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RECORD NO. 1389-96-3
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M. ISMAIL SLOAN,
Appellant,
v. Circuit Court No. 9216
CHARLES E. ROBERTS and SHELBY H. ROBERTS
Respondents.
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OPENING BRIEF OF APPELLANT
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M. ISMAIL SLOAN
2420 ATHERTON ST., SUITE 6
BERKELEY CA 94704
Tel: (718) 638-5153
FAX: (718) 857-8613
E-Mail Address: Sloan@ishipress.com
TABLE OF CONTENTS
ASSIGNMENTS OF ERROR 3
NATURE OF THE CASE AND SUMMARY OF THE PROCEEDINGS IN THE TRIAL COURT 4
QUESTIONS PRESENTED 7
THE COURTS OF VIRGINIA HAVE NO JURISDICTION OVER THIS ENTIRE MATTER 8
STATEMENT OF FACTS 8
CONSTITUTIONAL AND PRECEDENTAL IMPORTANCE OF THIS CASE 10
ARGUMENT 12
CONCLUSION 18
CERTIFICATE 19
TABLE OF CASES
Alison D. v. Virginia M, 77 N.Y.2d 651, 586 N.Y.S.2d 586 (Ct.App. 1991) 12
Augusta County Department of Social Services v. Unnamed Mother, 3 Va. App. 40, 348 S.E.2d 26 (1986) 16
Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824, 827 (1986) 13
Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980) 14
Bottoms v. Bottoms, No. 1930-93-2 (Court of Appeals, June 21, 1994) 10
Brown v. Brown, 237 S.E.2d 89 (Va. 1977) 13, 14, 15
Bryant v. Commonwealth, 198 Va. 148, 93 S.E.2d 130 (1956) 18
Buchanan v. Buchanan, 170 Va. 458, 197 S.E.2d 426 (1938) 18
Casey v. Hopewell Department of Social Services, 14 Va. App. 222 (1992) 11
DeBoer by Darrow v. DeBoer, 114 S.Ct. 1 (1993) 10
Doe v. Doe, 16 Mass. App. 499, 452 N.E.2d 293, 296 (1983) 14
Ford v. Ford, 419 S.E.2d 415, 417 (Va. App. 1992) 15
Fort v. Fort, 425 N.E.2d 754 (Mass. App. 1981) 14
Hamstead v. Dostert, 313 S.E.2d 409 (W.Va. 1984). 18
In the Interest of B. G. C., 496 NW2d 239 (Iowa 1992) 12
Janet S. M. M. v. Commissioner, 601 N.Y.S. 2d 781 (1993) 12
Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954) 12
Kogon v. Ulerick, 405 S.E. 2d 441 (1991) 18
Lowe v. Grasty, 203 Va. 15, 122 S.E.2d 867 (1961) 7, 17
Martin v. Pittsylvania County Department of Social Services, 3 Va. App. 15, 348 S.E.2d 13, 18 (1986) 7, 17
New York RR Company v. Commonwealth, 196 Va 428, 83 S.E.2d 782 (1954) 18
Norfolk Division of Social Services v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986) 16
Palmore v. Sidoti, 466 U.S. 429 (1984) 14
Penson v. Ohio, 488 U.S. 75 (1988) 10
People v. Brown, 49 Mich. 358, 212 N.E.2d 55, 59 (1973) 14
Rader v. Montgomery County Department of Social Services, 5 Va. App. 523, 526, 365 S.E.2d 234, 236 (1988) 7, 17
Mr. and Mrs. Charles Roberts v. Ismail Sloan, No. 20991/1986 (Sup. Ct. N.Y.) 12
Rogers v. Platt, 245 Cal. Rptr. 532, 199 Cal. App. 3d 1213 (1988) 12
Rogers v. Platt, 641 F. Supp. 381 (D.D.C. 1986) 12
Santosky v. Kramer, 455 U.S. 745, 769 (1982) 17
Sloan v. Awadallah and Honzagool, No. 17815/1981 (Bronx Supreme Court) 4, 12
Sloan v. Commonwealth, No. 93-0934-3 10
Sloan v. DSS, 0770-91-3 6
Sloan v. Virginia, No. 95-8909 10
Smith v. Organization of Foster Families, 431 U.S. 816, 842 (1977) 17
Stanley v. Fairfax County Department of Social Services, 395 SE2d 199, 207, 10 Va. App. 596 (1990) 6, 17
Stanley v. Illinois, 405 U.S. 645 (1972) 10, 17
Stroman v. Williams, 353 S.E.2d 704 (S.C. 1987) 14
Unknown Father v. Lynchburg Division of Social Services, 15 Va. App. 110 (1992) 16
Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962) 12
Walker v. Fagg, 11 Va. App. 581, 400 S.E.2d 208 (1991) 15
Wilkerson v. Wilkerson, 214 Va. 395, 397-8, 200 S.E. 2d 581, 583 (1973) 13
Wright v. Arlington County Department of Social Services, 9 Va App. 441, 388 S.E.2d 477 (1990) 17
International Child Abduction Remedies Act, 42 USC 11601 6
Uniform Child Custody Act 6
Virginia Code Ann. Section 31-15 (Michie 1992); 20-107.2 (Michie Supp. 1993) 12
Hague Convention 6
ASSIGNMENTS OF ERROR
1. The appellant assigns error in that the Circuit Court did not require the Clerk of the Amherst County J & D Court to transmit the entire record of this case to that court. Instead, a brief skeletal record was all that was transmitted.
