Christy Lee Payne v. Prince Edward County Department of Social Services

• Court: Court of Appeals of Virginia
• Decided: January 26, 2021
• Docket: 0839202
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, AtLee and Senior Judge Haley UNPUBLISHED

CHRISTY LEE PAYNE MEMORANDUM OPINION* v. Record No. 0839-20-2 PER CURIAM JANUARY 26, 2021 PRINCE EDWARD COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Donald C. Blessing, Judge

(Ashley Ailsworth Sterling; Sterling Legal, PLLC, on brief), for appellant.

(Kemper M. Beasley, III; M. Brooke Teefey, Guardian ad litem for the minor children; Teefy Law, P.C., on brief), for appellee.

Christy Lee Payne (mother) appeals dispositional orders approving the removal and initial

foster care plans relating to her two children, F.L.L. and G.L.L. Mother argues that the circuit court

erred in finding that the children were abused or neglected because the evidence was insufficient to

support a finding of abuse or neglect, nor was abuse or neglect proven by a preponderance of the

evidence. 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, “we view the evidence in the light most favorable to the prevailing party, in

this case, the Department, and grant to it all reasonable inferences fairly deducible from the

evidence.” King v. King George Dep’t of Soc. Servs., 69 Va. App. 206, 210 (2018) (quoting C.

Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 420-21 (2012)).

In January 2020, mother became a resident at Madeline’s House shelter with her

fifteen-month-old twins when her vehicle got a flat tire. On February 10, 2020, Prince Edward

County Department of Social Services (the Department) received a report that the children were

found unsupervised eating feces in the bathroom; the report further indicated that while the

children slept, mother pinched their airways to wake them. The children were approximately

sixteen months old at the time, and the family still resided at Madeline’s House. The caller was

also concerned about mother’s history of homelessness, refusal of services offered to her, and

mental stability.

On February 11, 2020, the Department removed F.L.L. and G.L.L. from mother’s care.

The Department contacted the police for assistance in the removal. When deputies arrived, they

waited in an office adjacent to the room where mother, the children, and some social workers

were located. At some point, mother was allowed to take the children to the bathroom to change

their diapers. Mother remained in the bathroom for over twenty minutes, had locked the door,

and refused to come out of the restroom. Eventually, deputies unlocked the bathroom and the

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- Department staff removed the children. Deputies detained mother, who was irate⸺kicking,

screaming, and yelling—and transported her to Crossroads for evaluation.

The Department filed petitions for emergency removal of the children. On February 12,

2020, the Prince Edward County Juvenile and Domestic Relations District Court (the JDR court)

entered preliminary removal orders and granted the Department temporary custody of both

children. The JDR court denied visitation between mother and the children.

On March 4, 2020, the JDR court adjudicated that the children were abused or neglected

and scheduled a dispositional hearing. The JDR court subsequently entered a dispositional order;

it granted custody to the Department and approved the initial foster care plans for both children.

The JDR court awarded mother visitation with the children at the discretion of the Department.

Mother appealed the JDR court’s rulings to the circuit court.

On June 25, 2020, the parties appeared before the circuit court. After hearing evidence

and argument, the circuit court adjudicated that the children were abused and neglected and entered

dispositional orders. Assistance and services had been offered to mother, but she did not avail

herself to any assistance either before or after her children were removed. The circuit court found

that mother did not properly supervise the children, had not availed herself of services, and had left

the Commonwealth while her children remained in the Department’s custody. The circuit court

transferred custody of the children to the Department and held that visitation between mother and

the children would be at the discretion of the Department. The circuit court further ordered that the

Department continue to make reasonable efforts in making appropriate service referrals to mother

and the children to accomplish the goals set forth in the foster care plans and ordered that mother

should continue to utilize her best efforts to fulfill the requirements of the foster care plans. This

appeal followed.

-3- ANALYSIS

“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 Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)

(quoting Logan v. Fairfax Cnty. Dep’t of Hum. 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 Cnty.

Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania

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

Mother argues that the circuit court erred in finding that the evidence was sufficient to prove

that F.L.L. and G.L.L. were abused or neglected. Mother also argues that the abuse and neglect

were not proven by a preponderance of the evidence.

Code § 16.1-228(1) defines an abused or neglected child as any child: “[w]hose

parents . . . creates or inflicts, threatens to create or inflict, or allows to be created or inflicted

upon such child a physical or mental injury by other than accidental means, or creates a

substantial risk of death, disfigurement or impairment of bodily or mental functions.” “[T]he

statutory definitions of an abused or neglected child do not require proof of actual harm or

impairment having been experienced by the child.” D. Farrell v. Warren Cnty. Dep’t of Soc.

Servs., 59 Va. App. 342, 364 (2012) (quoting Jenkins, 12 Va. App. at 1183). “[T]he Code

contemplates intervention . . . where ‘the child would be subjected to an imminent threat to life

or health to the extent that severe or irreversible injury would be likely to result if the child were

returned to or left in the custody of his parent . . . .’” Id. Proof by a preponderance of the

evidence is the appropriate standard for abuse and neglect cases. See Cumbo v. Dickenson Cnty.

