COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Chafin UNPUBLISHED
Argued at Lexington, Virginia
JACKLYN D. STANLEY
v. Record No. 1189-16-3
BRISTOL DEPARTMENT OF SOCIAL SERVICES MEMORANDUM OPINION* BY JUDGE ROBERT J. HUMPHREYS JASON M. STANLEY MARCH 28, 2017
v. Record No. 1449-16-3
BRISTOL DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Sage B. Johnson, Judge
Robert L. Black, Jr. (Jim Williams & Associates Attorneys at Law, LLC, on brief), for appellant Jacklyn D. Stanley.
David Eddy (Law Offices of David Eddy Attorney at Law, PLLC, on brief), for appellant Jason M. Stanley.
Edward G. Stout (Joshua P. Sutherland, III, Guardian ad litem for the minor children; Holston Legal Group, on briefs), for appellee.
Jason M. Stanley (“Jason” or “father”) and Jacklyn D. Stanley (“Jackie” or “mother”)
(collectively the “parents”) consolidated their respective appeals regarding the May 26, 2016
decision of the Circuit Court of the City of Bristol (the “circuit court”) to terminate their
respective residual parental rights of their two children, namely a daughter, P.S., and a son, J.Z.
The parents assert that the circuit court erred when it terminated their respective parental rights
because the Bristol Department of Social Services (BDSS) failed to: (1) prove, by clear and
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. convincing evidence, without good cause, that the parents had been unwilling or unable within a
reasonable period of time not to exceed twelve months from the date the children were placed in
foster care to remedy substantially the conditions which led to or required continuation of the
children’s foster care placement, notwithstanding the reasonable and appropriate efforts of
social, medical, mental health, or other rehabilitative agencies to such end, pursuant to Code
§ 16.1-283(C)(2); (2) prove, by clear and convincing evidence, that it is in the best interests of
both children that their respective parental rights be terminated pursuant to Code § 16.1-2831;
and (3) meet its burden to show that no reasonable alternatives existed to termination.
“When reviewing a termination of a parent’s residual parental rights, it would be unfitting
to not acknowledge that ‘[t]he termination of parental rights is a grave, drastic and irreversible
action.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 400, 719 S.E.2d 329, 341
(2012) (quoting Helen W. v. Fairfax Cty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407
S.E.2d 25, 28-29 (1991)). For such cases, this Court presumes that the circuit court “thoroughly
weighed all the evidence, considered the statutory requirements, and made its determination
based on the child’s best interests.” Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App.
1, 7, 614 S.E.2d 656, 659 (2005) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794,
796 (1990)). Furthermore, “the evidence is viewed in the light most favorable to the prevailing
party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.”
Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
The circuit court has “broad discretion in making the decisions necessary to guard and to foster a
child’s best interests.” Farley, 9 Va. App. at 328, 387 S.E.2d at 795. Therefore, in a case
1 Father lengthened his assignment of error to state that it was not possible to remedy the conditions which led to or required continuation of the children’s foster care placement since he was not the cause of those conditions or living in the home when the conditions occurred and the mother was making substantial progress for the duration the children were in foster care pursuant to Thach v. Arlington Cty. Dep’t of Human Servs., 63 Va. App. 157, 754 S.E.2d 922 (2014). -2- involving termination of parental rights, the circuit court’s judgment, “when based on evidence
heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to
support it.” Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231,
235 (2016) (quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659). Thus, this Court will not
reverse the circuit court’s judgment terminating the mother’s and the father’s parental rights
unless the evidence, viewed in the light most favorable to BDSS, was insufficient to support it.
