Kristopher LaFlamme v. Virginia Beach Department of Human Services

• Court: Court of Appeals of Virginia
• Decided: April 13, 2021
• Docket: 1155201
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges O’Brien, Malveaux and Senior Judge Frank

KRISTOPHER LaFLAMME MEMORANDUM OPINION* v. Record No. 1155-20-1 PER CURIAM APRIL 13, 2021 VIRGINIA BEACH DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge

(Sharri D. Mapp-Jones; The Mapp Law Firm, PLLC, on brief), for appellant.

(Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City Attorney; Elena E. Ilardi, Associate City Attorney; Lisa Jackson, Guardian ad litem for the minor child; Phillips & Peters, PLLC, on brief), for appellee.

Kristopher LaFlamme (father) appeals an order terminating his parental rights to his

youngest child and approving the foster care goal of adoption. Father argues that the circuit court

“erred in finding the evidence sufficient to support the termination of [his] parental rights pursuant

to Virginia Code § 16.1-283(C)(2) and changing the goal from adoption/return home to solely

adoption . . . .” 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 circuit 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)).

In October 2018, Suzanne Pohlman (mother), who was homeless, gave birth to the child

in a tent in the woods.2 Mother went to an acquaintance’s house but refused to seek medical

treatment for herself or the child. Mother’s acquaintance contacted the authorities. The police

and emergency medical services spoke with mother, who indicated that the child had “barely

eaten, not urinated, or had any bowel movements.” The Virginia Beach Department of Human

Services (the Department) also responded, and the social worker noticed that the child was

“covered in blood” and his umbilical cord was fully attached and not clamped. At the time,

mother reported that the child’s biological father was “incognito” and refused to provide any

further information about him. Mother finally agreed to allow the child to be transported to the

hospital, where he remained for several days.

The Department subsequently learned that mother had a history of psychiatric illness and

had been diagnosed with acute psychosis, schizophrenia, and paranoid delusions. She also had a

criminal history and was not forthcoming with the Department about her past. She did not have

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant 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 Father was not present at the child’s birth because he and mother had ended their relationship before he was aware that she was pregnant. -2- a plan to care for the child. The Department removed the child from mother’s care, and the

Virginia Beach Juvenile and Domestic Relations District Court (the JDR court) entered an

emergency removal order and preliminary removal order, granting temporary legal custody to

the Department. The JDR court subsequently adjudicated that the child was abused or neglected

and entered a dispositional order. The Department tried to offer services to mother, but she was

uncooperative.3

The Department did not learn of father’s identity until June 2019. The Department

published a termination of parental rights notification in the local newspaper, and father’s

mother, the child’s paternal grandmother, contacted the Department. Father and the paternal

grandmother met with the Department, which arranged a paternity test. On June 27, 2019, the

JDR court reviewed the results of the paternity test and found that father is the child’s biological

father.

The Department learned that father has four older children, who had been in the paternal

grandmother’s custody since 2017.4 Father had limited contact with his four older children and

did not provide financial support for them.

The Department began offering services to father and reviewed its requirements with

him. Because father had a history of homelessness, the Department required father to maintain

safe and stable housing, as well as have sufficient financial resources to support himself and the

child. The Department also was concerned about father’s history of substance abuse and

untreated mental illness, so it referred father for a substance abuse evaluation and a parenting

3 Mother’s parental rights were terminated.

Father’s four older children have a different mother than the child who is the subject of 4

this appeal. -3- capacity evaluation. In addition, the Department required father to participate in visitations and

family partnership meetings and assisted him with transportation to those appointments.

On August 17, 2019, father participated in the parenting capacity evaluation with

Dr. Tuesday Smith. Father reported a history of depression and admitted using marijuana

regularly. Dr. Smith opined that father’s “habits [of drinking alcohol and using marijuana] likely

raise concerns regarding his future parenting capabilities.” Dr. Smith found that father had

“generally appropriate knowledge and skills for parenting.” Father’s strengths included “having

alternatives to corporal punishment, having a healthy self-concept as a parent, and having an

understanding of his children’s needs/emotions.” Dr. Smith’s concerns for father included

“placing unreasonable expectations on his children; he may also tend to expect rigid compliance

from them, at times.” Dr. Smith was further concerned about father’s poor personal hygiene,

“history of homelessness, history of substance abuse, history of depression, and his lack of

involvement with his four older children.” Dr. Smith recommended outpatient therapy,

substance abuse treatment, and parenting education classes.

Father participated in a substance abuse assessment. The evaluator recommended

substance abuse treatment and random drug screens. Father started substance abuse treatment in

December 2019. In January and February 2020, father tested negative for drugs.

Father also participated in the “Fathers in Training” program, which he described as

“positive and helpful.” Father regularly attended the weekly supervised visits with the child.5 At

first, the child had an “extreme adverse reaction” to father; however, over time, the child learned

to “self-sooth[e]” and play with father.

5 Father’s last in-person visit was in February 2020; his in-person visits stopped due to the COVID-19 pandemic. Father visited via video chats, but the child did “not engage.” Father had an opportunity to start in-person visits again but chose to continue with the video chats because he could not “take off during the day to attend visits.” -4- The child had lived with the same foster family since he was five days old. The child had

become “very much attached” to his foster parents and had adjusted “very well” to his

placement. The Department was concerned that attachment to a new caregiver would be “more

difficult with each passing week and month.”

