuant to
 16.1-283(C)(2) of the Code of Virginia.
* * * * * * *
Upon consideration, the Court FINDS the
evidence insufficient as a matter of law to
sustain the termination of parental rights
petition filed by the Newport News
Department of Social Services. WHEREFORE,
the Court GRANTS the motion to strike the
evidence and the petition to terminate the
residual parental rights of Jeanette Winslow
is HEREBY dismissed and remanded to the
Newport News Juvenile and Domestic Relations
District Court.


II. Analysis

On appeal, DSS contends the trial court erred in granting the
motion to strike, because in so doing it failed to "apply the
standard contained in  16.1-283(C)(2)" and instead "improperly
applied the standard contained in  16.1-283(B)." In the
alternative, DSS contends the trial court erred in finding it
failed to establish, by clear and convincing evidence, that
Winslow's residual parental rights should be terminated pursuant
to Code  16.1-283(C).

We first note that "[a]bsent clear evidence to the contrary
in the record, the judgment of a trial court comes to us on
appeal with a presumption that the law was correctly applied to
the facts." Yarborough v. Commonwealth, 217 Va. 971, 978, 234
S.E.2d 286, 291 (1977). Furthermore, the Supreme Court of
Virginia has consistently "stated that 'it is the firmly
established law of this Commonwealth that a trial court speaks
only through its written orders.'" Walton v. Commonwealth, 256
Va. 85, 94, 501 S.E.2d 134, 140 (1998) (quoting Davis v. Mullins,
251 Va. 141, 148, 466 S.E.2d 90, 94 (1996)). Appellate courts
thus "presume" that the trial judge's order "accurately reflects
what transpired" during the proceedings below. Stamper v.
Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979).
Code  16.1-283 establishes the procedures and grounds under
which a court may order the termination of residual parental
rights. The statute provides as follows, in relevant part:
B. The residual parental rights of a parent
or parents of a child found by the court to
be neglected or abused and placed in foster
care as a result of (i) court commitment;
(ii) an entrustment agreement entered into
by the parent or parents; or (iii) other
voluntary relinquishment by the parent or
parents may be terminated if the court
finds, based upon clear and convincing
evidence, that it is in the best interests
of the child and that:
1. The neglect or abuse suffered by such
child presented a serious and substantial
threat to his life, health or development;
and
2. It is not reasonably likely that the
conditions which resulted in such neglect or
abuse can be substantially corrected or
eliminated so as to allow the child's safe
return to his parent or parents within a
reasonable period of time. . . .
* * * * * * *
C. The residual parental rights of a parent
or parents of a child placed in foster care
as a result of court commitment, an
entrustment agreement entered into by the
parent or parents or other voluntary
relinquishment by the parent or parents may
be terminated if the court finds, based upon
clear and convincing evidence, that it is in
the best interests of the child and that:
* * * * * * *
2. The parent or parents, without good
cause, have been unwilling or unable within
a reasonable period of time not to exceed
twelve months from the date the child was
placed in foster care to remedy
substantially the conditions which led to or
required continuation of the child's foster
care placement, notwithstanding the
reasonable and appropriate efforts of
social, medical, mental health or other
rehabilitative agencies to such end. . . .
Code  16.1-283(B) and (C)(2) (emphases added).

