COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Ortiz and Causey UNPUBLISHED
Argued at Fairfax, Virginia
KEELEY REID MEMORANDUM OPINION* BY v. Record No. 0985-21-4 JUDGE DANIEL E. ORTIZ APRIL 12, 2022 WARREN COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WARREN COUNTY Dennis L. Hupp, Judge Designate
(Jason E. Ransom, on brief), for appellant. Appellant submitting on brief.
Caitlin Jordan (Robert F. Beard; Sarah Orris, Guardian ad litem for the minor child; Robert F. Beard, PLC; Orris Law Firm, on brief), for appellee.
Keeley Reid (“mother”) appeals the termination of her parental rights with respect to her
son (“J.P.”) by the Circuit Court of Warren County. On appeal, she argues the circuit court erred
in terminating her parental rights under Code § 16.1-283(C)(2) because the Warren County
Department of Social Services (“the Department”) did not show by clear and convincing
evidence that it provided mother with reasonable services. Mother argues that because the
Department failed to satisfy the statutory criteria, this Court should reverse the circuit court’s
termination decision. However, because the record contains sufficient evidence to support the
circuit court’s decision that the Department provided reasonable services under the particular
circumstances, we affirm the termination of mother’s parental rights.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND1
On May 8, 2020, thirty-one-year-old mother arrived at the Warren Memorial Hospital
emergency department in Front Royal, Virginia, with four-year-old J.P. Mother told the hospital
staff she had worms in her skin, hair, mouth, and nose and reported chest pain. She said she
feared J.P. also had worms. During mother’s examination, she repeatedly tried to show the
examining doctor the worms. The examining doctor did not find worms but observed track
marks and scabs on mother’s arm and suspected mother was delusional. Mother admitted to
hospital staff that she used methamphetamine and heroin in the days before coming to the
hospital. Hospital staff screened mother’s urine sample for drugs, and mother tested positive for
methamphetamine, opiates, and amphetamine. Hospital staff also noticed J.P. was still drinking
from a baby bottle and wearing diapers at four years old.
Concerned for J.P.’s welfare, hospital staff contacted Child Protective Services. Family
Services Specialist Rachel Oden went to the hospital to investigate the situation. At the hospital,
Oden spoke with J.P.’s maternal grandfather, Walter Peacemaker, who drove mother and J.P. to
the hospital. Peacemaker said he would be able to care for J.P. if mother was admitted to the
hospital. When Oden spoke with mother about CPS’s involvement, mother admitted drug use.
During this conversation, mother became angry and was yelling and pacing around the room.
She left the hospital twice during the conversation and refused to sign a safety plan placing J.P.
with Peacemaker. Due to mother’s erratic behavior and refusal to sign the safety plan, the
1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues mother 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 determined it could no longer place J.P. with Peacemaker. The Department assumed
emergency custody of J.P. that same day and placed him in a therapeutic foster home.
On May 11, 2020, the Department filed a petition for removal and the juvenile and
domestic relations district court (“the JDR court”) granted the Department temporary custody of
J.P. in an emergency removal hearing. In the meantime, Family Services Specialist Ana Portillo
called three relatives mother gave the Department contact information for, but each relative was
unable to care for J.P. On May 15, 2020, the JDR court held a preliminary removal hearing, and
it again granted the Department custody of J.P. Also that day, Portillo met with mother to
complete a visitation plan and discuss information releases. The visitation plan allowed mother
weekly, supervised visits with J.P. as well as phone and FaceTime calls. Portillo summarized
this meeting in a letter to mother on May 19, 2020, and asked mother for contact information for
other possible relative placements.
On June 4, 2020, Portillo administered a urine drug screen, and mother tested positive for
amphetamine, methamphetamine, and methadone. On June 10, 2020, Portillo sent relative letters
asking known relatives if they could provide help and support to mother and J.P. Meanwhile, on
May 26 and June 2, 2020, mother missed or was over ten minutes late to scheduled visitation
video calls with J.P.
