Octavious Person, a/k/a Octavius Person v. City of Norfolk Department of Human Services

• Court: Court of Appeals of Virginia
• Decided: March 26, 2019
• Docket: 0764181
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Russell, AtLee and Senior Judge Frank

OCTAVIOUS PERSON, A/K/A UNPUBLISHED

OCTAVIUS PERSON MEMORANDUM OPINION* v. Record No. 0764-18-1 PER CURIAM MARCH 26, 2019 CITY OF NORFOLK DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge

(Michael E. Grey; Grey & Arsenault, PC, on brief), for appellant.

(Erikka M. Massie, Assistant City Attorney; Michael L. Hockaday, Guardian ad litem for the minor child, on brief), for appellee.1

Octavious Person (father) appeals an order terminating his parental rights to his child and

approving the goal of adoption. Father argues that the circuit court erred by terminating his parental

rights because the City of Norfolk Department of Human Services (the Department) “failed to offer

reasonable and appropriate services” to father. 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. 1 On February 20, 2019, appellee filed a motion for leave to file its brief late and alleged that appellant did not send his brief to the correct address. Appellant did not note any objection to appellee’s motion. Upon consideration thereof, we grant appellee’s motion and accept its brief as timely filed. BACKGROUND2

“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 Cty. Dep’t of

Human Servs., 63 Va. App. 157, 168 (2014)).

In March 2011, the child entered foster care after the Department received a report that

the child’s mother and her paramour tied the child’s hands and feet together with shoelaces and

left the child in that condition overnight. On April 8, 2011, the City of Norfolk Juvenile and

Domestic Relations District Court (the JDR court) found that the child was abused or neglected.

The Department could not locate father when the child initially came into care; however,

after the child had been in foster care for three months, the Department learned that father was

incarcerated. Father had been convicted of sexual battery and later for failing to register as a

violent sex offender. Father’s expected release date from prison was February 23, 2015.

On October 10, 2012, the JDR court terminated father’s parental rights and approved the

goal of adoption.3 Father appealed the JDR court’s decision, and the circuit court denied the

Department’s petition to terminate father’s parental rights and the foster care plan with the goal

of adoption. The Department appealed the decision to this Court, which affirmed the circuit

court’s ruling. See City of Norfolk Dep’t of Human Servs. v. Person, Record No. 0936-13-1

(Va. Ct. App. Jan. 14, 2014).

2 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues raised by appellant. 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). 3 The JDR court also terminated mother’s parental rights to the child. -2- After this Court’s ruling, the Department continued to provide services to the child and

made additional efforts to work with father. While incarcerated, father elected not to participate

in services and programs that were offered at the prison where he was incarcerated. However,

father also spent time, sometimes willingly, in segregation at prison, where he could not

participate in services.

In January 2016, the circuit court found that father was a sexually violent predator and

civilly committed him to the custody of the Virginia Department of Behavioral Health and

Developmental Services (VDBHDS). The circuit court held annual reviews in 2017 and 2018

and recommitted father to the custody of the VDBHDS.

On May 10, 2017, the JDR court terminated father’s parental rights and approved the

goal of adoption. Father appealed to the circuit court.

On February 15, 2018, the parties appeared before the circuit court.4 The Department

presented evidence that the child had resided with the same foster parent since June 14, 2013,

and the foster parent had indicated that he wanted to adopt the child. The child had numerous

mental health, behavioral, and educational issues, which required therapy, hospitalization, and

medication. The child’s therapist testified that she could recall only three sessions in which the

child mentioned father, and it was a “very limited conversation.”

The Department also presented evidence concerning its efforts to work with father and

the limitations it encountered due to father’s civil commitment. Since the child entered foster

care in 2011, father had sent the child three letters and one birthday card; he had sent the

Department four letters. The Department communicated directly with father on “multiple

occasions,” and father, his counsel, and/or his guardian ad litem received copies of the foster care

service plans. After father was civilly committed, the Department tried to contact the facility,

4 Father appeared via videoconference. -3- but was unable to speak with anyone. The Department also attempted to obtain a copy of

father’s psychosexual evaluation to review the recommendations and results, but was denied

access to the evaluation.

