Haley Harris, Tammy Dawn Dauch and Herbert Dauch, Jr. v. Carroll County Department of Social Sevices

• Court: Court of Appeals of Virginia
• Decided: February 23, 2021
• Docket: 0356203
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, AtLee and Senior Judge Haley UNPUBLISHED

HALEY HARRIS, TAMMY DAWN DAUCH AND HERBERT DAUCH, JR. MEMORANDUM OPINION* v. Record No. 0356-20-3 PER CURIAM FEBRUARY 23, 2021 CARROLL COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF CARROLL COUNTY Bradley W. Finch, Judge Designate

(Wren M. Williams; Schneider & Williams, P.C., on brief), for appellants.

(Mary Foil Russell; Michael R. Bedsaul; Joey D. Haynes, Guardian ad litem for the minor child; Sands Anderson; The Jackson Law Group PLLC, on brief), for appellee.

Haley Harris (mother), Tammy Dauch (maternal grandmother), and Herbert Dauch

(maternal grandfather) appeal the order terminating mother’s parental rights to her minor child,

S.J.H. In their sole assignment of error, appellants argue that the circuit court erred in terminating

mother’s parental rights without a finding as to the completion or adequacy of the investigation into

alternative placement options conducted by Carroll County Department of Social Services (the

Department). 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 trial 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 Cnty. Dep’t

of Hum. Servs., 63 Va. App. 157, 168 (2014)).

Mother is the biological mother to S.J.H., a three-year-old minor child.2 On February 23,

2018, the Carroll County Juvenile and Domestic Relations District Court (the JDR court) entered

an emergency removal order removing one-month-old S.J.H. from mother’s care. Medical

records showed that S.J.H. suffered “multiple fractures located on different horizontal and

vertical planes of the body at different stages of healing suggesting repeated trauma both in time

and type.” The medical records indicated that physicians believed the injuries and fractures

indicated multiple counts of physical abuse within S.J.H.’s first month of life. The circuit court

subsequently convicted mother of felony child abuse and neglect and sentenced her to ten years’

imprisonment with nine years and six months suspended.

On March 28, 2018, the JDR court found that S.J.H. was abused or neglected. After a

dispositional hearing, the JDR court approved a foster care plan with the concurrent goals of

returning to home and relative placement. Maternal grandparents filed petitions for custody and

visitation in October 2018.

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellants have 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 Clint Hull is the biological father of S.J.H. The Carroll County Juvenile and Domestic Relations District Court terminated Hull’s parental rights. Hull appealed that decision to the Carroll County Circuit Court, but subsequently withdrew his appeal. -2- On February 4, 2019, the JDR court approved a foster care plan with the permanent goal

of adoption; mother did not appeal this ruling. On April 25, 2019, the JDR court entered an

order terminating mother’s parental rights. The JDR court also dismissed maternal grandparents’

custody and visitation petitions. Mother and maternal grandparents appealed the JDR court’s

April 25 rulings to the circuit court.

On January 23, 2020 the parties appeared before the circuit court on maternal

grandparents’ petitions for custody and visitation and the Department’s petition to terminate

mother’s parental rights. Regarding the petition to terminate mother’s parental rights, the circuit

court found that even in a light most favorable to mother, she waited at least twelve hours before

seeking any medical treatment for S.J.H. after witnessing S.J.H. suffer severe injuries, including

multiple bone fractures to different parts of S.J.H.’s body. The circuit court found that mother

previously failed to act and protect S.J.H. from previous severe injuries. In addition, the circuit

court found that mother’s conviction of felony child abuse or neglect was “a felony offense

involving a serious bodily injury” to S.J.H. The circuit court terminated mother’s parental rights

to S.J.H. under Code § 16.1-283(B), (C)(1), (C)(2), (E)(iii), and (E)(iv).

That same day, the circuit court also considered maternal grandparents’ custody and

visitation petitions. The circuit court indicated that it considered each of the factors contained in

Code § 20-124.3. The circuit court found that although the Department offered visitation to

maternal grandparents, they had not exercised any visitation with S.J.H. until October 23, 2018.