2. The appellant assigns error in that the courts of Virginia have never had jurisdiction over this case. The child who is the subject of this case was not born in Virginia and came to be physically present in Virginia as the result of being kidnapped by Charles and Shelby Roberts, the respondents here. Charles and Shelby Roberts are in no way parents, relatives or family members of this child. As a result, these proceedings should have been dismissed and the child returned to the natural custody of her parents.
3. The Appellant assigns error in that no final order determining custody of appellant's infant child was previously made by the Amherst County Circuit Court. Rather, the Amherst County Circuit Court did, in November of 1993, enter a final order concerning the custody of said child, and referred all matters of custody, visitation, etc. to the Amherst County Juvenile and Domestic Relations Court.
4. The trial court erred by granting custody to the non-biological parents to the exclusion of the natural father, after the non-biological parents abducted the infant in question from the natural father - the appellant herein - from his residence in the United Arab Emirates. No evidence reflected unfitness of the natural father relative to his ability to parent.
VIRGINIA: IN THE COURT OF APPEALS OF VIRGINIA
M. ISMAIL SLOAN,
Appellant, Record No. 1389-96-3
Circuit Court No. 9216
v.
CHARLES E. ROBERTS AND SHELBY H. ROBERTS
Respondents.
OPENING BRIEF OF APPELLANT
NATURE OF THE CASE AND SUMMARY OF THE PROCEEDINGS IN THE TRIAL COURT
This is an appeal from an order of Judge Kenneth Trabue, sitting by designation in the Amherst County Circuit Court, on appeal from an order of Judge Lawrence Janow of the Amherst County Juvenile and Domestic Relations Court. Although the matter was heard by Judge Janow in February, 1995, the appeal was not heard by Judge Trabue until February 20, 1996, the reason for the delay being given as the lack of available courtroom space in Amherst County. Although Judge Trabue ordered in open court on February 20, 1996 that the father shall have visitation with the child and directed counsel to prepare an order to that effect and to set up visitation, counsel failed and refused to comply with that order and never arranged visitation nor ever submitted an order which complied with the judge's decision. Finally, two months later, Judge Trabue backed down from his decision and entered an order denying the parents all custody or even visitation with their child.
Shamema Honzagool Sloan was born in New York City on October 15, 1981. The father of the child is Ismail Sloan and the mother is named Honzagool. On the same day that the child was born, a case was filed for the custody of this child in the Bronx Family Court. The reason for the haste was that the mother was living with a Muslim militant group and had expressed the intention of taking the child to Pakistan upon birth.
In March, 1982, the case, which by then was pending in the Bronx Supreme Court, was tried over a period of five days by Judge Anthony Mercorella. For reasons which were never clear, the case attracted national and even international attention and was prominently mentioned in almost all of the major New York news media. At the conclusion of the trial, Judge Mercorella awarded custody to the mother with visitation to the father and directed that the child not be taken to Pakistan. Sloan v. Awadallah and Honzagool, 17815/1981.
Shortly thereafter, on August 28, 1982, the mother, Honzagool, went to Pakistan, thereby leaving the child in the custody of the father, Ismail Sloan. Honzagool never returned and has not seen her daughter since.
Subsequently, the father hired Shelby Roberts of Madison Heights, Virginia as a care taker to take care of the child. Shelby Roberts apparently developed an attachment towards the child. This eventually led to the decision by the father to terminate her relationship. He took the child back to New York. On August 27, 1986, when the subject child was residing and physically present in New York State, Charles and Shelby Roberts filed a petition for the custody of this child in the Amherst County J & D Court. Also, on September 5, 1986, the Roberts filed suit for the custody of this child in the Supreme Court of New York State, New York County.
Neither court awarded custody to the Roberts. More than that, the summons in neither of the two cases filed by the Roberts were ever served on the parents of the child.
On October 7, 1990, more than four years later, the Roberts arranged to have the child kidnapped in Fujairah, United Arab Emirates, and brought to America. The Roberts have stated that they spent $40,000 to have the child kidnapped. The child was brought on a TWA flight via Abu Dhabi, Bahrain and London, arriving at Washington National Airport on the early morning of October 9, 1990. Charles and Shelby Roberts collected the child at the airport and drove her to their home in Madison Heights, Virginia, where they have kept the child to this day.
The Roberts did not have custody of this child. On October 12, 1990, the Amherst County Department of Social Services assumed custody of the child and "appointed" Charles and Shelby Roberts as foster parents. Neither the father nor the mother were never notified by either the Roberts, the court, or the Department of Social Services that the child was in Virginia. No court hearings were ever scheduled or held regarding the custody of this child with the Department of Social Services, even though the Code of Virginia requires notice and a hearing within 72 hours.
Eventually, the father found out that the child was in Virginia and came to America to locate the child. The father arrived in Amherst County, Virginia on November 13, 1990, and was immediately arrested on a four year old misdemeanor charge concocted by the Roberts, even though the one year statute of limitations on such a charge had obviously expired. Meanwhile, on October 23, 1990, the Roberts had filed yet another petition for the custody of this child.
The father immediately objected that the courts of Virginia have no jurisdiction over this case under the Uniform Child Custody Act. Judge Janow refused to hear the matter until February, 1991. At a hearing in February, 1991, Judge Janow adjourned the case to May, over the strenuous objections of the Department of Social Services, who asked that the child be returned to the father. At a hearing in May, again the Department of Social Services demanded that the child be returned to the father. Again, Judge Janow adjourned the matter. Finally, on July 17, 1991 as of June 24, 1991, Judge Janow awarded custody of the child to Charles and Shelby Roberts.
