Anthony Harris v. Danville Department of Social Services

• Court: Court of Appeals of Virginia
• Decided: October 22, 2019
• Docket: 0534193
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Malveaux and Senior Judge Frank UNPUBLISHED

ANTHONY HARRIS MEMORANDUM OPINION* v. Record No. 0534-19-3 PER CURIAM OCTOBER 22, 2019 DANVILLE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Clyde H. Perdue, Jr., Judge

(James C. Martin; Martin & Martin Law Firm, P.C., on brief), for appellant.

(Alan Spencer, Assistant City Attorney; R. Colby Warren, Guardian ad litem for the minor child; Haymore & Holland, P.C., on brief), for appellee.

Anthony Harris (father) appeals the order terminating his parental rights. Father argues that

the circuit court erred in terminating his parental rights “where he had committed no abuse or

neglect and where the evidence against him did not meet the standard of clear and convincing

evidence and was legally insufficient to prove the statutorily required criteria for such termination.”

Upon reviewing the record and briefs of the parties, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND1

“On appeal from the termination of parental rights, this Court is required to review the

evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford

Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cty. Dep’t of

Human Servs., 63 Va. App. 157, 168 (2014)).

Father and Victoria Steele (mother) are the biological parents to A.H., who is the subject

of this appeal. On August 6, 2015, the Danville Department of Social Services (the Department)

removed then-one-year-old A.H. from her parents’ care after receiving a report that their home

was infested with rats and had toilet and tub problems. The Danville Juvenile and Domestic

Relations District Court held a hearing on August 12, 2015. At that time, father was incarcerated

for unauthorized use of an automobile. The Department met with father while he was

incarcerated. Father expressed an interest in having custody of A.H., but also suggested that the

Department contact his father, who lived in Pennsylvania, as a possible relative placement.

On December 17, 2015, the Department spoke with father by telephone and discussed the

need for father to participate in a psychological evaluation and attend parenting and substance

abuse classes. Father attended the parenting classes, but did not participate in the other required

services. Father complained about a particular parenting coach, so the Department arranged for a

different parenting coach.

Father visited with A.H. until August 2016, when he claimed that he had contracted

Methicillin-resistant Staphylococcus aureus, or MRSA. The Department informed him that he

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has raised. Evidence and factual findings below that are necessary to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- could not visit with A.H. until he provided proof that he no longer had the infection. Father

never produced the necessary proof to show that the infection had been cured.

Father did not contact the Department between August and October 2016. Then, on

October 6, 2016, he left the social worker a voice mail message, and thereafter, they “played

‘phone tag.’” The social worker met with father at a JDR court hearing on November 18, 2016.

Meanwhile, the Department explored a relative placement for A.H.; however, it

determined that the placement was not viable.

Father did not attend a JDR court hearing on February 24, 2017. On March 15, 2017, the

Department attempted to contact father by going to his last known address and calling him, but

the Department was unable to reach him. The Department had no contact with father until

January 2018, when it learned that father was incarcerated for a probation violation. A social

worker met with father in jail and asked him where he had been living. Father replied that he

had moved to Raleigh, North Carolina and had been living with his girlfriend. Father informed

the Department that his father was interested in custody of A.H., but his father never filed a

petition for custody.

The last time that the Department had face-to-face contact with father was on February

24, 2018. After that date, all contact between them was by telephone. On April 16, 2018, father

called the Department. He was out of jail, but since he had not provided documentation

confirming that he no longer had MRSA, the Department did not arrange a visit with A.H.

On June 15, 2018, father called the Department and informed the social worker that he

had moved to Delaware. The Department explained that it could not provide services to father

while he lived in Delaware; however, it did arrange for weekly Facetime visits between father

and A.H., beginning in July 2018. At that time, father indicated that he was still interested in

-3- having custody of A.H., but by September 2018, father told the Department that he was no

longer seeking custody because “it would be easier to arrange visitation through [mother].”

On October 5, 2018, the JDR court terminated father’s parental rights to A.H., and father

appealed the matter to the circuit court.2

On February 6, 2019, the parties appeared before the circuit court. The Department

presented evidence that father had two Facetime visits with A.H. in late 2018, and two more

Facetime visits in early 2019, before the circuit court hearing.

Father testified that he wanted custody of A.H., but when asked if he preferred for mother

to have custody, “he replied that he only felt she might do better in court if he lost.” He further

explained that he could take care of A.H. He lived in a two-bedroom apartment in Delaware

with a roommate and worked forty hours per week. His father lived approximately forty-five

minutes away, and his grandmother lived approximately ten miles away.

After hearing the parties’ arguments, the circuit court terminated father’s parental rights

to A.H. under Code § 16.1-283(C)(1) and (C)(2).3 This appeal followed.

ANALYSIS

Father argues that the evidence was insufficient to support the circuit court’s decision to

terminate his parental rights.4 Father acknowledged that “contact with the [Department] [had]

been very difficult for [him] at times,” but contends that “this contact problem [had] been

substantially solved.” Father further asserts that “his out-of-state location . . . provides good

2 The JDR court also terminated mother’s parental rights to A.H., and she appealed the decision to the circuit court. 3 The circuit court did not terminate mother’s parental rights to A.H. 4 Several times in the argument section of his brief, father states that he did not abuse or neglect A.H. The circuit court did not terminate his parental rights under Code § 16.1-283(B), so we will not address father’s statements regarding abuse or neglect. -4- cause for some excusable delay” under Code § 16.1-283(C)(2). He emphasizes that he has “a

good job, an available home, and relatives nearby.” Lastly, father contends that the Department

did not provide reasonable services to him.