Code § 16.1-283(C) states in pertinent part:
The residual parental rights of a parent or parents of a child placed in foster care as a result of court commitment, an entrustment agreement entered into by the parent or parents or other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:
1. The parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six months after the child’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to communicate with the parent or parents and to strengthen the parent-child relationship . . . ; or
2. 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. Proof that the parent or parents, without good cause, have failed or been unable to make substantial progress towards elimination of the conditions which led to or required continuation of the child’s foster care placement in accordance with their obligations under and within the time limits or goals set forth in a foster care plan filed with the court or any other plan jointly designed and agreed to by the parent or parents and a public or private social, medical, mental health or other rehabilitative agency shall constitute prima facie evidence of this condition. The court shall take into consideration the prior efforts of such agencies to rehabilitate the parent or parents prior to the placement of the child in foster care.
-3- Pursuant to Code § 16.1-283(C) the “trial judge must make two separate inquiries in
order to terminate parental rights.” Richmond Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572,
579, 625 S.E.2d 670, 673 (2006). The court must find that BDSS has “met its burden of proving,
by clear and convincing evidence: (1) that termination is in the best interests of the child; and
(2) that the parent has not maintained a relationship with the child or remedied the conditions
that led to foster care placement.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 46,
764 S.E.2d 284, 290 (2014). “This statutory scheme is designed to protect the rights for the
parents and their child and must be strictly followed before the courts are permitted to sever the
natural bond between parent and child.” Thach v. Arlington Cty. Dep’t of Human Services, 63
Va. App. 157, 169, 754 S.E.2d 922, 928 (2014) (quoting Layne v. Layne, 61 Va. App. 32, 36-37,
733 S.E.2d 139, 140 (2012)). Because the appellants’ first and second assignments of error
simply separate the two-prong test that is required by Code § 16.1-283(C), we will consider
those assignments of error together.
“The first prong of [Code § 16.1-283(C)] is to determine the child’s best interests.” Id.
“[T]here is no simple, mechanical, ‘cut and dried’ way” to apply the best interests of the child
standard. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Instead, “the
question must be resolved . . . in light of the facts of each case.” Welch, 64 Va. App. at 48, 764
S.E.2d at 291.
In determining what is in the best interests of the child, the circuit court must evaluate and consider many factors: the age and physical and mental condition of the child; the age and physical and mental condition of the parent; the relationship existing between the parent and the child; the needs of the child; the role the parent has played, and will play in the future, in the upbringing and care of the child; and any other such factors that are necessary.
Thach, 63 Va. App. at 169, 754 S.E.2d at 928.
-4- In this case, the mother argues that the circuit court limited its analysis of the children’s
best interest to the “special needs” of “the children and the mother’s inability to meet those
needs.” The mother believes the circuit court erred because it was impressed with the testimony
of Dr. Erin Jurich-Finney (“Dr. Jurich-Finney), a clinical psychologist, regarding J.Z. and
neglected to provide any analysis with respect to the remaining factors. The mother argues that
in reviewing all of the enumerated factors, the evidence introduced at trial was insufficient as a
matter of law to prove by clear and convincing evidence that termination was in the best interest
of each child.
The mother solely highlights the evidence most favorable to her cause. First, she points
to statements made by Linda Comer (“Comer”), a licensed professional counselor. Comer
testified as an expert in parental counselling and stated that the visits between the mother and her
children went well and any small issues were handled appropriately. Additionally, during visits,
Comer did not have any concerns about the mother managing the children. Next, the mother
points to the notes of Dr. Wayne Lanthorn (“Dr. Lanthorn”), a clinical psychologist.
Specifically, the mother highlights that Dr. Lanthorn wrote, “in the examiner’s opinion, no
strong clinical evidence was found that would lead to discouraging the [circuit c]ourt or the
[BDSS] from not retuning her two younger children to her care.”
