Dawn Farrell v. Warren County Department of Social Services

719 S.E.2d 313, 59 Va. App. 342, 2012 WL 42173, 2012 Va. App. LEXIS 4
CourtCourt of Appeals of Virginia
DecidedJanuary 10, 2012
Docket1872104
StatusPublished
Cited by30 cases

This text of 719 S.E.2d 313 (Dawn Farrell v. Warren County Department of Social Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawn Farrell v. Warren County Department of Social Services, 719 S.E.2d 313, 59 Va. App. 342, 2012 WL 42173, 2012 Va. App. LEXIS 4 (Va. Ct. App. 2012).

Opinions

ALSTON, Judge.

Dawn Farrell (mother) appeals the trial court’s decision to terminate her parental rights to her three infant children under Code § 16.1-283(B). Mother contends that the trial court erred in four respects. First, mother argues that the trial court erred in basing its finding that the children E. and W. were abused and neglected on its determination that the child A. was abused and neglected. Second, mother asserts that the evidence was insufficient to support the trial court’s finding that E. and W. suffered abuse or neglect that presented a serious and substantial threat to their lives, health, or development. Third, mother challenges the sufficiency of the evidence supporting the trial court’s finding that the conditions resulting in the neglect or abuse of the three children could not be remedied within a reasonable period of time. And fourth, mother assigns as error the trial court’s decision to terminate her parental rights without giving her an opportunity to remedy the conditions leading to the children’s removal. For the following reasons, we find that the trial court did not err in any aspect that mother raises and affirm the decision below.

I. OVERVIEW

Because this case involves multiple hearings and decisions, we begin with an overview of the process that led to the ultimate result in the trial court. Code § 16.1-251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian’s or parent’s custody. The JDR court may issue this order ex parte so long as it is accompanied by a petition alleging that the child is abused or neglected and an affidavit or sworn testimony in person before a judge or intake officer. Code § 16.1-251. That affidavit or sworn testimony must establish that the child “would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury [346]*346would be likely to result” without the removal and that the Department has made reasonable efforts to prevent the removal but there are no less drastic alternatives that would “reasonably protect the child’s life or health pending a final hearing on the petition.” Code § 16.1-251(A).

The JDR court must then hold a preliminary removal hearing within five business days of the child’s removal. Code § 16.1—251(B). At the preliminary hearing, the Department must prove by a preponderance of the evidence the same elements required to obtain the emergency removal order, specifically 1) imminent threat of injury or irremediable harm; 2) reasonable efforts to prevent removal from the home; and 3) no less drastic alternative than removal exists, for the JDR court to continue the child’s removal from the home. Code § 16.1-252(E). Additionally, the JDR court “shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence,” unless the parents or custodian, guardian ad litem or petitioning department objects. Code § 16.1-252(G). If a party to the proceeding objects, then the JDR court must schedule an adjudicatory hearing on a date within thirty days of the preliminary hearing. Id. If no party objects, and the JDR court finds that the child at issue was abused or neglected, the JDR court must schedule a dispositional hearing for a date within seventy-five days of the preliminary hearing. Code § 16.1-252(H).

Regardless of whether the JDR court requires the Department to prove the abuse or neglect at the prehminary removal hearing or the adjudicatory hearing, the Department will have to establish that the child is abused or neglected under one of the definitions listed in Code § 16.1-228. For ease of reference, throughout this opinion we will refer to the JDR court’s and trial court’s decision on this issue as the “abused or neglected determination.”

As noted above, once the JDR court finds a child to be abused or neglected, it may proceed to the dispositional hearing and take evidence on one of the dispositions listed in Code § 16.1-278.2. Code § 16.1-278.2(A)(7) allows, inter alia, the [347]*347JDR court to “[Germinate the rights of the parent pursuant to [Code] § 16.1-283.” Because this case involves a termination of parental rights under Code § 16.1-283, we will refer to this final stage as either the “dispositional hearing” or the “termination decision.” It is critical to understand that regardless of what subsection of Code § 16.1-283 the Department proceeds under, it must prove each of its allegations by clear and convincing evidence before the JDR court may terminate a parent’s parental rights to his or her child. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982). Moreover, a dispositional order entered pursuant to this statutory scheme is a final order from which a party may appeal in accordance with Code § 16.1-296. Finally, when an appeal is taken to the circuit court in a case involving termination of parental rights brought under Code § 16.1-283, the circuit court is obligated to hold a de novo hearing on the merits of the case within ninety days of the perfecting of the appeal. Code § 16.1-296(D).

II. FACTS AND PROCEEDINGS BELOW

On appeal, “we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below, in this case the Department.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va.App. 1178, 1180, 409 S.E.2d 16, 18 (1991) (citing Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986)).

A. The First Removal

So viewed, the evidence indicated that mother has been married to father at all relevant times to this case, and father is the biological father of all children involved in this case. Their daughter, E., was born on November 17, 2005. On the same day mother tested positive for cannabinoid, an illegal drug. On November 12, 2006, mother gave birth to premature twins, A. and W., and the twins tested positive for cocaine at birth. Just two days later, on November 14, 2006, mother tested positive for cocaine and tetrahydrocannabinol (“THC”). Mother did not obtain prenatal care prior to the births of the [348]*348children and did not know she was having twins until shortly before they were born.

On November 17, 2006, the Warren County Department of Social Services (the “Department”) summarily removed all three children from mother’s and father’s home. Following a hearing, the juvenile and domestic relations district court (“JDR court”) found that all three children were abused or neglected as defined in Code § 16.1-228(1), each of them being a child:

Whose parents or other person responsible for his care 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....

In January 2007, the JDR court entered a dispositional order, vesting custody of all three children with the Department.

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Bluebook (online)
719 S.E.2d 313, 59 Va. App. 342, 2012 WL 42173, 2012 Va. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawn-farrell-v-warren-county-department-of-social-services-vactapp-2012.