Meanwhile, the father had filed an appeal to this court from the order of Judge Janow, plus had filed a petition for habeas corpus and a mandamus petition against Judge Janow. The appeal to this court specifically objected to the jurisdiction of the Amherst County courts. In an non-published opinion of this court (which was published in the Virginia lawyers journal) this court ruled that it was premature to raise the jurisdictional question because the lower court orders were not final. Sloan v. DSS, 0770-91-3.
Again and again, on each and every occasion and opportunity, the father has objected to the jurisdiction of the courts of Virginia on the grounds of the Uniform Child Custody Act, the International Child Abduction Remedies Act, 42 USC 11601, and the Hague Convention. On no occasion has the father or the mother ever agreed that the courts of Virginia have jurisdiction over the custody of this child.
On October 25, 1994, after notice to the mother, the Bronx Supreme Court, where the custody case had been continually pending since December, 1981, awarded custody of the child to the father, Ismail Sloan. The father then used this order as the basis to petition the Amherst County J & D Court to recognize the New York Court order. Instead, however, Judge Janow instructed the two attorneys whom he had appointed to this case, J. Thompson Shrader and Lisa Schenkel, to contact the judge in New York and inform her that Virginia had taken jurisdiction over this matter. By the time that they did so, a new judge had been assigned to this case in the Bronx (the previous judges having all retired) and the new judge, without notice to the mother, with very little notice to the father, and with no opportunity for a hearing afforded to either parent, vacated the orders of the previous judges.
None of the above facts are in dispute or could possibly or reasonably be disputed. In addition, a transcript or a statement of facts would not add any light on the underlying question of whether Virginia has ever had jurisdiction over this matter at all. Therefore, this appeal should be allowed to proceed on the record which has been certified to this court.
It is clear from numerous reported decisions of this court that on numerous grounds the courts below have never had jurisdiction to award custody of this child to Charles and Shelby Roberts. In addition to the jurisdictional problems created by the fact that the child was kidnapped by non-parents and brought to Virginia, there is the fact that the Roberts were allowed to keep the child which they had kidnapped as "foster parents". This court has specifically ruled that foster parents cannot obtain custody of a child until they have served as foster parents for more than one year. The Roberts were foster parents from October 12, 1990 until June 24, 1991, which was less than one year, so the courts lacked jurisdiction to award them custody. See Stanley v. Fairfax County Department of Social Services, 395 S.E.2d 199, 207 (1990).
Moreover, the Amherst County Department of Social Services never petitioned for the custody of this child and never recommend that custody be awarded to the Roberts. Rather, the agency recommended that the child be returned to the father. As a result, the Amherst County J & D Court lacked jurisdiction to award custody to the Roberts. Rader v. Montgomery County Department of Social Services, 5 Va. App. 523, 526, 365 S.E.2d 234, 236 (1988), Martin v. Pittsylvania County Department of Social Services, 3 Va. App. 15, 348 S.E.2d 13, 18 (1986), Lowe v. Grasty, 203 Va. 15, 122 S.E.2d 867 (1961).
Finally, the case regarding the custody of this child has been continuously pending in New York since December 1981. Judge Janow obviously knew about this but chose to ignore it. Indeed, a certified copy of the record in the Bronx Supreme Court has been on file with the Amherst County J & D Court since 1986. When the Bronx Supreme Court modified its order dated June 4, 1982 and awarded custody to the father, the Amherst County J & D Court refused to recognize that order. Instead, it instructed the attorneys appointed by the court to contact the New York judge and tell her that her decision was wrong. This was clearly improper.
Accordingly, this appeal should be allowed to proceed and, upon appeal, the orders of the courts below should be vacated so that the custody of the subject child be returned to the natural parents.
QUESTIONS PRESENTED
1. Do the courts of Amherst County, Virginia have jurisdiction over the custody of a child who was born in New York City, whose custody had previously been determined by the Bronx Supreme Court, who lived a majority of her life in foreign countries and who is in Virginia now only as a result of having been brought to the Commonwealth by unrelated third parties seeking her custody?
2. Do third parties who are in no way blood relatives or family members of a child have standing to sue for the custody of that child on the basis of having served as foster parents for less than ten months?
3. Did the Amherst County Juvenile and Domestic Relations Court have jurisdiction over this proceeding, where neither the father nor the mother were ever served with process, where the child was not in the Commonwealth of Virginia at that time that the proceedings were initiated or for four years thereafter, and where the Amherst County Department of Social Services has never requested the custody of this child?
4. Did the Amherst County Juvenile and Domestic Relations Court and subsequently the Amherst County Circuit Court have jurisdiction to award custody of this child to unrelated third parties, where no foster care service plan had ever been filed by the Department of Social Services recommending such an award and where the only recommendation of the Department of Social Services was that the child be returned to the custody of her natural father?
5. Can the courts of the Commonwealth of Virginia deprive a parent of the custody of his child solely on the grounds of objections made by third parties to the life style and religion of the natural parents?
THE COURTS OF VIRGINIA HAVE NO JURISDICTION OVER THIS ENTIRE MATTER
The following are the facts of this case, all of which can be seen from the record without the need of any transcript. (Here it must be mentioned that, as far as appellant is aware, the full record has never been sent up from the J & D Court. The record in that court is around 1000 pages long and includes copies of the proceedings in the New York Supreme Court going back to December, 1981.)