Father testified that while he was in prison from January 2015 to February 2016, he did

not have access to pencils, pens, or paper because he was in isolation for refusing to comply with

the prison’s rules. At the beginning of his civil commitment, father could not have any contact,

including third-party contact, with children; however, he could contact his attorney and receive

mail from his attorney. As of November 2017, he was allowed to have contact with the child,

but father testified that he did not have any contact information for the child or the Department.

At the conclusion of all of the evidence and argument, the circuit court took the matter

under advisement and issued a letter opinion on March 29, 2018. The circuit court found that the

evidence supported the termination of father’s parental rights under Code § 16.1-283(C)(1) and

(C)(2), but not (B), and that termination of father’s parental rights was in the child’s best

interests. The circuit court recognized that father did not have a release date, but held that

father’s incarceration was “not the sole factor supporting termination of rights.” The circuit

court found that father’s failure to plan for the child’s future was “a strong indicator that he

would be unable to properly parent even if not confined.” The circuit court also found that father

had never had a “meaningful relationship” with the child and had not attempted to develop a

relationship with the child. On April 11, 2018, the circuit court entered orders terminating

father’s parental rights and approving the goal of adoption. This appeal followed.

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 Cty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018)

-4- (quoting Logan v. Fairfax Cty. Dep’t of Human 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 Cty. Dep’t

of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania Cty.

Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).

Father argues that the trial court erred in terminating his parental rights because the

Department failed to provide him with reasonable and appropriate services. Father contends that

the Department should have made more efforts to stay in contact with him and to preserve his

relationship with the child.

“‘Reasonable and appropriate’ efforts can only be judged with reference to the

circumstances of a particular case. Thus, a court must determine what constitutes reasonable and

appropriate efforts given the facts before the court.” Harrison v. Tazewell Cty. Dep’t of Soc.

Servs., 42 Va. App. 149, 163 (2004) (quoting Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14

Va. App. 333, 338 (1992)).

[W]hile long-term incarceration does not, per se, authorize termination of parental rights . . . it is a valid and proper circumstance which, when combined with other evidence concerning the parent/child relationship, can support a court’s finding by clear and convincing evidence that the best interests of the child will be served by termination.

Ferguson, 14 Va. App. at 340.

Contrary to father’s arguments, the Department was not required to offer him services

while he was incarcerated. See Harrison, 42 Va. App. at 163-64. This Court has held that “[i]t

would be patently unreasonable to require the Department, under such circumstances, to continue

to offer services.” Id. “[A]s long as he was incarcerated, the Department would have had no

avenue available to offer [father] services aimed at assisting him in regaining custody of the

child.” Id. at 164. -5- When the child first entered foster care and father was incarcerated within the

Department of Corrections, the Department established requirements for father to complete after

his expected release date of February 23, 2015. For example, the Department required that father

obtain and maintain stable housing and employment, as well as participate in counseling,

parenting classes, and a parenting capacity assessment. The Department maintained contact with

father by sending him letters and providing him copies of the foster care service plans. The

Department indicated that it would contact the correctional facility to determine what services

were available to father in prison, but because father did not follow the prison’s rules, he was

segregated from the general population and could not participate in any services. Father never

took advantage of any services available to him in prison.

Father was not released from prison as expected in February 2015; instead, he was civilly

committed for an indeterminable period. While he was civilly committed, father could not

complete the requirements necessary for him to gain custody of the child. The circuit court

found that “further communication between [the Department] and Father . . . would have been

futile in rehabilitating the parent-child relationship from a practical perspective.”

At the time of the circuit court hearing, the child had been in foster care for

approximately seven years. Father had not completed any of the requirements necessary for the

Department to consider reunification, and it was unknown when father would be released from

civil commitment to complete those requirements. See Code § 16.1-283(C)(2). Furthermore,

father had had very little contact with the child while the child was in foster care, and father had

made no plans for the child’s future. See Code § 16.1-283(C)(1). “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 Cty. Dep’t of

-6- Human Servs., 62 Va. App. 296, 322 (2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540 (1990)) (alteration in original).

Considering father’s situation, the circuit court did not err in holding that the

Department’s efforts to communicate with father and rehabilitate his relationship with the child

were reasonable and appropriate.

CONCLUSION

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

Affirmed.

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