COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

PAMELA J. HAWKS, A/K/A PAMELA J. WALKER 

 OPINION BY 

v. Record No. 2633-96-2 JUDGE LARRY G. ELDER 

 JULY 15, 1997 

DINWIDDIE DEPARTMENT OF SOCIAL SERVICES 

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY 

James F. D'Alton, Jr., Judge 

 Linwood T. Wells, III, for appellant. 

 James H. Ritchie, Jr., for appellee. 

 Pamela J. Hawks (mother) appeals the trial court's order 

terminating her residual legal rights to remain the parent of her 

son, James Leroy Walker (child). She contends that the trial 

court erred when it concluded that child had not reached an "age 

of discretion" and did not allow her to secure his presence in 

court so that he could express his opinion on the termination 

proceeding. For the reasons that follow, we reverse and remand. 

 I. 

 FACTS 

 On July 26, 1989, after being incarcerated, mother signed an 

entrustment agreement granting custody of child to the Dinwiddie 

County Department of Social Services (department). Mother was 

released from incarceration in 1992. After several failed 

attempts to permanently reunite mother and child, in January, 

1996, the department filed a petition seeking the termination of 

mother's residual parental rights. A juvenile and domestic 
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relations court terminated mother's residual parental rights in 

June, 1996, and mother appealed to the circuit court (trial 

court). 

 The trial court held a hearing on the department's petition 

on September 17, 1996. The child was not present at the hearing, 

and mother moved for a continuance so that he could be present to 

testify. Mother argued that child had reached an "age of 

discretion" and that under Code § 16.1-283(E) the trial court 

should grant him an opportunity to object to the termination 

proceeding. 

 Before deciding mother's motion, the trial court heard 

evidence on the issue of whether child had attained an "age of 

discretion." Dorthea Townes, a senior social worker with the 

department, testified that she had been involved with mother's 

and child's case since its inception. She testified that the 

child is eleven and one-half years of age and that he is smart, 

bright, "very good mannered," and "does well [talking] with 

adults." She testified that child "thinks more like an 11-yearold, not like an older child." She testified that child had 

problems completing assignments in school during the previous 

year and had been held back to repeat the fifth grade. She also 

testified that child has been diagnosed with hyperactivity and 

depression and currently received therapy and medication for 

these conditions. She testified that she had met with child 

approximately four times since the beginning of the termination 
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proceeding and had explained to him "why we were coming to court 

and the decisions that the judge makes." She testified that 

child was capable of explaining to the trial court his feelings 

about his mother. 

 Michelle L. Ferris, child's guardian ad litem, also 

testified on the issue of whether child had reached the "age of 

discretion." She testified that she met with child several times 

during the proceedings and that their last meeting took place six 

months before the termination hearing. She testified: 

 We discussed all of the proceedings. He will 

tell you how he feels about his mother and, 

you know, there is no doubt that he will tell 

you that he loves her. He will tell that to 

Mrs. Townes. He will tell that to anybody. 

He also will tell you, though, that he 

understands she cannot take care of him. And 

I think in making that statement that shows a 

level of maturity on his part to recognize 

that he doesn't blame his mother for that, he 

just accepts it. 

She also testified that child appears to be "normal" for his age. 

 She concurred with the opinion of Amy R. Gilbert, child's 

psychological counselor, that child needs a "nurturing stable 

structuring environment" to cope with his problems in school. 

 A report written by Ms. Gilbert was also made part of the 

record. In the report, Ms. Gilbert stated that child suffered 

from depression "related to his relationship" with mother. She 

wrote that child exhibited "attention seeking" behavior that 

stemmed from his lack of nurturing in his early years. At his 

foster parents' home, child had "sneaked" food from the kitchen 
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and hidden it under his pillow and had "taken money and toys" 

from his foster parents and other children. She opined that 

child will need continued psychiatric treatment "to deal with his 

depression related to these abandonment issues." 

 At the conclusion of the testimony, the trial court 

concluded that child had not reached an "age of discretion" and 

denied mother's motion for a continuance to secure child's 

presence. It reasoned that: 

 I think [Code § 16.1-283(E)] uses the age of 

14 for a reason and I think in light of the 

history of this child, 11, who is 

experiencing some psychological, emotional 

problems, is not on grade at school, has not 

exhibited any tendencies to make him older 

than his years, I think that would all have 

to be taken into consideration in determining 

whether he was at the age of discretion 

. . . . I think that he at this age -- it 

would have to be something here to indicate 

that he is extraordinary and older than most 

children at 11 and able to comprehend and 

appreciate the circumstances. I do not find 

that from the record. 

(Emphasis added). The trial court proceeded to hear evidence and 

ordered the termination of mother's residual parental rights. 

 II. 

AGE OF DISCRETION 

 Mother contends that the trial court erred when it refused 

to allow her to secure child's presence in court so that he could 

state his opinion regarding the termination proceeding. 

Specifically, she argues that the trial court erred when it 
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concluded that child had not reached an "age of discretion" that 

would have empowered him to block the termination hearing under 

Code § 16.1-283(E). We agree. 

 Code § 16.1-283 establishes the procedures and grounds 

pursuant to which a court may order the termination of residual 

parental rights. The section contains a "child preference 

clause" that limits the power of a court to terminate parental 

rights in certain circumstances. Code § 16.1-283(E) states: 

 Notwithstanding any other provisions of this 

section, residual parental rights shall not 

be terminated if it is established that the 

child, if he is fourteen years of age or 

older or otherwise of an age of discretion as 

determined by the court, objects to such 

termination. 