On June 12, 2020, the JDR court entered an adjudicatory order finding J.P. was abused or
neglected and ordered the Department to prepare a foster-care plan (“the plan”). On June 16,
2020, Portillo and mother worked together to prepare the plan. The plan’s goal was to return J.P.
home with a concurrent goal of relative placement. The plan required mother to avoid drug use,
submit to drug screens, complete evaluations to determine appropriate services, complete
background checks, sign information releases, and provide the Department with financial
information. Mother was also to prepare and follow a visitation plan consistently, obtain suitable
-3- accommodations, and attend and participate in all meetings regarding J.P., including Family
Assessment and Planning Team (“FAPT”) meetings. The plan required the Department to
provide drug screens, arrange visitation, invite mother to meetings, and pursue relative
placements. The plan stated if mother “wishes to receive substance abuse counseling or
treatment she will advise the [Department] foster care worker of her request in writing” and the
Department will consider the proper level of treatment. After they prepared the plan, mother
continued to miss or appear late to video calls with J.P. on June 16, July 7, July 14, and July 21,
2020.
On July 2, 2020, the JDR court held a dispositional hearing and entered an order that
transferred custody of J.P. to the Department and approved the plan. On the Department’s
motion, the JDR court issued mother a three-ring binder, known as a “parent binder,” in which
she was to keep all documentation. She was ordered to bring the parent binder to all meetings.
After court, Portillo administered a drug test and mother again tested positive for
methamphetamine and methadone. Portillo and mother scheduled a follow-up appointment on
July 9, 2020, to review the plan and work on transitioning from virtual visitation to in-person
visitation.
However, on July 9, 2020, a few minutes before the appointment, mother told Portillo she
could not make it because she did not have transportation. They rescheduled the appointment to
the next day, but mother canceled this appointment as well and told Portillo she would contact
her to reschedule. Mother did not do so. Instead, Portillo emailed and called mother again on
July 22, 2020, to reschedule and inform mother she scheduled a required parental capacity
evaluation for August 6, 2020. The Department would have used this evaluation to determine
the type and level of services a parent should receive. It would have included substance abuse
-4- and mental health components. Portillo could not reach mother but sent a letter confirming the
parental capacity evaluation appointment.
On July 23, 2020, Portillo learned mother was arrested the day before for drug
possession. Due to mother’s incarceration, Portillo canceled the upcoming evaluation. Mother
signed a plea agreement related to both the July and other prior charges, was granted bond, and
was released on August 5, 2020. Pursuant to the plea agreement, mother was on supervised
probation for two years.
Without the Department’s involvement, but compelled by her bond conditions, mother
then began an inpatient drug rehabilitation program at Bethany Hall in Roanoke, Virginia, where
she stayed until October 19, 2020. During this time, mother was drug tested weekly and
participated in therapy and Narcotics Anonymous (“NA”) meetings. While the Department
knew mother was in this program, Portillo stated she could not remember whether mother
informed the Department she was being drug tested. While mother was at Bethany Hall, Portillo
contacted mother again on September 2, 2020, to create another visitation plan. Mother had a
successful virtual visit with J.P. on September 10, 2020. However, she never visited J.P. again
because she missed visitation on September 17 and 24, 2020, and either failed to explain her
absence or cited internet connection issues.
On October 14, 2020, Portillo called mother to discuss creating another new visitation
plan so mother could resume visitation after she missed visits. Mother told Portillo she would be
unable to resume visitation until she was settled into Carter House, a sober-living home in
Roanoke she would transition to after completion of the Bethany Hall program on October 19,
2020. Portillo asked mother to notify the Department when she could resume visits. On October
15, 2020, Portillo sent mother a letter summarizing the phone conversation and informing mother
-5- it was important for her to contact the Department when she was settled into Carter House so the
parental capacity evaluation could be rescheduled, and visitation could resume.
On October 16, 2020, the JDR court held a foster care review hearing and entered an
order that continued the Department’s custody of J.P. Mother failed to appear at the hearing.
Over the next month, the Department did not hear from mother until mother called
Portillo on November 22, 2020, and left a voicemail. Mother updated the Department on her
new address at Carter House, the NA meetings she was attending, and her work schedule. She
requested that visitation resume. On November 24, 2020, Portillo returned mother’s call and left
a voicemail. Portillo did not hear from mother until Portillo called mother again on December 2,
2020. During this conversation, mother said she did not get the prior voicemail because her
phone was turned off. Portillo explained to mother that she needed to complete the parental
capacity evaluation before visitation could resume. Portillo said mother told her she was still
taking NA classes at Carter House, but Portillo was unsure if mother was being drug tested at the
time.
After this, mother sent Portillo updated contact information. On December 9, 2020,
Portillo sent mother an invite to a FAPT meeting. On December 7, 2020, Portillo sent mother
pictures for J.P.’s birthday, and mother did not respond. On the day of the FAPT meeting,
mother said she was unable to attend because she could not figure out how to log into the Zoom
meeting.
