Martin Maurice Yates v. Buckingham County Department Social Services

• Court: Court of Appeals of Virginia
• Decided: May 30, 2023
• Docket: 1206222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, White and Retired Judge Frank* UNPUBLISHED

MARTIN MAURICE YATES MEMORANDUM OPINION** v. Record No. 1206-22-2 PER CURIAM MAY 30, 2023 BUCKINGHAM COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY Donald C. Blessing, Judge

(Matthew J. Friedman; Elder, Watkins & Friedman, P.C., on brief), for appellant. Appellant submitting on brief.

(E.M. Wright, Jr.; M. Brooke Teefey, Guardian ad litem for the minor child; Teefey Law, P.C., on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Martin Maurice Yates (father) appeals the circuit court’s orders terminating his parental

rights under Code § 16.1-283(B) and (E)(iv) and approving the foster care goal of adoption. Father

argues that the circuit court erred by finding that the termination of his parental rights was in the

child’s best interests. He further asserts that the circuit court erred in finding that the Buckingham

County Department of Social Services (the Department) had proven by clear and convincing

evidence that he “had been unable or unwilling within a reasonable period of time not to exceed 12

months from the date of placement in foster care to remedy substantially the conditions which led to

or required continuation of his child’s placement in foster care, notwithstanding the rehabilitative

efforts of the agencies involved.” Finally, father contends that the circuit court erred in finding that

* Retired Judge Frank took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ** This opinion is not designated for publication. See Code § 17.1-413. he “subjected the child to aggravated circumstances.” After reviewing the record and briefs of the

parties, we conclude that the circuit court did not err. Accordingly, we affirm the circuit court’s

judgment.

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)). Here, the Department was the prevailing party.

Father and Loretta Lynn Carr (mother) are the biological parents to the child who is the

subject of this appeal.2 The child was born prematurely in March 2021 and spent the first “59 to

69” days in the hospital. The Infant & Toddler Connection (I&TC) provided early intervention

services to the family, including physical and speech therapy to the child.

In early November 2021, a therapist saw a burn mark on the then-seven-month-old child’s

right lower back. The child’s grandmother told the therapist that the child had rolled into a space

heater in father’s office in the “shed building” where he lived3; however, I&TC had documented

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues father has raised. “To 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 Mother also appealed the circuit court’s orders terminating her parental rights and approving the foster care goal of adoption. See Carr v. Buckingham Cnty. Dep’t of Soc. Servs., Record No. 1186-22-2. 3 The shed was on the same property as mother’s house. -2- that the child needed assistance to roll over. The grandmother also told the therapist that a doctor

had seen the wound and prescribed medicine.4

In addition to noting the child’s burns, the therapist documented the living conditions of

mother’s home. Her house had fleas, which prevented the therapist from working with the child on

the floor. The therapist worked with the child in father’s shed once in November 2021. The

therapist noted that there were bees and ladybugs that “continuously needed to be swatted away”

while she worked with the child. Father did not “engage” in the therapy and retrieved toys for the

child “reluctantly.” When asked how I&TC could support the family, father responded by saying

that “he just needed money.”

In early December 2021, mother took the child to the pediatrician for a “regularly scheduled

appointment.” The pediatrician noticed a “healing burn” on the child’s buttocks and lower back and

sent the child to the hospital for treatment. The hospital personnel determined that the child had

burn marks, in “various stages of healing,” on her back, hip, and buttocks, as well as a subdural

hematoma.

According to medical personnel, the child’s injuries were “not fresh” and “not consistent”

with diaper rash as mother claimed. The doctors suspected that the child was physically abused

because she could not “crawl over to something hot and burn herself accidentally,” and the location

of the burn was “an atypical location for an accidental burn.” After receiving conflicting reports

about the causes of the injuries and threats to leave, the hospital reported the incident to the

Department.

The Department spoke with mother and convinced her to allow the hospital to conduct

additional tests. Mother initially told hospital personnel and the Department that she and father did

4 When asked about the prescription, the grandmother showed the therapist an “empty tube of Vaseline”; she also said that there was a “cream,” but she did not know where it was. -3- not own a space heater and the child’s injuries were a result of diaper rash. She next reported that

an uncle used a “diaper brand that burned [the] child around Thanksgiving.” Then, she claimed that

a diaper that she placed on the child caused a “chemical burn.” Next, she blamed father and her

brother for the child’s burns, and then, she said that father burned the child recently and assaulted

her. Finally, she told the Department that she was in jail when the child was burned.

In addition to the burns, the hospital documented its concerns that the child was

developmentally delayed and underweight. Although the child was eight months old, she

functioned developmentally as a two or three month old. The child was “unable to hold herself

upright, unable to hold her head up, unable to crawl, unable to roll both ways, and the back of her

head was extremely flat.” In addition, the child’s weight was fluctuating and in the third percentile

for her age.