Since October 23, 2018, maternal grandparents had only visited with S.J.H. for a few hours. The

circuit court found that during the time maternal grandparents could have visited, they ultimately

chose not to. The circuit court found that maternal grandparents failed to present sufficient

evidence for the circuit court to make the necessary findings to transfer custody under Code

§ 16.1-278.2(A1) and failed to prove that awarding them custody or visitation was in S.J.H.’s

-3- best interests. The circuit court dismissed maternal grandparents’ custody and visitation

petitions with prejudice.

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)).

Appellants argue that the circuit court erred in terminating mother’s rights without a

finding as to the completion or adequacy of the Department’s investigation into alternative

placement options.

I. Motion to Dismiss

The Department filed a motion to dismiss the appeal. The Department alleges that

appellants failed to properly preserve the issue asserted in their assignment of error because

appellants failed to file a transcript or written statement in lieu of a transcript. See Rule 5A:8. The

Department asserts that because the transcript or statement of facts is indispensable to the resolution

3 Appellants’ notice of appeal indicates that the parties appealed the final termination of mother’s parental rights order as well as the final order dismissing maternal grandparents’ petitions for custody and visitation. However, as noted above, appellants’ sole assignment of error addresses only the termination of mother’s parental rights. Accordingly, our review is limited to that one issue. -4- of the issue raised by appellants, the failure to timely file the transcript requires dismissal. We deny

the motion to dismiss for the following reasons.

“Although we may dismiss an appeal for non-compliance with the Rules, Rule 5A:1A,

deficiencies in notice of filing and filing of transcripts do not entitle appellees to dismissal of an

appeal in every instance.” Browning v. Browning, 68 Va. App. 19, 25 (2017). Our Supreme Court

has held that the transcript filing requirement is a non-jurisdictional procedural rule. Smith v.

Commonwealth, 281 Va. 464, 468 (2011). “Nevertheless, the failure to present a complete record

upon which this Court can make an effective determination of the issues may bar our consideration

of a party’s assigned errors.” Browning, 68 Va. App. at 25.

The Court has available the record on appeal and “may . . . consider other parts of the

record” not contained in the appendix. Rule 5A:25(h). We have reviewed the record and find that

the transcript is not indispensable. The record includes the circuit court’s findings of fact in detail

which, ultimately, stand as the basis for this appeal. Assuming without deciding that appellants’

assignment of error was preserved in the circuit court, we conclude that the record on appeal

provides a sufficient basis upon which this Court can fully and adequately consider the question

raised by appellants.

The Department has also moved to dismiss the appeal because of appellants’ inclusion of

two additional documents in the appendix. Appellants designated a petition for injunction and the

corresponding objection by the Department as part of the appendix; the Department argues that

these documents should not be a part of the record or appendix in this case. The Department argues

that the petition and corresponding objection were filed after the circuit court entered its final order

at issue in this appeal and should thus not be considered. We agree. Accordingly, we have not

considered these pleadings in resolving this appeal.

-5- II. Standing

Mother, maternal grandmother, and maternal grandfather collectively bring the instant

appeal. However, “one cannot raise third party rights.” Tackett v. Arlington Cnty. Dep’t of Hum.

Servs., 62 Va. App. 296, 325 (2013) (quoting DePriest v. Commonwealth, 33 Va. App. 754, 761

(2000)). “The general requirements of standing have often been stated: ‘The purpose of requiring

standing is to make certain that a party who asserts a particular position has the legal right to do so

and that his rights will be affected by the disposition of the case.’” Id. (quoting Kelley v. Stamos,

285 Va. 68, 73 (2013)).

Appellants’ sole assignment of error is whether the circuit court “erred in granting [the

Department’s] Petition for Termination of Parental Rights without a finding as to the completion or

adequacy of [the Department’s] investigation into alternative placement options.” Appellants

assigned no error to the circuit court’s order denying maternal grandparents’ petitions for custody

and visitation. As in Tackett, maternal grandmother and grandfather “did not have any legal right to

assert that mother’s parental rights should not be terminated.” Id. Parental rights to S.J.H. only

belonged to mother and the biological father. Maternal grandparents only had standing to appeal

the circuit court’s denial of their petitions for custody and visitation. Id. at 326. Because the

maternal grandparents lack standing to pursue the sole issue presented by the assignment of error,

we consider the assignment of error only as it pertains to the claims of mother.