Both subsection (B) and subsection (C)(2) of Code  16.1-283
address substantially similar grounds for the termination of
parental rights. See Richmond Dept. of Soc. Servs. v. L.P., 35
Va. App. 573, 583, 546 S.E.2d 749, 754 (2001). However, Code
 16.1-283(B) speaks prospectively, as to the ability of the
parent or parents to "substantially" remedy, "within a reasonable
period of time," the conditions which led to the foster care
placement. Conversely, Code  16.1-283(C)(2) is retrospective in
nature, focusing on whether the parent or parents "have been
[]willing or []able within a reasonable period of time not to
exceed twelve months," to "remedy substantially" the conditions
which led to the foster care placement.
Despite these distinctions, we have previously upheld
terminations under both subsections of Code  16.1-283, as well as
under one or either of the individual subsections. See Ferguson
v. Stafford County Dep't of Soc. Serv., 14 Va. App. 333, 340, 417
S.E.2d 1, 5 (1992) (upholding the trial court's decision to
terminate residual parental rights pursuant to Code  16.1-283(B)
and (C)(1)); Lowe v. Dept. of Public Welfare, 231 Va. 277, 281-82,
343 S.E.2d 70, 73 (1986) (upholding termination of residual
parental rights pursuant to Code  16.1-283(B)(2)); and Lecky v.
Reed, 20 Va. App. 306, 313-14, 456 S.E.2d 538, 541 (1995)
(ordering termination of residual parental rights pursuant to Code
 16.1-283(C)). Furthermore, each subsection, although similar in
nature, is written as a distinct and grammatically independent
provision of the statute. Accordingly, it is clear that Code
 16.1-283(B) and (C)(2) set forth individual bases upon which a
petitioner may seek to terminate residual parental rights.
Here, the record clearly reflects that DSS sought termination
of Winslow's residual parental rights based upon Code
 16.1-283(C)(2), not  16.1-283(B). In fact, DSS pointed the
trial court to this subsection of the statute in its response to
Winslow's motion to strike. Moreover, both foster care plans,
filed in conjunction with the termination petitions, state
specifically that they are based upon Code  16.1-283(C).
Indeed, the juvenile and domestic relations district court relied
upon Code  16.1-283(C), as reflected in its written orders of
April 24, 2002, in terminating Winslow's residual parental rights
after the district court proceedings.
Nevertheless, in support of her motion to strike, Winslow
argued that DSS failed to demonstrate that Winslow, "through the
abuse and neglect place [sic] the children in serious, substantial
threat to their life, health, and development, and that it's not
reasonably likely that the conditions which resulted in that
neglect or abuse can be substantially corrected or eliminated so
as to allow the deficiency to be gone [sic]." Winslow's argument
in this regard clearly tracked the bases of proof necessary to
establish termination pursuant to Code  16.1-283(B), as opposed
to those necessary to establish termination pursuant to Code
 16.1-283(C)(2).
In response, the trial court found "I don't think [Winslow]
would dispute that knowing what she knows now, that there was a
serious threat to their life, health or development living in that
milieu in which they lived," and "I can't see by clear and
convincing evidence that it's not reasonably likely that those
conditions could be substantially corrected." The trial court's
written order notes that the juvenile and domestic relations
district court granted the termination pursuant to Code
 16.1-283(C)(2), but merely states that, after hearing the matter
de novo, it found the "evidence insufficient as a matter of law to
sustain the petition filed by" DSS.
Based upon the trial court's statements during the hearing,
and because we discern no guidance from its broadly written final
order, we find that the trial court improperly applied the law to
the facts in this case. The trial court first made a factual
finding concerning the initial threat to the "life, health, [and]
development" of the children and then made a prospective
determination, finding that it was "not reasonably likely that"
Winslow could substantially remedy those conditions. As set forth
above, these criteria are pertinent to a finding pursuant to Code
 16.1-283(B), not to a finding pursuant to Code  16.1-283(C)(2).
Furthermore, there is no ambiguity created between the trial
court's statements in the transcript and its written order. See
Commonwealth v. Williams, 262 Va. 661, 668, 553 S.E.2d 760, 763
(2001) (noting that the maxim that "a court speaks only through
its written orders" "generally refers to instances when some
conflict or ambiguity exists between the language expressed in a
transcript and a court's order, when an order fails to reflect an
action allegedly taken by one or more parties, or when a court's
order fails to reflect compliance with a jurisdictional
requirement"). Indeed, the written order fails to state which
subsection the trial court relied upon to sustain its finding.
Accordingly, we reverse the decision of the trial court,
granting Winslow's motion to strike under the guise of Code
 16.1-283(B). We further remand this matter for additional
proceedings consistent with this opinion.
Reversed and remanded.
On April 10, 2003, we granted Winslow's motion for leave
to file a "late reply brief" and allowed her counsel to present
oral argument. During her oral argument, Winslow withdrew her
motion to dismiss, filed with this Court on April 4, 2003.
The petitions also sought to terminate the residual
parental rights of each of the children's fathers. There is no
issue in the present appeal with regard to the termination of
the fathers' rights. Therefore, we do not address these matters
further.
We note that although the Appendix on appeal contains a
copy of both foster care plans (dated December 28, 2001), only
one plan appears in the circuit court's record.
Because we have found that the trial court improperly
relied upon Code  16.1-283(B) in reaching its determination, we
do not reach DSS's alternative argument that the trial court
erred in failing to find DSS established the necessary elements
of proof under Code  16.1-283(C)(2).
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Marina
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Re: Motion to strike

Postby Marina » Thu Apr 08, 2010 4:01 pm

.

In Virginia, I think they classify legal opinions as "for publication" and "not for publication."



The regular term is memorandum, as shown on this link.

http://en.wikipedia.org/wiki/Legal_opinion



I have never seen the term "memorandum" used in Va. The first time I saw it was for the FLDS cases in Texas.

If the above case is "not for publication," then evidently that means there is nothing unusual or new about the issues. I am judging that "motion to strike" is a common- everyday thing.

.

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LindaJM
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Re: Motion to strike

Postby LindaJM » Thu Apr 08, 2010 7:33 pm

I think you're right about that. "Not for publication" is probably the same as "memorandum." I saw memorandums listed on the 9th Circuit Court of Appeals website separately from the published opinions.

They can't be used for legal precedent but are interesting to read. I like to try to figure out things that worked for people, and things that didn't.
Sample Document Library

Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...

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KDus
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Re: Motion to strike

Postby KDus » Sun Nov 21, 2010 9:50 pm

Appeals cases have been a really good source of info. It shows me where to lean in my filings.
I use google-scholar-legal opinions and journals
Once I find the right key words,I can click on relevant cites and find useful authorities.


Edit- In looking at this particular decision, it has given me some direction and language applicable to my case. :D
Last edited by KDus on Sun Dec 12, 2010 1:22 pm, edited 1 time in total.

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LindaJM
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Re: Motion to strike

Postby LindaJM » Mon Nov 22, 2010 1:19 pm

Great research page: Google Scholar ... thanks for telling us about that one. (I didn't know it was there!)
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Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...


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