STATEMENT OF FACTS
The appellant, M. Ismail Sloan, is the father of now 14 year old Shamema Honzagool Sloan, who was born in New York City on October 15, 1981. Shamema's mother is named Honzagool. Honzagool returned to her native Pakistan in 1982, when the child was only ten months old, and never returned.
On August 27, 1986, at a time when Shamema Sloan and Ismail Sloan were residing in New York City with the child's grandmother, retired child psychiatrist Dr. Helen Marjorie Sloan, Charles and Shelby Roberts of Madison Heights, Virginia filed a petition for the custody of the child in the Amherst County Juvenile and Domestic Relations Court.
There was never any service of process in this proceeding and, indeed, neither the parents nor the child were ever in Virginia at any time during the next four years. Nevertheless, on September 4, 1986, Judge Lawrence Janow sua sponte issued an order awarding custody to the Amherst County Department of Social Services, with leave to appoint any suitable person, including Charles and Shelby Roberts, as foster parents of the child. The Amherst County Department of Social Services had never petitioned for custody and knew nothing about this child.
This order had little meaning at the time, because the child was not in Virginia. However, Charles and Shelby Roberts then spent the next four years trying to have this child brought to Virginia. They state that they spent $40,000 in this effort to abduct the child. Ultimately, they hired a man named Boonchoo in Thailand to kidnap this child. Through the efforts of Boonchoo, the child was brought to the United States of America, arriving on October 9, 1990, using airline tickets supplied by the Roberts. Charles and Shelby Roberts received the child at Washington National Airport and brought her to their home in Madison Heights, Virginia.
On October 12, 1990, three days after the child had arrived in America, the Roberts, who had not been awarded legal custody, contacted the Amherst County Department of Social Services and informed them of the presence of the child in their home. A representative of the Amherst County Department of Social Services came to their home and appointed the Roberts as foster care parents the same day
On October 7, 1990, the child had been taken from the home of her father, M. Ismail Sloan in Fujairah, United Arab Emirates. Neither the Roberts nor the Amherst County Department of Social Services ever notified the father of the whereabouts of the child. No hearings were ever conducted or scheduled by the Amherst County Juvenile and Domestic Relations Court at that time, even though the Code of Virginia clearly required notice to the parents and a hearing within 72 hours after a child has been taken into custody. Had the father not known that the Roberts had spent years trying to have this child kidnapped, he might never have learned the whereabouts of his daughter.
Subsequently, the father found out that his child was being held in Amherst County, Virginia. He then traveled from the United Arab Emirates to New York City, on November 9, 1990 and arrived in Amherst County, Virginia on November 13, 1990. As soon as he arrived, the father was immediately arrested on a misdemeanor capias issued by Judge Lawrence Janow dated November 13, 1990, which charged him with contempt for violating a 1986 order, even though the one year statute of limitations clearly barred such a four year old misdemeanor charge.
The Amherst County Juvenile and Domestic Relations Court scheduled its first hearing for February 2, 1991. This was the first hearing ever held in this case, as there had been no hearings in 1986 or 1990. At the February 2, 1991 hearing, Judge Janow adjourned the proceedings. Further hearings were held on May 25, 1991 and June 24, 1991. Finally, on July 17, 1991, Judge Janow awarded the custody of Shamema Honzagool Sloan to Charles and Shelby Roberts, nunc pro tunc as of June 24, 1991. The Roberts were allowed to keep this child which they had kidnapped while these hearings were taking place.
The father then appealed to the Amherst County Circuit Court. A hearing was held before Judge Michael Gamble on August 20, 1991. Further, a hearing was scheduled for September 25, 1991. However, on September 5, 1991, before the second hearing could be held, Charles and Shelby Roberts had the father arrested on a charge of the "attempted abduction" of his own daughter.
On November 18, 1991, Judge Michael Gamble affirmed the award of custody to Charles and Shelby Roberts and stated that he would conduct further hearings regarding the father's visitation with the child. However, no such hearings were ever conducted, in spite of repeated demands by the father for such a hearing.
Meanwhile, the father was tried in absentia on December 16, 1991 and sentenced to ten days in jail on the misdemeanor charge of contempt of a 1986 order. The father was also tried and convicted on January 13, 1993 of the attempted abduction of his own daughter and sentenced to five years in prison. The appeal of that sentence was affirmed by a 6-3 vote of an en banc panel of this court. See Sloan v. Commonwealth, No. 93-0934-3. The matter is still pending before the United States Supreme Court on a petition for a writ of certiorari, Sloan v. Virginia, No. 95-8909. The father was released on parole after serving about two years of his five years and ten day sentence.
CONSTITUTIONAL AND PRECEDENTAL IMPORTANCE OF THIS CASE
Ever since Stanley v. Illinois, 405 U.S. 645 (1972), it has been well established that parents have a constitutional right to the custody of their child. This principle was reaffirmed in the Court of Appeals decision in Bottoms v. Bottoms, No. 1930-93-2 (Court of Appeals, June 21, 1994). Although that decision was later overturned by the Virginia Supreme Court on alternate grounds, the courts nevertheless awarded visitation to the natural mother, while awarding custody to the biological grandmother.