Mother moved out of Carter House on January 5, 2021, but continued to reside in
Roanoke. Five days later, she was arrested for methamphetamine possession and a bond
violation when she was a passenger in a vehicle that had a pipe with residue in the back seat.
Mother claimed the pipe did not belong to her, and she was unaware it was in the vehicle. An
investigator also found a syringe in mother’s purse. After mother’s arrest, she was denied bond
-6- by a magistrate, and her attorney refused to file for bond with the court because mother was
already released on bond for her earlier charges. Mother remained incarcerated until July 22,
2021, when the charge was dismissed. While incarcerated, she participated in parenting and
substance abuse classes but had no contact with the Department. After mother’s release, she
lived with a substance abuse counselor in his home in Roanoke and regained employment.
Meanwhile, Portillo learned of mother’s arrest and incarceration in mid-January. While
mother was incarcerated, Portillo prepared a new foster-care service plan (“the new plan”) on
January 25, 2021. The new plan changed the goal from reunification or relative placement to
adoption because mother “ha[d] made minimal progress completing the responsibilities listed on
the plan.” The new plan did not pursue relative placement because known relatives, including
Peacemaker, were unwilling or unable to care for J.P.
On January 27, 2021, the Department filed a petition for a permanency planning hearing
with the new plan, requesting that the JDR court change the permanent goal from return home to
adoption. On March 23, 2021, the Department filed a petition requesting the JDR court
terminate mother’s parental rights to J.P. The JDR court held a permanency planning and
termination of parental rights hearing on April 23, 2021. After hearing the evidence, the JDR
court terminated mother’s parental rights under Code § 16.1-283(C) and approved the goal of
adoption. Mother then appealed to the circuit court.
The circuit court heard the appeal on September 7, 2021. After hearing testimony and
receiving evidence, the circuit court found by clear and convincing evidence it would be in J.P.’s
best interests to terminate mother’s parental rights. The circuit court noted J.P. had been in
foster care for sixteen months and was doing very well in a stable home. The circuit court then
found by clear and convincing evidence mother had been unable or unwilling to remedy
substantially the conditions that led to removal. Although the circuit court acknowledged
-7- mother’s progress, it was concerned by mother’s “track record.” Specifically, the circuit court
pointed to mother’s drug use and arrests when she was not in confinement or a controlled
environment, her inconsistent contact with J.P. and the Department, and her lack of stability due
to her probation conditions and lack of suitable housing. The circuit court also found the
Department had offered mother services and worked with mother on the plan to return J.P. home,
but mother failed to meet “a number of the terms of that agreement.” The circuit court then
terminated mother’s parental rights under Code § 16.1-283(C)(2) and approved the goal of
adoption. This appeal followed.
ANALYSIS
The trial court has “broad discretion in making the decisions necessary to guard and to
foster a child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328 (1990). Upon review of a
termination decision, this Court presumes the trial court “thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.” Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7 (2005) (quoting
Farley, 9 Va. App. at 329). Given this, we will not disturb a trial court’s judgment based on
evidence heard ore tenus “unless plainly wrong or without evidence to support it.” Id. (quoting
Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)). When reviewing
termination decisions, “we view the evidence in the light most favorable to the prevailing party
below.” Harrison v. Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 151 (2004).
A. A Department Must Make Reasonable and Appropriate Efforts to Assist Mother Under Code § 16.1-283(C)(2).
On appeal, mother alleges the Department provided insufficient services to assist her in
remedying the conditions that led to J.P.’s removal, specifically her substance abuse problems.
She argues Code § 16.1-283(C)(2) contemplates more than advising a parent she can request
substance abuse services in writing. Mother does not argue termination is not in the child’s best -8- interests and admits that she needed more time, and the Department’s proper assistance, to
remedy substantially the conditions that led to removal.
Under Code § 16.1-283(C)(2), a court may terminate residual parental rights when it
finds based on clear and convincing evidence that (1) termination is in the child’s best interests
and (2) the parent was unwilling or unable to remedy substantially the conditions that led to
removal within a reasonable period of time not to exceed twelve months. Additionally,
termination is only appropriate under Code § 16.1-283(C)(2) when a department shows by clear
and convincing evidence that a parent was provided with “reasonable and appropriate efforts of
social, medical, mental health or other rehabilitative agencies” to remedy the conditions that led
to a child’s foster care placement.
Whether a department made reasonable and appropriate efforts depends on “the
circumstances of a particular case.” Harrison, 42 Va. App. at 163 (quoting Ferguson v. Stafford
Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 338 (1992)). Therefore, a court must necessarily
determine whether sufficient efforts are made based on “the facts before the court.” Id. (quoting
Ferguson, 14 Va. App. at 339).