During its investigation, the Department discovered that child protective services from

several localities had been involved with one or both parents since 2006. Father had three children

from a previous relationship, and mother had five children from a previous relationship. Together,

father and mother had four children, including the child who is the subject of this appeal.5 The

parents did not have custody of any of their children.

Considering the parents’ history with child protective services, the severity of the child’s

injuries, the parents’ inability to explain how the injuries occurred, the child’s developmental

delays, and the lack of viable relative placement options, the Department petitioned for removal of

the child. The Buckingham County Juvenile and Domestic Relations District Court (the JDR court)

granted the Department’s petition and entered emergency and preliminary removal orders. The

JDR court subsequently adjudicated that the child was abused or neglected and prohibited the

5 One of the parents’ children died at 25 days old of Sudden Infant Death Syndrome (SIDS). -4- parents from having any contact with her. On February 15, 2022, the JDR court terminated father’s

parental rights and approved the foster care goal of adoption. Father appealed the JDR court’s

rulings to the circuit court. After the JDR court hearing, the Department made a disposition of

“Founded, level 1 for medical neglect” against father.6

At the circuit court hearing, the Department presented evidence, including photographs, of

the child’s burns. Dr. Jennifer Andrews, an expert in child abuse, saw the child in the emergency

room in December 2021 and testified about her injuries which Dr. Andrews determined were burns.

Dr. Andrews noted that the burns were “irregular” in shape and located in an area that clothing or

diapers typically protect. Further, because the child was “not independently mobile,” she could not

have sustained the burns on her own; therefore, Dr. Andrews opined that “the absence of a history

of burn [was] indicative of physical abuse.” In addition, the location of the burns “on two separate

planes,” her left buttock and her right lower back and right hip, suggested that she was burned twice.

Dr. Andrews testified that the burns the child sustained would have caused her “a lot of pain.”

Dr. Andrews recalled that the parents presented conflicting accounts of the child’s injuries.

Father reported that the child had been burned and had received medical treatment, but mother

denied that the child’s injuries were burns. Mother claimed the child had diaper rash. Considering

the conflicting stories about whether the child had received medical treatment, Dr. Andrews opined

that it was “medically indeterminate” whether the child had been medically neglected. Nonetheless,

the burns suggested that the child had been physically abused.

In addition to the burns, medical providers were concerned about the child’s development.

Dr. Andrews opined that the child suffered from nutritional neglect because the child was “small,”

but made “improvements in her growth” after being placed in foster care, suggesting that she was

6 The Department determined the allegations of physical abuse were “unfounded” against father. -5- not eating enough before her hospitalization. At a follow-up appointment two weeks after the

December hospital visit, the child’s burns were healing, and she had gained a “substantial amount”

of weight. The child also “had made over a month of advancement with her development.” At the

time of the circuit court hearing, the child was “thriving” in foster care; she was walking, climbing,

talking, and holding a cup.

At trial, father admitted to accidentally burning the child with the space heater in his office.

He acknowledged he had not taken her to the hospital immediately because he was worried that she

“could be taken away.” Father claimed that he fell asleep, and the child, who was in a pack and

play, rolled too close to the heater. When he awoke the next morning, he noticed that she had been

burned.

Mother allegedly scheduled a telehealth appointment for the child after she discovered the

burns but admitted that she initially thought the mark was diaper rash. She claimed that she “found

out during the telemed visit” that father burned the child. Mother and father testified that the

telehealth provider gave mother a prescription for the burns, and mother took the child to a

follow-up appointment with a pediatrician in December 2021. When mother took the child back to

the doctor in December, father thought the burn was “getting better.”

Father claimed that the child was “healthy,” “doing pushups,” and had “only lost a little bit

of weight.” According to mother, the child had experienced “problems gaining weight ever since

she was born.” Mother explained that doctors had been “monitoring” the child’s weight and told

her to “fortify her formula” by adding “vitamin drops . . . and a bunch of other supplements to help

her gain weight,” which mother said she did.

Father refused to provide his current address. Father testified that the Department did not

provide him with any services or opportunities to visit with the child. The Department explained

that it offered him no services because of “the aggravated circumstances and severity of the abuse

-6- and neglect.” The Department clarified that the aggravated circumstances included not only the

severity of the burns, but the failure to seek treatment.