In the case presented here, persons who are not parents, nor relatives, nor family members of any kind have been given custody of a child, to the complete exclusion of the natural parents. Nothing of this kind has ever occurred in the entire legal history of Virginia. In the rare exceptional cases where non-parents have been awarded custody of a child, the persons receiving custody have always been family members, such as grandparents or step-parents of the child, and the natural parents have always had reasonable visitation. Here, by contrast, the parents have not been allowed even visitation with the child since the child was abducted in October, 1990 and since custody was awarded to the Roberts in July, 1991, except on one occasion, which was September 5, 1991, when the child was offered as bait to have the father arrested.
It must be pointed out here that this child has never been adopted, nor have the parental rights of either parent ever been officially terminated by court order. At the same time, neither parent presently has the right to see, visit, communicate with or even know the whereabouts of their child. There has been no showing or even an allegation that either the mother or the father has ever abused, neglected, or abandoned this child. Without such showing of unfitness, the natural parents cannot constitutionally be deprived of the custody of their child. See DeBoer by Darrow v. DeBoer, 114 S.Ct. 1 (1993).
Moreover, the previous dismissal of appellant's appeal by the Court of Appeals also violated appellant's constitutional rights. That prior appeal was dismissed as untimely, even though the appellant had never been informed of the order of the circuit court, coupled with the fact that the Amherst County Circuit Court on December 16, 1991 had removed appellant's court appointed attorney and also the guardian ad litem for the child without notice to the appellant or the child and had simultaneously convicted the appellant of contempt and sentenced him to jail in absentia. Established precedent shows that these actions clearly deprived the appellant of his constitutional right to appeal. Penson v. Ohio, 488 U.S. 75 (1988).
It has further been established that by statute in a proceeding involving the Department of Social Services, both the parents and the child have the same rights as do defendants to a criminal proceeding Casey v. Hopewell Department of Social Services, 14 Va. App. 222 (1992). Again, the Court of Appeals ignored its own precedents by denying the appellant's motion for transcripts, and by not even requiring the entire record of the court below to be transmitted by the clerk to the Court of Appeals. Only a skeletal record of 93 pages was transmitted, whereas the entire record of the circuit court comprises more than one thousand pages. Without the record, it was impossible for the Court of Appeals properly to decide this appeal.
The decisions of the trial courts have effectively deprived the parents of this unfortunate child from ever having contact with the child until she reaches legal maturity, even though none of the procedures mandated by statute have ever been followed to terminate the parental rights of the parents. Indeed, no petition for the termination of parental rights has ever been filed. There are innumerable court decisions which show that this violates the constitutional rights of the parents and of the child.
To illustrate the problems created by these decisions, on August 9, 1994, Judge Lawrence Janow, sitting in the Lynchburg Juvenile and Domestic Relations Court, dismissed a visitation petition filed by the father. Judge Janow stated that the decision of the Court of Appeals had "foreclosed" any further hearings regarding the custody of this child. This means that the "best interest" standard, which has always been the standard by which child custody and welfare cases are decided, no longer applies here, and instead this case alone is governed by res judicata.
To illustrate the horrible injustice this has created, the following changes of circumstances have occurred since the prior decision of the Amherst County Circuit Court dated November 18, 1991: While this case has been going on, Shelby Roberts, 58, has become even more obese than ever. She now weighs over 300 pounds, which is approximately her maximum historical weight, plus she now has a heart condition and has difficulty walking. Her husband, Charles Roberts, is in better health but is now 62. How can two such obviously infirm persons be allowed to have custody of a 14 year old child, who is not even a blood relative? No information has ever been made available to the trial court as to the financial, economic, educational or health conditions of the Roberts or of the child. For example, it is not known whether the Roberts are still working or not. Clearly, the appellant-father should be entitled at least to a hearing on this. The appellant has repeatedly and persistently demanded a hearing on these matters, and no hearing has ever been afforded to the appellant. Indeed, no hearing had ever been afforded to the appellant through the entire eight year history of this case. All hearings which did take place, took place at the behest of the Roberts, whom according to established precedent, have never had legal standing at all with respect to this child.
Moreover, Jay Roberts, the younger son of Charles and Shelby Roberts, has Hotchkins disease. Although this disease is in remission, he is sterile and is unable to produce grandchildren for the Roberts, apparently due to chemotherapy or radiation treatments. Jay Roberts is also, according to his own statements in church, a reformed homosexual, who has now given up these wicked practices and has learned the way of the LORD. Charles and Shelby Roberts show no care or concern for the considerable problems of their own son. Instead, they devote their full efforts to kidnapping the children of Ismail Sloan and to repeatedly attacking the appellant through their myriad of court proceedings. In spite of all this, Judge Gamble stated in his November, 1991 decision that the Roberts "have successfully raised two sons to adulthood" and accordingly are entitled to the custody of Sloan's daughter, whom they kidnapped.
Finally, the child herself has simply grown older. She is now 14 years old. In cases involving a contest between parents, the child is allowed to express an opinion. However, here, the child has been locked up and held prisoner for the past six years by non-parents who refuse even to allow the child to attend public school. The Amherst County courts obviously regard this child to be the personal property of the Roberts, even though she has never been adopted by them.
