Georgia Hurst v. City of Roanoke Department of Social Services

• Court: Court of Appeals of Virginia
• Decided: October 30, 2018
• Docket: 0657183
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, AtLee and Senior Judge Clements UNPUBLISHED

GEORGIA HURST MEMORANDUM OPINION* v. Record No. 0657-18-3 PER CURIAM OCTOBER 30, 2018 CITY OF ROANOKE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge

(Suzanne Moushegian; Moushegian Law, P.L.L.C., on brief), for appellant. Appellant submitting on brief.

(Daniel J. Callaghan, City Attorney; Heather P. Ferguson, Assistant City Attorney; Brittany F. Gordon, Guardian ad litem for the minor child; Steidle Law Firm, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Georgia Hurst (mother) appeals the order terminating her parental rights to her child and

approving the goal of adoption. Mother argues that the circuit court erred by (1) terminating her

parental rights pursuant to Code § 16.1-283(B) and (C)(2) because she had substantially complied

with the requirements of the City of Roanoke Department of Social Services (the Department) and

had made progress toward eliminating the conditions that led to and required the continuation of the

child being placed in foster care; and (2) finding that it was in the child’s best interests to terminate

her parental rights and approve the goal of adoption. Upon reviewing the record and briefs of the

parties, we conclude that the circuit court did not err. Accordingly, we affirm the decision of the

circuit court.

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

“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.’” Farrell v. Warren Cty.

Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.

Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).

Mother is the biological parent to K.H.1 Approximately one month after K.H.’s birth, the

child was hospitalized due to anemia, poor weight gain, and apnea. The Pulaski County

Department of Social Services investigated the matter and assumed emergency custody of K.H. A

protective order was put in place, and the child subsequently was returned to mother. After mother

completed the required services, the protective order was dismissed.

Since the incident in 2007, mother and K.H. have been the subject of numerous child

protective service reports and investigations. The Montgomery County Department of Social

Services placed K.H. in foster care again from July 14, 2011 until August 7, 2012 because mother

was incarcerated and unable to identify a caretaker for K.H. Mother and her boyfriend, Steven

Welch, threatened to blow up a neighbor’s home and threatened the neighbors with a sword. The

police found a pipe bomb and black powder in the home, where K.H. was present. After mother’s

release from jail, she complied with probation and the service plan, so K.H. was returned to her.

Between March 2015 and November 2016, the Department received and investigated seven

additional complaints. The Department provided assistance and services to the family and later

closed its cases. In November 2016, the Department received a report that K.H. had overheard

Welch ask someone on the telephone to bring him crack cocaine. Then, after someone came to their

house, K.H. saw mother and Welch lock themselves in their bedroom. K.H. also reported that

Welch had sexually abused her two years earlier. Welch said that K.H. was lying and spanked her.

1 The Department was unable to determine the child’s father. -2- K.H. was worried about reporting the incidents because she feared Welch would hit her. When the

Department asked mother about the reported incidents, mother said that K.H. “makes up lies like

this all the time” and that Welch had not done anything to K.H. However, mother agreed to a safety

plan and to keep Welch away from K.H.

On November 14, 2016, K.H. reported that Welch was in the home over the weekend and

that mother yelled at her for reporting the abuse. On November 15, 2016, the Department spoke

with mother, who said that K.H. stayed with a friend the previous night because Welch was in the

house. Mother could not provide a last name or contact information for the friend with whom K.H.

stayed. Mother and the Department discussed the option of mother and K.H. staying at the Rescue

Mission until other living arrangements could be made. On November 16, 2016, the Department

received a report that mother and Welch locked K.H. out of the house, so K.H. stayed with a

neighbor. On November 17, 2016, mother took a drug test, which came back positive for cocaine.

Mother denied using cocaine but admitted smoking marijuana.

On the night of November 29, 2016, mother and K.H. stayed at the Rescue Mission.

According to mother, K.H. brought a pair of scissors into the room and threatened to kill herself.

The next day, mother told the Department that she did not take K.H. to the hospital for an evaluation

because it was past curfew at the Rescue Mission. The school reported that K.H. was expressing

suicidal tendencies. Due to concerns about mother’s ability to provide adequate supervision and

care for K.H., the Department requested an emergency removal order for K.H., who was

hospitalized from November 30, 2016 until December 7, 2016.

On December 7, 2016, the City of Roanoke Juvenile and Domestic Relations District Court

(the JDR court) entered a preliminary removal order and found that K.H. was abused or neglected.

While K.H. was in foster care, the Department required mother to maintain safe and stable housing,

insure that Welch was not living in the home, obtain and maintain stable and verifiable

-3- employment, attend visitation, comply with random drug screens, attend a substance abuse

assessment and follow any recommendations, attend appointments with a psychiatrist, participate in

individual counseling, complete a parenting class, and maintain contact with the Department.