In January 2020, the Department had “significant concerns regarding [father’s]

intermittent investment in services.” Father had not started outpatient therapy, and he had not

obtained a psychiatric evaluation to determine whether psychotropic medication would be

helpful. The Department also had been unable to verify father’s employment but subsequently

learned that he was unemployed. The Department was concerned about father’s ability to

maintain his residence without an income. Father lived in a mobile home, which had a bedroom

for the child. Father still needed certain baby items, such as a highchair and crib or toddler bed.

The Department was concerned about father’s ability to meet the child’s needs and whether he

was “fully committed to being a single parent for an active toddler,” especially because he was

not actively involved in his four older children’s lives.

On February 25, 2020, the JDR court terminated father’s parental rights and approved the

foster care goal of adoption. Father appealed the JDR court’s orders to the circuit court.

The parties appeared before the circuit court on August 26 and September 11, 2020.6 The

child’s guardian ad litem (the GAL) filed a report detailing her investigation. The GAL noted

that father had quit his job and was panhandling for approximately ten months until he obtained

employment shortly before the circuit court hearing. The paternal grandmother financially

assisted father with some of his expenses. The GAL reported that father did “not have a realistic

idea of his day-to-day life with [the child].” The GAL further informed the circuit court that the

6 The record does not include a timely filed transcript of the hearings or a written statement of facts in lieu of a transcript. On January 25, 2021, this Court denied father’s motion for an extension of time to file a late transcript. -5- child was doing “remarkably well” and was “very bonded with his foster family,” who planned

to adopt the child if parental rights were terminated. After hearing the evidence and arguments,

the circuit court approved the foster care goal of adoption and found that it was in the child’s best

interests to terminate father’s parental rights under Code § 16.1-283(C)(2). The circuit court

entered a final order on September 11, 2020. This appeal followed.

ANALYSIS

Father argues that the circuit court erred in terminating his parental rights and approving

the foster care goal of adoption. “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)).

The record does not include timely filed transcripts from the circuit court hearings or a

written statement of facts in lieu of a transcript. See Rule 5A:8. Father endorsed the circuit

court’s final order as “Seen and Object.” “Ordinarily, endorsement of an order ‘[s]een and

objected to’ is not specific enough to meet the requirements of Rule 5A:18 because it does not

sufficiently alert the trial court to the claimed error.” Canales v. Torres Orellana, 67 Va. App.

759, 771 (2017) (en banc) (quoting Herring v. Herring, 33 Va. App. 281, 286 (2000)); see also

Courembis v. Courembis, 43 Va. App. 18, 26 (2004) (“Such an objection is not sufficient under

Rule 5A:18 to preserve an issue for appeal.”). “Such an endorsement is sufficient to satisfy Rule

5A:18 only if ‘the ruling made by the trial court was narrow enough to make obvious the basis of

-6- appellant’s objection.’” Canales, 67 Va. App. at 771 (quoting Herring, 33 Va. App. at 286).

Assuming without deciding that father preserved his arguments for appeal, we find that the

circuit court did not err in terminating father’s parental rights under Code § 16.1-283(C)(2) and

approving the foster care goal of adoption.

Code § 16.1-283(C)(2) states that a court may terminate parental rights if:

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.

“[S]ubsection C termination decisions hinge not so much on the magnitude of the

problem that created the original danger to the child, but on the demonstrated failure of the

parent to make reasonable changes.” Yafi, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t

of Soc. Servs., 46 Va. App. 257, 271 (2005)).

Father argues that he complied with the Department’s requirements and substantially

remedied the conditions that required the child’s continued placement in foster care. Father

emphasizes that he had housing and sufficient financial resources. He had maintained contact

with the Department and consistently visited the child. In addition, he completed a parenting

capacity evaluation and a substance abuse assessment. His drug screens were negative, and he

participated in substance abuse treatment. Father contends that the circuit court erred by

terminating his parental rights and changing the foster care goal from return home/adoption to

solely adoption. We disagree.

The Department and the GAL had numerous concerns about father’s ability to parent the

child. Father reported to Dr. Smith that he had a history of depression and other mental health

concerns, so Dr. Smith recommended outpatient therapy. The GAL determined that father

-7- attended only two counseling appointments before he discontinued therapy. In addition, father

did not show financial stability. He admittedly engaged in panhandling for months, and the

paternal grandmother told the GAL that she paid some of father’s expenses. Furthermore,

despite participating in the “Fathers in Training” program, father did not have a plan in place for

the child.

At the time of the circuit court hearing, the child had been living with the same foster

family for approximately twenty-two months. By all accounts, the child was especially attached

to his foster mother, who had been his primary caregiver since he was five days old. Even

though the Department had offered numerous services to father, he still was not in a position to

care for the child. “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 v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 322 (2013)

(quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)).

Considering the record before us, the circuit court did not err in terminating father’s parental

rights and approving the foster care goal of adoption.

CONCLUSION

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

Affirmed.

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