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COURT OF APPEALS OF VIRGINIA Present: Judges Benton, Elder and Overton Argued at Richmond, Virginia PAMELA J. HAWKS, A/K/A PAMELA J. WALKER v. Record No. 2633-96-2

DINWIDDIE DEPARTMENT OF SOCIAL SERVICES

OPINION BY JUDGE LARRY G. ELDER JULY 15, 1997

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). released from incarceration in 1992. Mother was

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

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

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