However, the mother completely ignores Dr. Jurich-Finney’s testimony. First,
Dr. Jurich-Finney testified that the mother’s attendance at the family therapy meetings was
sporadic. Then, after the mother gave birth to another child not involved in this case, J.Z. was
not happy and the mother was less regular in coming to the appointments. Dr. Jurich-Finney
stated that the mother’s demeanor and appearance were different each time. Sometimes she was
well dressed, fully present, and able to connect. On other days, she seemed lost. Specifically,
Dr. Jurich-Finney testified that the mother had difficulty reinforcing boundaries in an appropriate
-5- way so that J.Z. could see that there were rules and they had to be followed. Dr. Jurich-Finney
characterized the relationship as sometimes being parent-child, but “on her less together days it
was more like a sibling relationship.” Finally, Dr. Jurich-Finney expressed that J.Z.’s individual
therapy was being derailed by the family therapy. The mother’s last visit was on August 26,
2015. As a result of these problems, Dr. Jurich-Finney recommended that the visits cease in
October 2015. Dr. Jurich-Finney believed that J.Z. desperately needed permanency in his life,
and stability to deal with his meltdowns and his diagnosis of ADHD.
Meanwhile, the father argues that he was not there and pursuant to Thach his rights
should not have been terminated. However, his reliance on Thach is misplaced. In Thach, the
mother was found to have neglected the child because she abused substances. Mendoza, the
father, was unaware of the situation and the Arlington County Department of Human Services
delayed offering Mendoza services. The reason this Court found in favor of Mendoza was
because “[a]t the time of the circuit court’s judgment, the record is clear that Mendoza had
completed, or was participating in, the services recommended by DHS, he was providing a
satisfactory home for [the] younger brother, and the neglectful parent had been removed from the
equation.” Thach, 63 Va. App. at 173, 754 S.E.2d at 930. Here, the father was completely
absent for over a year, only showing up when the circuit court hearing was scheduled.
The circuit court relied on Crawley when it made its determination regarding the
children’s best interest. Crawley states that, “[i]n each subsection of [Code § 16.1-283], the
child’s best interest is the threshold test. . . . Thus, we have held that, when considering a
termination of parental rights, the child’s best interest is the paramount concern.” Crawley, 47
Va. App. at 579, 625 S.E.2d at 673. In its May 26, 2016 opinion letter, the circuit court
discussed the mother’s inability to meet the children’s special needs and the children’s necessity
for permanency, particularly critical to J.Z. The circuit court was
-6- particularly impressed by the testimony of Dr. Erin Jurich-Finney, who had been working with [J.Z.] since June, 2014. She testified to [J.Z.’s] needs, the mother’s inability to meet those needs, and the necessity for permanency particularly critical to [J.Z.]. While all children thrive with permanency, it was quite clear to the [circuit c]ourt that it was a particularly relevant factor as it related to both [children], because of their special needs. Therefore, the [circuit c]ourt finds, based upon the facts and evidence presented, that the mother has not “substantially remedied the conditions” that led to the emergency removal and that the “best interests” of the children require termination of the residual parental rights of the mother.
Given that the best interests of the child analysis is highly fact-sensitive and
discretionary, overturning the circuit court’s decision in this case would necessarily require this
Court to improperly substitute its judgment for that of the circuit court. See Simmons v.
Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986). “There simply is no bright line
standard that this Court can apply to conclude that as a matter of law, the circuit court erred in
determining that termination was not in the best interests of the child. Instead, we must presume
that the circuit court made its determination based on the best interests of the child.” Welch, 64
Va. App. at 49, 764 S.E.2d at 292. Here, because the circuit court relied on appropriate factors
and pointed to some evidence supporting its decision, we hold that the circuit court’s best
interests’ determination was not plainly wrong or without evidence to support it.
Regarding the second inquiry that a circuit court must make in order to terminate parental
rights, that the parent has not maintained a relationship with the child or remedied the conditions
that led to foster care placement, the circuit court based its decision to terminate the mother’s
parental rights to J.Z. and P.S. on Code § 16.1-283(C)(2). The statute contemplates that efforts
to resolve the “conditions” relevant to termination are constrained by time. Roanoke City Dep’t
of Soc. Servs. v. Heide, 35 Va. App. 328, 336, 754 S.E.2d 890, 894 (2001). “[The]
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 -7- resulted in the foster care placement.” Thach, 63 Va. App. at 171, 754 S.E.2d at 929 (quoting
L.G. v. Amherst Cnty. Dep’t Soc. Servs., 41 Va. App 51, 56, 581 S.E.2d 886, 889-90 (2003)).