The Department also referred mother for a psychological and parenting capacity evaluation.

On May 9, 2017, Dr. Klaire Mundy completed her evaluation of mother. Dr. Mundy expressed

concern about mother’s limited cognitive ability,2 which led to her having “the same problematic

behaviors over and over again.” Dr. Mundy also found that mother “engage[d] in a pattern of blame

and deflection, and the majority of her report suggested that her daughter was at fault for much of

the problems that the family has experienced.” Mother reported that “all of the stress related to

parenting [was] based on the child’s behavior” and suggested that K.H. was “causing all the stress.”

Dr. Mundy noted that mother’s “focus appears to remain on having her own emotional needs met

versus ensuring the needs of her young daughter.” After evaluating mother, Dr. Mundy

recommended that mother be a joint custodian, as opposed to a primary caregiver, for K.H. because

mother “does not possess the intellectual strength, executive functioning abilities, or insight to

ensure that her daughter is provided with a safe and supportive environment.” Dr. Mundy explained

that even if mother complied with all of the recommended services, her cognitive level was not

going to change, and she would continue to have a lack of insight and concrete thought pattern.

After receiving Dr. Mundy’s recommendations, the Department reviewed them with mother.

The Department discussed with mother the need for a joint custodian, but mother was unable to

provide the names of any possible relatives. The Department also referred mother to an anger

management class and an Alcoholics Anonymous (AA) group. Mother completed the anger

management class and reported that her AA group was no longer meeting. Mother also completed a

parenting class and regularly attended sessions with her counselor and psychiatrist.

2 Mother’s IQ tested in the second percentile. -4- Mother informed the Department that she received disability income and had housing

through Section Eight. The Department remained concerned, however, about Welch’s involvement

in the family because it appeared that mother remained in a relationship with Welch through March

15, 2018. Mother visited with K.H. on a weekly basis, until December 14, 2017, when the

Department stopped visitations. The Department had to intervene during some of the visits because

mother discussed inappropriate matters with K.H. The Department also was worried about K.H.’s

behavior during the visits. Although K.H. was nine years old, she acted like a toddler by sitting in a

high chair, sitting in her mother’s lap, and using only two or three words in a sentence.

In addition to the above requirements, the Department expected mother to participate in

random drug screens, with which she complied on April 26, May 15, and September 1, 2017.

Mother tested positive for cocaine with each test, but repeatedly denied using cocaine. Due to her

self-reports, she did not qualify for services for substance abuse treatment. On September 8, 2017,

after the Department advised mother of her positive drug screen from September 1, mother was

hospitalized until September 11, 2017, for mental health issues and making homicidal threats

against the social worker. Mother’s counselor sent a letter to the Department to request that the

social worker not have direct contact with mother because mother viewed the social worker as “an

emotional trigger.” The Department assigned a different social worker to communicate with

mother.

After her release from the hospital, mother was referred to another substance abuse

treatment program. Mother started the program, but continued to test positive for cocaine on

October 23, November 13, December 6, December 18, and December 28, 2017.3 She was referred

to the Day Treatment Program; however, she was later discharged from the program because she

continued to have positive drug screens. She started a different substance abuse treatment program

3 Mother refused to comply with a drug screen on December 11, 2017. -5- in February 2018, and again tested positive for cocaine on February 15, March 5, and March 19,

2018.

On November 21, 2017, the JDR court entered orders terminating mother’s parental rights

and approving the goal of adoption. Mother appealed to the circuit court.

On March 27, 2018, the parties appeared before the circuit court. The Department presented

evidence that K.H. had mental and emotional health needs, as well as academic needs. K.H. was

diagnosed with anxiety, specified mood disorder, post-traumatic stress disorder, and attention

deficit/hyperactivity disorder. K.H. attended therapy on a weekly basis and took medicine for her

mental health needs. Since entering foster care, K.H. was hospitalized three times, once in

November 2016 and twice in February 2017, for suicidal and homicidal ideations. On April 13,

2017, the Department placed K.H. in a new foster home, where she has done well. However, that

placement is not an adoptive placement for K.H.

K.H. also was being tested to determine whether she had an intellectual disability. At the

time of the circuit court hearing, she was two grades behind her peers in elementary school. She

had an individualized education plan and participated in therapeutic day treatment.

At the conclusion of all of the evidence and argument, the circuit court found that it was in

K.H.’s best interests to terminate mother’s parental rights pursuant to Code § 16.1-283(B) and

(C)(2) and approve the goal of adoption. On April 10, 2018, the circuit court entered an order

memorializing its rulings. This appeal followed.

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 Cty. Dep’t of Family Servs., 68 Va. App. 547, 558, 811 S.E.2d

835, 840-41 (2018) (quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128,

-6- 409 S.E.2d 460, 463 (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,

717 S.E.2d 811, 814 (2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App.

15, 20, 348 S.E.2d 13, 16 (1986)).