(Emphasis added). A child who falls under one of the classes of 

children described in the statute "must be afforded a meaningful 

opportunity to object" to the proceeding to terminate the 

residual parental rights of his or her parent. Deahl v. 

Winchester Dept. of Social Services, 224 Va. 664, 676, 299 S.E.2d 

863, 869 (1983). 

 In cases in which the testimony of a child younger than 

fourteen is sought, the determination of whether or not the child 

has reached an "age of discretion" is committed to the sound 

discretion of the trial court. See id. at 676, 299 S.E.2d at 

869. However, if the evidence proves that a child is 

"sufficiently mature to have intelligent views and wishes on the 

subject" of the termination proceeding, then the trial court 
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should conclude that a child who is younger than fourteen has 

reached the "age of discretion." Id. at 675-76, 299 S.E.2d at 

869. When determining whether a child is mature enough to have 

intelligent views and wishes on the subject, the trial court 

should consider all of the circumstances, including the 

"capacity, information, intelligence, and judgment of the child." 

Coffee v. Black, 82 Va. 567, 569-70 (1886). The trial court's 

determination will be reversed on appeal only for an abuse of 

discretion. 

 When reviewing the trial court's termination of parental 

rights on appeal, we view the evidence in the light most 

favorable to the prevailing party below. See Logan v. Fairfax 

County Dept. of Human Development, 13 Va. App. 123, 128, 409 

S.E.2d 460, 463 (1991). Where, as here, evidence is heard ore 

tenus, we will not disturb the trial court's judgment unless 

plainly wrong or without evidence to support it. See id.; Lowe 

v. Dept. of Public Welfare, 231 Va. 277, 282, 343 S.E.2d 70, 73 

(1986). 

 We hold that the trial court abused its discretion when it 

concluded that child had not reached an "age of discretion." The 

trial court based its conclusion on the finding that no evidence 

in the record indicated that child was "able to comprehend and 

appreciate the circumstances" of the termination proceeding. The 

evidence in the record was insufficient to support this finding. 

 The only evidence in the record regarding child's knowledge 
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and understanding of the termination proceeding indicates that he 

was aware of its existence and understood its ramifications. Ms. 

Townes testified that child was aware of both the juvenile and 

domestic relations court's decision terminating mother's parental 

rights and mother's decision to appeal to the trial court. She 

testified that she talked with child on four separate occasions 

about the termination proceeding and that she explained to him 

"why we were coming to court and the decisions that the judge 

makes." She also testified that child could explain to the trial 

judge his feelings about his mother. Ms. Ferris testified that 

she "discussed all of the proceedings" with child during her last 

meeting with him and that the two had a "good meeting." 

Moreover, child neither appeared before nor met with the trial 

judge to discuss his understanding of the proceeding, and no 

evidence indicates that child, despite his psychological and 

emotional problems, was unable to comprehend the information 

about the proceeding conveyed to him by Ms. Townes and Ms. 

Ferris. Because the trial court based its conclusion that child 

had not reached an age of discretion on a finding not supported 

by the evidence, its conclusion was an abuse of discretion. 

 In addition, the trial court's legal analysis of the "age of 

discretion" issue is somewhat confusing. Prior to hearing the 

evidence on this issue, the trial court correctly recited the 

test for determining whether a child has reached the "age of 

discretion" set forth in Deahl. See 224 Va. at 675-76, 299 
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S.E.2d at 869 (stating that a child is of the "age of discretion" 

when he or she is "sufficiently mature to have intelligent views 

and wishes on the subject"). However, in its analysis of the 

evidence, the trial court appeared to indicate that Code 

§ 16.1-283(E) required it to find that child's maturity 

level equaled or exceeded that of a fourteen-year-old. The trial 

court stated that "[Code § 16.1-283(E)] uses the age of 14 for a 

reason" and that the test for determining whether a child under 

14 had reached an age of discretion required "something [in the 

record] . . . to indicate that [the child] is extraordinary and 

older than most children" of his age. 

 However, Code § 16.1-283(E) does not include such a 

requirement. Indeed, the statute, as construed in Deahl, 

prohibits a trial court from basing its determination of whether 

a child has reached the "age of discretion" solely on 

presumptions regarding the child's age. Instead, the focus of 

the inquiry is whether the child, regardless of how old he or she 

may be, is mature enough to intelligently consider the 

circumstances and ramifications of the termination proceeding. 

The Deahl test is consistent with the general consensus among 

child development theorists and researchers that the 

decision-making capabilities of children develop gradually until 

they reach an adult level in their mid-teens but that the pace of 

development is dynamic and varies from child to child based on 

experience. See Wallace J. Mlyniec, A Judge's Ethical Dilemma: 
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Assessing a Child's Capacity to Choose, 64 Fordham L. Rev. 1873, 

1878-85 (1996) (summarizing current theory and research on child 

development). Thus, Code § 16.1-283(E) requires an assessment of 

the particular child's circumstances, including his or her 

capacity, information, intelligence, and judgment, in order to 

determine whether that child possesses sufficient maturity to 

have intelligent views and wishes on the termination of his or 

her parent's parental rights. See Deahl, 224 Va. at 675-76, 299 

S.E.2d at 869; Coffee, 82 Va. at 569-70. 

 For the foregoing reasons we reverse the order of the trial 

court ordering the termination of mother's residual parental 

rights and remand for proceedings consistent with this opinion. 

Reversed and remanded.