COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Fran k and Clements

LAURIE ARSENAULT MEMORANDUM OPINION * v. Record No. 26 09-00-1 PER CURIAM MAY 29, 2001 ISLE OF WI GHT COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY Westbrook J. Parker, Judge (L. Wayne Farm er; Barlow & Ridd ick, P.C., on briefs), for appellant. Appellant submitting on briefs. (Richard L. Franci s; Inga E. Francis; Francis & Francis, P.C., on brief), for appellee. Appellee submitting on brief.

Laurie Arsenault, appellant, appeals the de cision of the trial court denyin g her motion to rehear the term ination of her residual parental righ ts to her daug hter. Finding that the trial court properly terminat ed appellant's residual parent al rights and did not abuse its discretion in de nying rehear ing, we affirm the trial court's decision.
MOTION TO DISMISS The Department of Social Services has moved to dismiss the appeal on the gr ound that the statement of fa cts, which is indispensable to a decision on ap peal, was not file d in accordance

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.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 Departme nt of Social Servic es and the guardian ad litem endorsed the proposed statement of facts as being accurate and noted no objection to any of the circumst ances surrou nding its filing. The trial ju dge certified the statement, noting no objections. The appe llee thereby waived any objectio n to the timing and manner of the statemen t's filing.
BACKGROUND On March 14, 2000 , the juvenile and domestic relations district court (J&DR court) terminated ap pellant's residual parental rights to her daughter pursuant to Code § 16.1-283(C). Appellant appeal ed that decision to the trial cour t. She signed the notice of ap peal, which stated that her trial date would be scheduled on May 8, 20 00 at 9:00 a.m. Th is notice contained a warning, stating: "I f you fail to appear, you are subject to a conviction and judgment in your absence bein g entered ag ainst your case in the Ci rcuit Court." On May 1, 2000, th e trial court entered an order setting appellant's tria l for Septembe r 22, 2000 at 9:00 a.m. This order stated that counsel for the parties had been cont acted and had agreed to that date. On September 22, 2000, appellant failed to ap pear. Her counsel, who had also been he r attorney at the J&DR court proceeding, ap peared. He repres ented to the tria l court that he

- 2 -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, th e child's foster mother , and Sharon Banks, a social worker for the case, testified that appellant had been in contact with them subsequent to th e hearing in J&DR court. Both women testified th at 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 Alphin s, and that she was not going to appear further in court. The child' s guardian ad litem and the chil d's father testified they believed it was in the best interests of the child that appellant's resi dual parental rights be terminated. The trial cour t dismissed appe llant's appeal and terminated her residual parental ri ghts to he r daughter. On the afternoon of September 22, 2000, appellan t's attorney notified the trial cour t that appellant intend ed to file a motion to rehear the matter. On October 25 , 2000, the tria l court heard the motion to re hear. Appellant testified that she thought the trial court hearin g was scheduled fo r 2:00 p.m. on September 22, 2000 because all prior hearings had been at 2:00 p.m. She also stated that on Septem ber 22, 2000, so metime between 12:00 p.m. and 1:00 p.m., she teleph oned the trial court clerk's office to confirm the 2:00 p.m. hearing time and was then advised that the

- 3 -hearing had already taken place. She immediatel y contacted her attorney and advised hi m that she wanted to pursue the appeal. Appellant also testified that she received a notice stating the hearing was sc heduled for 2:00 p.m. However, she could not produce that notice. She stated that she ha d received no notice from her counsel concer ning the trial, but ad mitted she had moved twice, and had not no tified her counsel of the changes in her address. She ad mitted that she told Alphin and Banks that she might not pursue her appeal, bu t stated that she made those statements during "dif ficult times." Appe llant asserted that, subsequent to th ose conversati ons, she had resolv ed several issues and now wished to "vigorously purs ue her appeal and protect her parental rights." The trial cour t dismissed appe llant's appeal, affirmed the termination of her resi dual parental rights, and denied the motion for a rehearing. Appellant appeal s 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.

- 4 -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.

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