It must be pointed out that proceedings for the custody of this child have been pending in New York State since 1981, long before the Roberts kidnapped this child and then filed their child custody petitions in Virginia. See Sloan v. Awadallah and Honzagool, No. 17815/1981 (Bronx Supreme Court). See also Mr. and Mrs. Charles Roberts v. Ismail Sloan, No. 20991/1986 (Sup. Ct. N.Y.) The Uniform Child Custody Act does not permit custody cases to be litigated in the courts of two states simultaneously, and clearly New York is the primary state of jurisdiction as the birthplace of the child and the state where the custody of this child was first decided. Rogers v. Platt, 245 Cal. Rptr. 532, 199 Cal. App. 3d 1213 (1988); Rogers v. Platt, 641 F. Supp. 381 (D.D.C. 1986); In the Interest of B. G. C., 496 NW2d 239 (Iowa 1992). The highest court of New York State has ruled that persons such as the Roberts are not "parents" and therefore have no standing to file a custody petition in New York State. See Alison D. v. Virginia M, 77 N.Y.2d 651, 586 N.Y.S.2d 586 (Ct.App. 1991), Janet S. M. M. v. Commissioner, 601 N.Y.S. 2d 781 (1993). Accordingly, they ought not be allowed to proceed with a custody petition here.
All this raises constitutional questions which this court ought to consider.
ARGUMENT
Under Virginia law, custody disputes are to be resolved by determining what will serve the best interests of the child. Virginia Code Ann. Section 31-15 (Michie 1992); 20-107.2 (Michie Supp. 1993). Where the dispute is between a natural parent and a third party, "the law presumes that the child's custody will be served in the custody of its parent". Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954); see also Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). ("[T]he rights of the parent are, if at all possible, to be respected, such rights being founded on natural justice and wisdom, being essential to the peace order, virtue and happiness of society.") A non-parent may rebut the presumption favoring a natural parent only by establishing "by clear and convincing evidence" that the parent is unfit or that there are "special facts and circumstances ... constituting an extraordinary reason for taking the child from its parent or parents." Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824, 827 (1986) (quoting Wilkerson v. Wilkerson, 214 Va. 395, 397-8, 200 S.E. 2d 581, 583 (1973)).
This case involves the incessant efforts of an elderly couple who have never had a daughter of their own to gain the custody of somebody else's child.
Although, for their own strategic reasons, the Roberts waited until August 26, 1986 to file their first petition for the custody of this child, at which time the child was not in Virginia, it is now obvious in retrospect that for some time earlier the Roberts were interested in obtaining this child. Shelby Roberts was employed by the father of the child as a secretary typist since 1975. In her capacity as a typist, Shelby Roberts typed the legal papers which were filed in the Bronx Supreme Court in 1982 regarding the custody of this child. Thus, Shelby Roberts knew about the existence of this child long before she ever saw the child for the first time. She later tricked the father into hiring her as a baby sitter, by concealing her interest in getting this child for herself. Both Charles and Shelby Roberts have openly stated that they deliberately deceived the father by concealing their interest in having this child. The Roberts state that their reason for this deception was that they knew that the father would never allow them to have contact with this child, if they revealed their intention ultimately to seek custody.
Shelby Roberts admitted that she was paid more than $20,000 by the father and by the paternal grandmother from 1982 to 1986 to care for this child. Any paid child care worker can make the same sort of claim made by Shelby Roberts, that the child at one time knew her as well if not better than the natural parents. Infants often cannot distinguish who the natural parent actually is. Charles Roberts has since complained that his wife was paid less than the legal minimum wage of $4.25 per hour for her baby sitting services. However, Charles Roberts was not a party to the employment agreement between Ismail Sloan and Shelby Roberts. Mr. Roberts was never present during their discussions about this child and played no role in this. Moreover, Shelby Roberts was paid considerably more by the father for her services on a weekly basis than she and her husband subsequently received as foster parents from the Amherst County Department of Social Services. The Roberts simply have no complaint against the father and indeed never did complain.
No claim has been made by the father or by the Amherst County Department of Social Services that the father ever abused, neglected or abandoned his daughter. The Roberts own statements show that the father never voluntarily relinquished the custody of his daughter. The claims of the Roberts rest solely on their objections to the life styles and religion of both of the parents of this child.
Citing Brown v. Brown, 237 S.E.2d 89 (1977), Judge Lawrence Janow and subsequently Judge Michael Gamble sustained the Roberts objections to the life styles of the parents and awarded custody of this child to the Roberts.
However, the father has never in his life voluntarily spent even one night in Amherst County, Virginia, much less reside with his daughter there. The father resided with his daughter in New York City and in the United Arab Emirates, but never in Amherst County, Virginia. It is unfair to require the father to defend the life style he adopted while living in a foreign country, which has different morals and social customs.
Brown v. Brown, supra, cited by the circuit court below, was a traditional child custody dispute between the father and the mother. No other court, neither in Virginia nor in any of the sister states, has ever ruled that an unrelated third party can successfully claim the custody of a child on the grounds of objections to the parents life styles and religion. The courts have consistently ruled that objections to the parents life styles can form no basis for depriving a parent of custody, unless there is a showing that there has been actual harm to the child. No harm has been shown in the case presented here. The child thrived during the four years that she was living with her father in the United Arab Emirates.
Even in disputes between natural parents, the United States Supreme Court has ruled that the objections of one parent to the life style of the other parent cannot constitutionally form the basis to deprive an otherwise deserving parent of custody. Palmore v. Sidoti, 466 U.S. 429 (1984).
A case on point is Stroman v. Williams, 353 S.E.2d 704 (S.C. 1987). There, the court emphasized that custody is not to be used to penalize or reward a parent for his or her moral conduct. Indeed, a concurring opinion in Stroman encouraged courts not to make moral judgments where the perceived morality issue has not been shown to have any relevancy to the welfare of the child. "We are not in the business of gratuitously judging the private lives of other people." Id. at 707.