In its efforts, a department is “not required to force its services upon an unwilling or
disinterested parent.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 323
(2013) (quoting Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 243 (1982)). Further, a
department has no obligation to offer services to a parent who is incarcerated. Harrison, 42
Va. App. at 163-64 (holding it would be “patently unreasonable” to require a department to offer
services to a parent who is in long-term custody). This Court in Harrison stated this rule exists
because a parent’s long-term custody leaves a department “no avenue” to offer services aimed at
reuniting that parent with a child. Id. at 164. However, a parent held in pre-conviction
incarceration may be entitled to reasonable services under the circumstances before a department
-9- changes the goal to adoption. See Cain v. Commonwealth ex rel. Dep’t of Soc. Servs. for City of
Roanoke, 12 Va. App. 42, 45-46 (1991) (reversing the trial court’s termination of parental rights
when the department did not contact a parent while she was held in pre-conviction incarceration
for most of the time between removal and the department’s change-of-goal to adoption). This
Court in Cain reasoned that unlike a case of post-conviction incarceration, a parent who is
awaiting trial will not necessarily be incarcerated thereafter and made unavailable for
rehabilitative services. See id. at 46.
B. The Circuit Court Did Not Err in Terminating Mother’s Parental Rights when There Was Sufficient Evidence the Department Made Reasonable and Appropriate Efforts to Assist Mother.
Here, the circuit court found termination was in J.P.’s best interests and mother failed to
remedy the conditions that led to removal notwithstanding the Department’s reasonable and
appropriate efforts to assist her. Despite mother’s argument, we find the record supports a
finding by clear and convincing evidence that the Department made reasonable and appropriate
efforts to assist mother. In the over eight months between removal and the Department’s
change-of-goal to adoption in late January 2021, Portillo attempted to maintain contact with
mother even though mother was either incarcerated or irregularly responsive. In the months
before Portillo prepared the new plan, she contacted mother by telephone and mail to urge her to
comply with the plan, maintain consistent visitation with J.P., complete a parental capacity
evaluation, and attend meetings regarding J.P. Despite these efforts, mother did not meet the
plan’s requirements and did not reciprocate contact with the Department as she was incarcerated
or transitioning to different living situations. While mother sometimes explained her absences,
other times she did not.
Even though the record shows evidence of mother’s improvement in controlled living
environments at various times over the eight months, mother did not fully communicate this
improvement to the Department or meet the plan’s specific requirements. And although the - 10 - record shows evidence of mother’s improvement beyond the twelve-month period, mother’s
various transitions presented a barrier to her receiving the Department’s offered services, such as
scheduled visitation with J.P., within the relevant time period.
Unlike the facts of Cain, mother was not in jail for most of the time between removal and
the Department’s change-of-goal to adoption without the Department contacting her to offer
suggestions for rehabilitation. Mother was in jail from July 22, 2020, to August 5, 2020, and
January 10, 2021, through termination on April 23, 2021. Before and in between mother’s
incarcerations, Portillo met with mother and contacted her multiple times to urge her to comply
with the plan’s requirements. Portillo particularly urged mother to complete a parental capacity
evaluation that contained a substance abuse component. Additionally, the plan that mother and
Portillo reviewed together on June 16, 2020, required mother to submit to drug testing and stated
mother needed to request substance abuse services in writing. While requiring a parent
struggling with substance abuse issues to request services in writing may not be the most
effective method of assistance, the Department informed mother of this treatment option and was
not required to force substance abuse services on mother.2 Under these circumstances, we find
the record supports the circuit court’s determination the Department made reasonable and
appropriate efforts to assist mother in the months between removal and its change-of-goal to
adoption.
2 Aside from Portillo’s continued attempts to schedule the parental capacity evaluation, the record contains no evidence the Department encouraged mother to take advantage of substance abuse services, even though it knew mother had drug problems. While the Department is not required to force substance abuse services on a disinterested parent, it surely could offer more proactive facilitation of these services, beyond the uniform substance abuse services language contained in the plan, to parents facing these issues. - 11 - CONCLUSION
The circuit court did not err in finding the Department made reasonable and appropriate
efforts to assist mother as required by Code § 16.1-283(C)(2). Therefore, the circuit court did not
err in terminating mother’s parental rights. For the foregoing reasons, we affirm the circuit
court’s decision.
Affirmed.
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