Termination of parental rights

Mother argues that the circuit court erred in terminating her parental rights pursuant to

Code § 16.1-283(B) and (C)(2). She asserts that she substantially remedied, or corrected, the

conditions that led to K.H. being placed in foster care. Mother emphasizes that she complied

with the Department’s requirements, including completing a parenting class and an anger

management class. She attended counseling and met with her psychiatrist. She had stable

housing and regularly visited with K.H.

Code § 16.1-283(B) states a parent’s parental rights may be terminated if:

1. The neglect or abuse suffered by such child presented a serious and substantial threat to his life, health or development; and

2. It is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child’s safe return to his parent or parents within a reasonable period of time. In making this determination, the court shall take into consideration the efforts made to rehabilitate the parent or parents by any public or private social, medical, mental health or other rehabilitative agencies prior to the child’s initial placement in foster care.

Furthermore, the following is prima facie evidence of the conditions under Code

§ 16.1-283(B)(2): “[t]he parent or parents have a mental or emotional illness or intellectual

disability of such severity that there is no reasonable expectation that such parent will be able to

undertake responsibility for the care needed by the child in accordance with his age and stage of

development.”

-7- On December 7, 2016, the JDR court adjudicated that K.H. was an abused or neglected

child, and on February 2, 2017, it entered a dispositional order regarding the abuse and neglect.

Mother did not appeal this finding. The evidence proved that K.H. was hospitalized for suicidal

ideations when the Department removed her from mother’s care.

The Department provided mother with numerous services; however, despite those

services, mother was unable to meet K.H.’s needs. Dr. Mundy determined that mother had

“significant decrements in the areas of executive functioning” and had an “emotional pattern that

was consistent with that of a young teen.” As a result, Dr. Mundy opined that mother was

“likely to experience difficulty with her role of a caretaker.” Dr. Mundy stated, “Of greatest

concern is the fact that this pattern of problematic interpersonal interaction, poor parenting skills,

and lack of insight have been characterological to the point that she is likely to repeat the cycle

if/when her daughter is returned to her care.” Dr. Mundy did not recommend that mother be the

primary caregiver for K.H. At the conclusion of all of the evidence, the circuit court found that

mother had a “severe intellectual disability that prevent[ed] her from undertaking responsibility

for the care of her child.” The evidence was sufficient to support the circuit court’s finding

because the Department presented sufficient prima facie evidence that the conditions which

resulted in the neglect or abuse of K.H. could not be “substantially corrected or eliminated so as

to allow [K.H.’s] safe return to [mother] . . . within a reasonable period of time.” Code

§ 16.1-283(B)(2).

“[S]ubsection B [of Code § 16.1-283] ‘speaks prospectively’ and requires the circuit

court to make a judgment call on the parent’s ability, following a finding of neglect or abuse, to

substantially remedy the underlying problems.” Toms v. Hanover Dep’t of Soc. Servs., 46

Va. App. 257, 270-71, 616 S.E.2d 765, 772 (2005) (quoting City of Newport News Dep’t of Soc.

Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).

-8- Contrary to mother’s arguments, the circuit court did not err in terminating mother’s

parental rights pursuant to Code § 16.1-283(B). “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, 684 S.E.2d 219, 220 n.1 (2009);

see also Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659

(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

mother’s parental rights pursuant to Code § 16.1-283(C)(2).

Best interests

“When addressing matters concerning a child, including the termination of a parent’s

residual parental rights, the paramount consideration of a trial court is the child’s best interests.”

Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App. 296, 319, 746 S.E.2d 509, 521

(2013) (quoting Logan, 13 Va. App. at 128, 409 S.E.2d at 463).

When K.H. entered foster care, she had to be hospitalized for suicidal ideations. K.H.

needed a lot of attention, stability, and structure. The Department presented evidence that K.H. was

doing better in her current foster home. She was implementing new coping mechanisms, improving

her grades, and receiving support from school, counselors, and her foster home.

Dr. Mundy recommended that mother not be K.H.’s primary caregiver because mother did

not “have the ability to be a fulltime parent and custodian and keep herself and her child safe

without making the same sort of problematic choices again.” Dr. Mundy testified that mother

needed someone to help her establish boundaries with K.H. and ensure that K.H. had what she

-9- needed and was safe. Dr. Mundy did not believe that mother could improve her situation because of

her limited cognitive skills.

At the conclusion of the matter, the circuit court found that “no effort on [mother’s] part,

however valued, will correct these deficits either under [Code § 16.1-283] B or C within a

reasonable period of time.” It further held that K.H. “would be in significant danger if left in the

custody and supervision of her mother.”

“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, 746 S.E.2d at 522 (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)).

Therefore, contrary to mother’s arguments, the circuit court did not err in finding that it was

in K.H.’s best interests to terminate mother’s parental rights and approve the goal of adoption.

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is affirmed.

Affirmed.

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