Dep’t of Soc. Servs., 62 Va. App. 124, 130 (2013).

-4- The record establishes that the Department became involved with the family in February

2020, but mother also had prior involvement with the Department in Virginia Beach and Henrico

County. Housing and mental health services were offered to mother, but she declined everything

except financial assistance.

An investigation revealed that mother had a history of homelessness. Mother self-reported

that she lived in different homeless shelters in California while pregnant with the children. Mother

also lived with various relatives or friends during that time. At some point after the children were

born, the family moved to Texas. From Texas, mother brought the family to Virginia. All records

that the Department accessed indicated that mother stayed in temporary housing or homeless

shelters. Mother never stayed in any location for longer than a month but estimated that she had

been in five different shelters. Mother had also spent the night in her vehicle with the children more

than once.

Mother told a social worker that she provided her children with food, water, and shelter and

did not think that her children had been removed lawfully. Mother stated that her Ford Explorer

was like an RV so she could take the children around the country to stay in various parks; mother

considered this arrangement to be acceptable. Mother sent the social worker photographs of the

manner in which she had outfitted the vehicle to serve as accommodation. The vehicle contained a

pack ‘n play in the trunk with toys, a bed with blankets and toys in the back seat, and mother

planned to shower or bathe at YMCAs across the country with a nationwide membership. Mother’s

vehicle did not contain car seats despite the children’s young ages.

The Department presented evidence that mother often left the children unattended while

at Madeline’s House. When left unattended, the children got into trash and papers, and played

with small toys. Shelter staff had removed small objects from the children’s mouths, and the

children were transported to the emergency room on one occasion after F.L.L. consumed feces

-5- from a toilet brush. A shelter staff member also testified that she was holding the sleeping

children when mother took them and pinched their noses until they gasped for air and woke up.

Mother told the staff member that she did not want the children to nap so they would sleep

through the night and mother could sleep that night. Mother was offered services through the

shelter including parenting classes, counseling, and alternative housing; she declined all offers.

Shelter staff ultimately asked mother to leave because she did not follow shelter rules.

The Department referred mother to Dr. Susan Reeves of Crossroads Community Services

Board for a mental health evaluation. After the evaluation, Dr. Reeves diagnosed mother with

major depressive disorder with mixed features, post-traumatic stress disorder, disruption of family

by separation or divorce, and problems related to other legal circumstances. Dr. Reeves testified

that mother clearly was depressed and anxious and had a significant history of reported trauma.

Dr. Reeves also considered future diagnoses of bipolar disorder and narcissistic personality disorder,

but while mother exhibited some behaviors associated with those disorders, she did not meet the full

diagnostic criteria.

Dr. Reeves expressed concern over mother’s ability to take care of her children because she

was concerned that mother could not care for herself. At the time of the evaluation, Dr. Reeves

indicated that it was more likely that something could happen to harm the children because of

mother’s circumstances. Mother testified and reported to Dr. Reeves that someone had followed her

across the country. Dr. Reeves found that mother required support to parent and provide for her

children in a successful manner, including the ability to provide a stable nonmobile household, a

steady income, regular routine, and enhanced parenting skills. Dr. Reeves recommended supervised

visitation with the children to help motivate mother to achieve those goals and thought that

individual counseling would be necessary to help mother deal with her trauma. Dr. Reeves testified

-6- that as of the day of the evaluation, mother could not parent the children without supervision, but if

mother got the help that she needs, she could parent the children at some point in the future.

When presented with the foster care plan recommendations, mother did not think she needed

to complete them and was averse to any suggestions. Mother refused housing assistance because it

was not for the waterfront apartment in Hopewell that she requested. After the children were

removed, mother first moved to Texas, and then went back to California. Mother had no plans to

return to Virginia and lived in a shelter at the time of the circuit court hearing. When asked why she

left Virginia, mother stated that she did not like the culture in Virginia and did not feel that the

Department’s actions were in her children’s best interests.

Mother’s argument to the contrary notwithstanding, the record supports the circuit court’s

findings that the children were abused and neglected because they faced an “imminent threat to life

or health” if they remained in mother’s custody. Code § 16.1-228(1). Mother left the children

unsupervised on numerous occasions. The lack of supervision resulted in one child consuming

feces off a toilet brush on one occasion. More generally, both children accessed trash, with all the

hazards attendant to such circumstances. In addition, shelter staff at Madeline’s House had to

remove small objects from the children’s mouths because of mother’s inattentiveness. Mother

repeatedly declined all offered services, including housing assistance, parenting classes, and

counseling. Mother’s mental health evaluation indicated that until mother’s circumstances changed,

she could not safely parent the children. Most importantly, mother left Virginia while the children

remained in the Department’s care rather than avail herself of services to regain custody of her

children. Thus, the record supports, by a preponderance of the evidence, the trial court’s conclusion

that the children were abused or neglected.

-7- CONCLUSION

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

Affirmed.

-8-