After hearing all the evidence and arguments, the circuit court found “a lot of confusion”

and “contradiction” in the parents’ testimony. Noting the contradiction concerning the child’s

ability to roll over on her own, the circuit court questioned why anyone would place a portable

heater so close to such a young child if she could have rolled over and burned herself. The circuit

court was particularly troubled by photographs showing “a horrible looking blister that’s probably

going to be a disfigurement.” After finding that father had “an inadequate home setting and the

mother doesn’t seem to have much better,” the circuit court also found that the child’s “lack of

nourishment” contributed to her “lack of development.” Considering the “burns, apparent neglect,

[and] lack of nourishment,” the circuit court found that it was in the child’s best interests to

terminate father’s parental rights. The circuit court terminated father’s parental rights under Code

§ 16.1-283(B) and (E)(iv) and approved the foster care goal of adoption. Father appeals.

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)).

After hearing all of the evidence and arguments, the circuit court terminated father’s

parental rights under Code § 16.1-283(B) and (E)(iv). Father argues on appeal that the evidence

-7- was insufficient to support the termination under Code § 16.1-283(C)(2) and (E)(iv); however, the

circuit court did not terminate his parental rights under Code § 16.1-283(C)(2). Father presents no

challenge to the sufficiency of the evidence to support the termination under Code § 16.1-283(B).

Father’s failure to challenge the alternate basis for the circuit court’s termination decision renders

moot his claims regarding termination under Code § 16.1-283(E)(iv) because even if we agreed

with father regarding the sufficiency of the evidence to support termination under Code

§ 16.1-283(E)(iv), his parental rights would remain terminated as a result of the trial court’s

unchallenged decision to terminate his parental rights under Code § 16.1-283(B). Furthermore,

issues not properly raised in father’s assignments of error will not be considered. Rule 5A:20.

Terminations under Code § 16.1-283(B) and (E)(iv) provide distinct, “individual bases upon

which a petitioner may seek to terminate residual parental rights.” City of Newport News Dep’t of

Soc. Servs. v. Winslow, 40 Va. App. 556, 563 (2003). “[I]n ‘situations in which there [are] one or

more alternative holdings on an issue,’ the appellant’s ‘failure to address one of the holdings results

in a waiver of any claim of error with respect to the court’s decision on that issue.’” Johnson v.

Commonwealth, 45 Va. App. 113, 116 (2005) (quoting United States v. Hatchett, 245 F.3d 625,

644-45 (7th Cir. 2001)). “That said, we still must satisfy ourselves that the alternative holding is

indeed one that (when properly applied to the facts of a given case) would legally constitute a

freestanding basis in support of the trial court’s decision.” Id. at 117. “But, in making that decision,

we do not examine the underlying merits of the alternative holding—for that is the very thing being

waived by the appellant as a result of his failure to raise the point on appeal.” Id.; see also Ferguson

v. Stokes, 287 Va. 446, 452-53 (2014); Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409,

422 (2012).

In addition to Code § 16.1-283(E)(iv), the circuit court terminated father’s parental rights

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

-8- 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.

Father admitted that he burned the child when he placed a portable heater too close to her pack

and play and then did not seek medical attention for her burns because he was worried that she

“could be taken away.” The circuit court found that accepting father’s version of events as true

led to the conclusion that he had placed the child in “a very extreme situation of danger and

peril.” The circuit court further noted that no one sought immediate medical attention for the

child, who sustained “a horrible looking blister that’s probably going to be a disfigurement.”

The circuit court heard evidence that following the injury to the child, a therapist

assigned to the family determined that the father did not engage in the home therapy and

reluctantly interacted with the child. When asked how the agency could help the family, the

father replied that he just needed money.

After finding that father’s shed was “an inadequate home setting,” the circuit court

concluded that the child’s environment and “lack of nourishment” “impeded” her development.

The Department presented evidence that the child was underweight and developmentally delayed

when she entered foster care, yet father claimed that the child was “doing pushups” and “healthy.”

He failed to recognize the child’s condition. Within two weeks of her foster care placement, she

had gained “a substantial amount” of weight and progressed developmentally. At the time of the

circuit court hearing, the guardian ad litem reported that the child was “thriving” in foster care.

-9- The trial court properly considered the father’s demeanor presented at trial. The father was

argumentative, non-responsive, and disrespectful. The trial court found remarkable that the father

refused to give his address. The trial court heard testimony from the father that the child was

healthy and strong despite expert testimony to the contrary.

After considering the totality of the circumstances, the circuit court found that it was in

the child’s best interests to terminate father’s parental rights. “Without reviewing the correctness

of the circuit court’s determination, we are satisfied that, if correct,” father’s parental rights could

have been terminated under Code § 16.1-283(B). Ferguson, 287 Va. at 453. “Accordingly, this

ground forms a separate and independent basis to affirm the circuit court’s ruling and we will not

reverse it.” Id.

CONCLUSION

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

Affirmed.

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