This theme was more fully developed in Fort v. Fort, 425 N.E.2d 754 (Mass. App. 1981), a Massachusetts case in which the court's award of custody was upheld in spite of his cohabiting with another woman before and after the divorce was final, in violation of the states laws against adultery, fornication and lewd and lascivious cohabitation.
The case of Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980) is particularly instructive in this regard, as it involves a custody dispute between a mother and a third party, a family friend who had become the child's guardian. The Massachusetts Supreme Judicial Court held that "[a] finding that a parent is unfit to further the welfare of the child must be predicated upon parental behavior which adversely affects the child. The state may not deprive parents of custody of their children simply because their households fail to meet the ideals approved by the community . . . [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average. 410 N.E.2d at 126. Accord, People v. Brown, 49 Mich. 358, 212 N.E.2d 55, 59 (1973); Doe v. Doe, 16 Mass. App. 499, 452 N.E.2d 293, 296 (1983).
The court's personal moral convictions do not suffice to overcome the strong, constitutionally based presumption in favor of leaving the custody of a child with the natural parent. The requirement that courts ground a finding of parental unfitness in some demonstrated harm to the child provides the only objective check on judicial fiat and the only principled protection against arbitrary judicial interference with parental autonomy and private family life. As one commentator has observed, "[u]nless the court has engaged in meaningless rhetoric in describing parental rights as 'fundamental', there must be substantive limits on the ability of individual states to interfere with or to deny those rights. To allow recourse to 'morality' as a justification, even if it is buttressed by criminal statutes, is to render parental rights meaningless. State courts need to be disabused of the notion that parents are entitled to their children's company only upon conformity with judicially imposed values and lifestyles."
Virginia courts that have decided custody disputes involving other behaviors deemed illegal or immoral have recognized that a parent's conduct, even if it has resulted in a criminal conviction, is relevant only if linked to some demonstrably adverse impact on the child. In Walker v. Fagg, 11 Va. App. 581, 400 S.E.2d 208 (1991), for example, the appellate court upheld the award of custody of a father convicted of shooting and killing his wife, who was also the mother of his two children. Clear and convincing evidence, including a "history of alcohol abuse, spousal abuse, unemployment and general family neglect, " had demonstrated the father's unfitness as a parent. Id at 210. Nevertheless, the appellate court refused to hold "that a determination of parental unfitness requires ipso facto a denial of parental custody." Noting that "as between as natural parent and a third party, the rights of the parent are, if at all possible, to be respected, such rights being founded upon natural justice and wisdom, and being essential to the peace order virtue and happiness of society," Id., the appellate court upheld the father's custody under the best interest of the child standard.
Similarly, adultery without more has not been held to justify the denial of custody. While in Brown v. Brown, 237 S.E.2d 89 (Va. 1977), the Virginia Supreme Court did uphold a denial of custody to an adulterous mother, the court specifically noted that (in contrast to the instant case) "there was testimony that the relationship had an adverse impact on the parties two children." Id. at 92. A subsequent Virginia case involving allegations of adulterous behavior have confirmed that the paramount consideration is not the legality or morality of the parent's conduct, but rather its impact on the child. "Brown stands for the principle that the controlling consideration is always the child's welfare and the best interest of the child." Ford v. Ford, 419 S.E.2d 415, 417 (Va. App. 1992).
The trial court's conclusory reliance on appellants alleged "illegal" and "immoral" sexual conduct is grossly inconsistent with Virginia's treatment of other far more egregious conduct. Virginia courts have already ruled that the killing of a human being is not adequate grounds for taking custody of a child away from its biological parent. Sexual orientation must be linked to some adverse impact on a child before custody may be transferred from a parent to a non-parent.
Moreover, the objections and claims of the Roberts refer to the period of 1982 to 1985 when the child was an infant. By October, 1990, when the Roberts finally succeeded in having the child abducted and brought to Virginia, the child had indisputably been living with her father for longer than the longest period of time which the Roberts claimed to have had contact with the child. By 1990, the child had no recollection of the Roberts, whom she had not seen since she was four years old. During the intervening five years with her father, the child had been healthy, happy, doing well in school and, more than that, had shown herself to be a gifted child.
Unfortunately, during the subsequent four years since October, 1990, when the Roberts kidnapped and thereby obtained physical possession of the child, the child has regressed to infant like behavior. The child has stopped talking. The child has made no progress whatever in academic subjects, as shown by her academic test scores. Part of this may be due to the fact that the Roberts have refused to enroll this child in any public or accredited school, as opposed to a religious academy. However, the main reason for the lack of social development on the part of this child is no doubt due to the hostile and repressive environment offered by the Roberts family themselves.
This unfortunate child is being cheated out of the normal growth and development in the context of a warm and loving family which every child is entitled to have and which this child did have during the five years with her father and other family members in the United Arab Emirates.
Charles Roberts was born on April 14, 1934 and is now 62 years and has no capability of caring for a 14 year old child such as Shamema Honzagool Sloan.
Moreover, this is not merely a third party child custody dispute. In order to obtain this child, the Roberts brought on a bogus Department of Social Services proceeding and then got themselves appointed as foster parents. Otherwise, the Roberts would have had no claim whatsoever to this child. Had the Roberts not deceived the Amherst County Department of Social Services regarding the circumstances under which they obtained possession of this child, and thereby maneuvered to have themselves appointed as foster parents, the Roberts almost certainly would have been arrested on kidnapping charges.