III. Termination of Mother’s Parental Rights

The circuit court terminated mother’s parental rights under Code § 16.1-283(B), (C)(1),

(C)(2), (E)(iii), and (E)(iv). Mother does not contest the factual grounds supporting the circuit

court’s termination decision. Mother argues that the circuit court erred in terminating her parental

rights without a finding as to the completion or adequacy of the Department’s investigation into

alternative placement options.

-6- Before ordering the termination of a parent’s parental rights, a court “shall give a

consideration to granting custody to a person with a legitimate interest.” Code § 16.1-283(A).

“This Court has interpreted this provision to require agency consideration of all ‘reasonable options

for placement with immediate relatives’ as a prerequisite to a parental termination decision.”

Pilenza v. Nelson Cnty. Dep’t of Soc. Servs., 71 Va. App. 650, 654 (2020) (quoting Bagley v. City

of Richmond Dep’t of Soc. Servs., 59 Va. App. 522, 524 (2012)).

An order transferring custody of the child to a person with a legitimate interest must include

findings that the person:

(i) is . . . willing and qualified to receive and care for the child; (ii) is willing to have a positive, continuous relationship with the child; (iii) is committed to providing a permanent, suitable home for the child; and (iv) is willing and has the ability to protect the child from abuse and neglect.

Code § 16.1-283(A1).

The evidence reflected in the record on appeal establishes that the Department did

investigate the maternal grandparents as a potential placement. The Department determined that the

maternal grandmother was not a possible placement because she had a history of Department

involvement with her own child within the past three years. All possible placements suggested by

S.J.H.’s parents were investigated and proved inappropriate because of the severity of S.J.H.’s

injuries and her age, which necessitated extensive care and supervision. The Department also noted

a physical altercation between S.J.H.’s maternal grandmother and biological father while maternal

grandmother was holding S.J.H.; hospital staff had to separate them and remove S.J.H. to another

room.

On April 4, 2018, the JDR court approved the initial foster care plan with a goal of relative

placement. Despite this, maternal grandmother did not visit with S.J.H. for more than six months.

-7- In its ruling on maternal grandparents’ custody and visitation petitions, the circuit court

found that maternal grandparents had not done what was required to meet S.J.H.’s needs. The

circuit court found that visitation with S.J.H. did not begin until October 23, 2018, and maternal

grandparents only visited with S.J.H. for a total of “a few hours.” The circuit court also found that

maternal grandparents had not demonstrated “a great ability to maintain a continuous and positive

relationship with [S.J.H.].” The circuit court specifically found that maternal grandparents had not

presented sufficient evidence in order to make the findings required by Code § 16.1-283(A1). In the

termination order, the circuit court indicated that it had considered and dismissed maternal

grandparents’ custody and visitation petitions.

The circuit court is not required to make an express finding as to the completion or adequacy

of the Department’s investigation of maternal grandparents as mother contends. The circuit court is

only required to consider granting custody to persons with a legitimate interest. Code

§ 16.1-283(A). The record demonstrates that the circuit court considered placement with the

maternal grandparents and ultimately dismissed their petitions for custody and visitation. The

record supports the Department’s completion of an investigation for placement with maternal

grandparents and the circuit court’s consideration and denial of S.J.H.’s placement with maternal

grandparents. “Because this Court defers to a lower court’s judgment based on evidence heard ore

tenus unless plainly wrong or without support, Logan, 13 Va. App. at 128, it does not disturb the

circuit court’s ruling that no relatives were suitable placements.” Castillo, 68 Va. App. at 568.

CONCLUSION

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

Affirmed.

-8-