The mother argues that the twelve-month period for which Code 16.1-283(C)(2)
describes ended on December 11, 2014 because BDSS removed the children from her custody on
December 11, 2013 and placed them into foster care. According to the mother, she had
substantially remedied the conditions that led to the children’s placement in foster care by
December 11, 2014 and the circuit court improperly limited its consideration of evidence to the
time period between December 2013 and June 2015 during the March 7, 2016 parental
termination hearing. The mother contends the circuit court failed to consider the new situation as
of the hearing date: (1) that she now had a home with her boyfriend, Mark Brent (“Brent”), and
he was willing to allow J.Z. and P.S. to reside with them; (2) Brent had all the necessary
furniture for the children to reside in the home; (3) the paranoia she displayed directly after the
birth of her youngest daughter in June 2015 was pretty much gone; and (4) she stressed that as of
the hearing date she was back to taking her medication. However, there is no evidence other
than her testimony that any of these new factors existed. Additionally, the record reflects that the
mother had previously told a BDSS employee that Brent was mentally abusive to her, he was an
alcoholic, made fun of her mental disability, and that it had only gotten worse since her youngest
daughter was born.
We note that “[t]he fundamental liberty interest of natural parents in the care, custody and
management of their children does not evaporate simply because they have not been model
parents or have lost temporary custody . . . to the State.” Crawley, 47 Va. App. at 581, 625
S.E.2d at 674 (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). “If there is reason to
believe that positive, nurturing parent-child relationships exist, the [state’s] parens patriae
interest favors preservation, not severance, of natural familial bonds.” Thach, 63 Va. App. at
-8- 173, 754 S.E.2d at 930. “[T]he factfinder may consider evidence before or after the
twelve-month time period in order to evaluate the present best interest of the child.” Id. at 171,
754 S.E.2d at 929. “The circuit court may discount the parent’s current progress if the best
interests of the child would be served by termination, or it may determine that a parent’s delayed,
but nonetheless substantial, progress may overcome the time delay.” Id.
Here, the circuit court found by clear and convincing evidence that the mother has a
significant mental health impairment, which “requires stable and constant medication.” It
acknowledged that during short periods of time from the emergency removal on December 11,
2013 until June 2015, the mother was relatively stable. However, the circuit court found that it
was clear the mother had failed to stabilize either her mental health condition or living
arrangements to the point that it would not be in the children’s best interests to return home. The
mother was provided more than the time required by Code § 16.1-283(C)(2) to remedy
substantially her situation. Because the circuit court relied on appropriate factors and pointed to
some evidence supporting its decision, we hold that the circuit court’s decision was not plainly
wrong or without evidence to support it.
The circuit court based its decision to terminate the father’s parental rights to J.Z. and
P.S. on Code § 16.1-283(C)(1). However, the father assigned error to a finding that the circuit
court erred in terminating his rights based on Code § 16.1-283(C)(2). Recently, our Supreme
Court highlighted the importance of an appellant’s framing of its assignment of error.
An assignment of error is not a mere procedural hurdle an appellant must clear in order to proceed with the merits of an appeal. Assignments of error are the core of the appeal. With the assignment of error, an appellant should “lay his finger” on the alleged misjudgment of the court below. Martin P. Burks, Common Law and Statutory Pleading and Practice § 425, at 827 (T. Munford Boyd ed., 4th ed. 1952). A properly aimed assignment of error must “point out” the targeted error and not simply take “a shot into the flock” of issues that cluster around the litigation. Plant Lipford, Inc. v. E.W. Gates & Son Co., 141 Va. -9- 325, 332, 127 S.E. 183, 185 (1925) (citations omitted). “An assignment of errors is in the nature of a pleading, and in the court of last resort it performs the same office as a declaration or complaint in a court of original jurisdiction.” Puckett v. Commonwealth, 134 Va. 574, 579, 113 S.E. 853, 854 (1922) (citation omitted). Like a well-crafted pleading, assignments of error set analytical boundaries for the arguments on appeal, provide a contextual backdrop for our ultimate ruling, and demark the stare decisis border between holdings and dicta.
Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., ___ Va. ___, ___, 795 S.E.2d 875, ___
(2017). Additionally, “[i]t is well-settled that a party who challenges the ruling of a lower court
must on appeal assign error to each articulated basis for that ruling.” Ferguson v. Stokes, 287
Va. 446, 452, 756 S.E.2d 455, 458 (2014) (quoting Manchester Oaks Homeowners Ass’n v. Batt,
284 Va. 409, 421, 732 S.E.2d 690, 698 (2012)). Thus, because the father failed to assign error to
the legal basis for the ruling of the lower court, this Court cannot review the matter and the
father’s argument is waived. See id.
Yet, assuming without deciding that father had properly assigned error, there is clear and
convincing evidence in the record to support the finding of the circuit court that the father,
without good cause, failed to maintain continuing contact with and to provide or substantially
plan for the future of the child for a period of six months after the child’s placement in foster
care, notwithstanding the reasonable and appropriate efforts of the agencies. The children were
removed from the mother’s care December 11, 2013. The father was found and contacted in
January 2014. The father was included on the foster care plans and met with the children from
January 2014 until September 2014. However, after September 5, 2014, the father did not
maintain contact with the children or the agency. He never visited for over a year. The record
disclosed that there were ample services offered and available to the father, but he chose not to
take advantage of them. “The law does not require the division to force its services upon an
unwilling or disinterested parent.” Barkey v. Commonwealth, Alexandria Dep’t of Human
- 10 - Servs., 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986). Therefore, we hold that the circuit
court did not err in terminating the father’s rights pursuant to Code § 16.1-283(C)(1).
Finally, the parents argue that the circuit court erred because BDSS failed to meet its
burden to show that no reasonable alternatives existed to termination, especially relative
placement. Specifically, the parents argue that each of the grandmothers had previously
petitioned for custody of the children and that BDSS did not provide any evidence with respect
to an alternative placement except to say that the grandmothers had filed petitions which were
later withdrawn.
Code § 16.1-283(A) provides, in pertinent part, that before terminating parental rights,
“the court shall give a consideration to granting custody to relatives of the child, including
grandparents.” “We have interpreted this provision to require DSS to consider all ‘reasonable
options for placement with immediate relatives’ as a prerequisite to a parental termination
decision.” Bagley v. City of Richmond Dep’t of Soc. Servs., 59 Va. App. 522, 524, 721 S.E.2d
21, 22 (2012) (quoting Hawthorne v. Smyth Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 136,
531 S.E.2d 639, 642 (2000)). However, considering all reasonable options for placement with
immediate relatives does not create an affirmative duty on BDSS to investigate the home of
every relative of the children, however remote, as a potential placement.” Sauer v. Franklin Cty.
Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 642 (1994).
We conclude that while the circuit court did not address this issue explicitly in its order, it
clearly implicitly gave sufficient consideration to granting custody to relatives of the child. First,
the record reflects that BDSS sent out a relatives search inquiry and not one person responded.
Additionally, the circuit court stated that the mother’s mother “was not an appropriate placement
because she hasn’t gone through the process. She withdrew her petition. And she hasn’t been
investigated. She hasn’t been identified.” The circuit court further stated that it did not think she
- 11 - was an appropriate placement “because the Department of Social Services hasn’t gone through
that investigative process because [Ms. Jackson] withdrew her petition for custody.” As such,
we hold that the circuit court did not err. Therefore, we affirm the circuit court’s decision to
terminate the respective residual parental rights of both the father and the mother.
Affirmed.
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