No service of process was ever completed or even attempted in this case, on either the mother or the father of the child. The father was never even notified of where his daughter was. The father had to search around the world for his missing daughter. Had the father not known of the desire of the Roberts to obtain possession of this child, he would have had no clue as to where his daughter was to this very day.
It is well established that the Department of Social Services proceedings are void ab initio if there has been no service of process on both of the natural parents. Norfolk Division of Social Services v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986); Augusta County Department of Social Services v. Unnamed Mother, 3 Va. App. 40, 348 S.E.2d 26 (1986); Unknown Father v. Lynchburg Division of Social Services, 15 Va. App. 110 (1992).
In the above cited cases, the identity of one of the parents was unknown to the Department of Social Services, and the unknown parent was not served for that reason. However, in the case presented here, the whereabouts and mailing addresses of both the mother and the father of the child was well known to both the Roberts and to the Amherst County Department of Social Services. Neither of them notified the parents of the whereabouts of this child, simply because they wanted to keep the child for themselves. Accordingly, all proceedings are void ab initio and the child must be returned to the natural custody of her parents.
The Amherst County Juvenile and Domestic Relations Court had no jurisdiction to award custody of this child to the Amherst County Department of Social Services in 1986, as that department had never requested or petitioned for custody. Rader v. Montgomery County Department of Social Services, 5 Va. App. 523, 526, 365 S.E.2d 234, 236 (1988).
After having had the Department of Social Services appointed as a stakeholder to hold this child, the court improperly allowed the Roberts to conduct the proceedings, to call witnesses and to present evidence. However, the Roberts, who only served as foster parents for eight months from October 12, 1990 until June 24, 1991, had no standing to appear, to present evidence, to call witnesses or even to testify in this case. Stanley v. Fairfax County Department of Social Services, 395 S.E.2d 199, 207 (1990).
It violates the statutory scheme to allow a Department of Social Services proceeding to go forward solely to enable unrelated third parties to seek the custody of a child. Smith v. Organization of Foster Families, 431 U.S. 816, 842 (1977).
The natural parents have a constitutionally protected liberty interest in the custody of their own child. Stanley v. Illinois, 405 U.S. 645 (1972).
Significantly, in the proceedings below, the Amherst County Department of Social Services called no witnesses and presented no evidence. The Department of Social Services has repeatedly stated that it would have immediately returned the child to the father, were it not for the fact that it was enjoined by an order of Judge Janow of the Amherst County Juvenile and Domestic Relations Court from allowing any contact between the child and her father. The Amherst County Juvenile and Domestic Relations Court lacked jurisdiction to enter such an order, absent a hearing and a showing of possible harm to the child. Wright v. Arlington County Department of Social Services, 388 S.E.2d 477 (1990); Santosky v. Kramer, 455 U.S. 745, 769 (1982).
No home study was ever conducted and filed with the court concerning the Roberts. No foster care service plan was ever filed with the court by the Department of Social Services recommending that custody of this child be awarded to the Roberts. Consequently, the Amherst County Juvenile and Domestic Relations Court lacked jurisdiction to award custody of this child to the Roberts. Martin v. Pittsylvania County Department of Social Services, 3 Va. App. 15, 348 S.E.2d 13, 18 (1986), Lowe v. Grasty, 203 Va. 15, 122 S.E.2d 867 (1961).
The father was released on parole on sentences totaling five years and ten days in prison, all for contempt for violation the aforementioned orders of the Amherst County Juvenile and Domestic Relations Court. The father has successfully completed his parole and is free to travel. However, as shown above, that court was without the power or the jurisdiction to issue those orders. It is well established that a father cannot be found in contempt for failing to comply with orders which are jurisdictionally void. Kogon v. Ulerick, 405 S.E. 2d 441 (1991), Bryant v. Commonwealth, 198 Va. 148, 93 S.E.2d 130 (1956); New York RR Company v. Commonwealth, 196 Va 428, 83 S.E.2d 782 (1954), Buchanan v. Buchanan, 170 Va. 458, 197 S.E.2d 426 (1938); Hamstead v. Dostert, 313 S.E.2d 409 (W.Va. 1984).
It is most unfortunate that this case has gone on for the last ten years since 1986 and that the father never has previously been able to obtain judicial review by any appellate court of these jurisdictionally void proceedings, all due to the deliberate procrastination and delay first by the Amherst County Juvenile and Domestic Relations Court and then by the Amherst County Circuit Court.
CONCLUSION
For all of the reasons set forth above, the decision of the trial courts must be reversed and these proceedings must be dismissed and the child must be returned to the custody of her father or in the alternative this case should be remanded to the trial court for determination based upon a proper record.
Appellant requests oral argument of this appeal.
DATED: September 8, 1996
__________________________
M. Ismail Sloan
2420 Atherton St., Suite 6
Berkeley CA 94704
Tel: (718) 638-5153
FAX: (718) 857-8613
CERTIFICATE OF SERVICE
Samuel H. Sloan states that on September 9, 1996 he served the within opening brief of the appellant by mailing a true copy of the same to the following:
Charles and Shelby Roberts
420 Amelon Road
Madison Heights, VA 24572
J. Thompson Shrader
P. O. Box 428
709 South Main Street
Amherst, Virginia 24521
Lisa L. Schenkel
1602 Graves Mill Road
P. O. Box 11315
Lynchburg, Virginia 24506
Honzagool c/o Raja Abdul Rashid
House No. 252, Street No. 52
F-10/4, Islamabad
Pakistan
_________________________
Samuel H. Sloan