“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,

considered the statutory requirements, and made its determination based on the child’s best

interests.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018)

(quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128 (1991)). “Where, as

here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be

disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cty. Dep’t

of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania Cty.

Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).

The circuit court terminated father’s parental rights under Code § 16.1-283(C)(1) and

(C)(2). Code § 16.1-283(C)(2) states that a court may terminate parental rights if:

The parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 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.

“[S]ubsection C termination decisions hinge not so much on the magnitude of the

problem that created the original danger to the child, but on the demonstrated failure of the

parent to make reasonable changes.” Yafi, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t

of Soc. Servs., 46 Va. App. 257, 271 (2005)). “Considerably more ‘retrospective in nature,’

subsection C requires the court to determine whether the parent has been unwilling or unable to

remedy the problems during the period in which he has been offered rehabilitation services.”

-5- Toms, 46 Va. App. at 271 (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40

Va. App. 556, 562-63 (2003)).

The Department removed A.H. in August 2015, and met with father a couple of weeks

later while he was incarcerated. Initially the Department did not discuss any services for father

because he expected to be released from incarceration shortly thereafter. When his release date

was later than expected, the Department contacted father, and he challenged paternity. After a

paternity test confirmed that he was the father, the Department met with him in December 2015

and discussed the services, including a psychological evaluation, parenting classes, and

substance abuse classes, that father had to complete. By the time of the circuit court hearing in

February 2019, father still had not completed the psychological evaluation and substance abuse

classes, despite having more than three years to complete the services.

Father argues that his move to Delaware “provides good cause for some excusable delay

under [Code § 16.1-283(C)(2)].” Father, however, had had no contact with the Department from

November 2016 until January 2018, despite the Department’s attempts to contact him. Father

belatedly told the Department that he had moved to North Carolina in 2017. Then, in June 2018,

he informed the Department that he had moved to Delaware. At that time, A.H. had been in

foster care for almost three years, and father still had not participated in the required services.

“Code § 16.1-283(C)(2)’s twelve-month time limit ‘was designed to prevent an indeterminate

state of foster care “drift” and to encourage timeliness by the courts and social services in

addressing the circumstances that resulted in the foster care placement.’” Thach, 63 Va. App. at

171 (quoting L.G. v. Amherst Cty. Dep’t of Soc. Servs., 41 Va. App. 51, 56 (2003)). Father’s

move to Delaware did not create “an excusable delay” for his failure to complete services after

the child had been in foster care for three years.

-6- Father also asserts that the Department did not provide him reasonable services.

“‘Reasonable and appropriate’ efforts can only be judged with reference to the circumstances of

a particular case. Thus, a court must determine what constitutes reasonable and appropriate

efforts given the facts before the court.” Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42

Va. App. 149, 163 (2004) (quoting Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App.

333, 338 (1992)). The Department “is not required to force its services upon an unwilling or

disinterested parent.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App. 296, 323

(2013) (quoting Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 243 (1982)); see also

Logan, 13 Va. App. at 130.

Father had sporadic and limited contact with the Department while A.H. was in foster

care. The Department reviewed the required services with father in December 2015, while he

lived in Virginia. Father only participated in the parenting classes. The Department also

arranged for father to visit with A.H. Then, in August 2016, his visitations stopped when he

claimed to have MRSA. For more than two years, father failed to provide any proof that his

infection had cured so that he could visit with A.H. in person. The Department had no contact

with father after a hearing on November 28, 2016, until January 2018, when the Department

learned that he was incarcerated. Father subsequently moved to Delaware. The Department told

father that it could not provide services when he lived “at such a long distance.” Contrary to

father’s arguments, the Department had provided father with opportunities to engage in services

before he moved to Delaware, but father did not cooperate.

The evidence was sufficient to terminate father’s parental rights. Father had had ample

opportunities over the years to participate in the required services; however, he failed to do so.

He did not maintain continuous contact with the Department and never provided them with the

necessary documentation to visit with A.H. in person. Father did not demonstrate that he had

-7- substantially remedied the conditions that led to the requirement for A.H.’s continued foster care

placement. “It is clearly not in the best interests of a child to spend a lengthy period of time

waiting to find out when, or even if, a parent will be capable of resuming his [or her]

responsibilities.” Tackett, 62 Va. App. at 322 (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540 (1990)). Based on the totality of the circumstances, the circuit

court did not err in terminating father’s parental rights under Code § 16.1-283(C)(2).

“When a trial court’s judgment is made on alternative grounds, we need only consider

whether any one of the alternatives is sufficient to sustain the judgment of the trial court, and if

so, we need not address the other grounds.” Kilby v. Culpeper Cty. Dep’t of Soc. Servs., 55

Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46

Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of

Code § 16.1-283 and did not need to address termination of parental rights pursuant to another

subsection). Therefore, we will not consider whether the circuit court erred in terminating

father’s parental rights pursuant to Code § 16.1-283(C)(1).

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.

Affirmed.

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