Ruyekia Silver v. Norfolk Department of Human Services

• Court: Court of Appeals of Virginia
• Decided: February 23, 2021
• Docket: 0830201
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Malveaux and Senior Judge Frank UNPUBLISHED

RUKEYIA SILVER MEMORANDUM OPINION* v. Record No. 0830-20-1 PER CURIAM FEBRUARY 23, 2021 NORFOLK DEPARTMENT OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge

(Romy L. Radin, on brief), for appellant.

(Bernard Pishko, City Attorney; Heather L. Kelley, Deputy City Attorney; B. Cullen Gibson, Guardian ad litem for K.C., a minor child; Tanya L. Lomax, Guardian ad litem for E.B., a minor child, on brief), for appellee.

Rukeyia Silver (mother) appeals the orders terminating her parental rights to her child,

E.B., approving the foster care goal of adoption for E.B., adjudicating that her child, K.C., was

abused or neglected, and approving the foster care plan for K.C. Mother argues that the circuit

court “erred in finding that there was sufficient evidence” to terminate her parental rights to E.B.

and that termination of her parental rights was not in E.B.’s best interests. She further contends

that the circuit court “erred in finding that there was sufficient evidence” to adjudicate that K.C.

was abused or neglected and that the Norfolk Department of Human Services (the Department)

“failed to exercise reasonable efforts to prevent removal of K.C.” 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, “we view the evidence in the light most favorable to the prevailing party, in

this case, the Department, and grant to it all reasonable inferences fairly deducible from the

evidence.” King v. King George Dep’t of Soc. Servs., 69 Va. App. 206, 210 (2018) (quoting

C. Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 420-21 (2012)).

On February 1, 2016, the Department removed mother’s two older children from her care

after she was arrested and her placement option with a family friend “fell through.”2 The

Department investigated the family and became concerned about the family’s “chronic

homelessness,” mother’s mental health, and the domestic violence between mother and her

boyfriend, Shawnte Walker. Despite the evidence to the contrary, mother denied any history of

domestic violence or mental health concerns.

The Norfolk Juvenile and Domestic Relations District Court (the JDR court) issued a

child protective order prohibiting Walker from having contact with mother and the children, and

it returned custody of the children to mother, over the Department’s objection. The Department

continued to provide services to mother, but she denied needing services.

Mother, however, participated in a psychological and parenting capacity evaluation with

Dr. Cathy Tirrell, a clinical psychologist. Mother reported having a “very complicated medical

history,” including diagnoses of epilepsy, sickle cell anemia, traumatic brain injury, pulmonary

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 Mother’s two older children are not the subject of this appeal. At the beginning of the circuit court hearing, mother withdrew her appeals concerning the termination of her parental rights to her older children. -2- embolism, borderline diabetes, and Chiari malformation; Dr. Tirrell was unable to independently

verify mother’s assertions because no medical records were provided. Dr. Tirrell reported that

mother did not believe that the Department needed to be involved in her and her family’s lives,

and mother was “irritable and frustrated” with the Department’s case. Mother denied that

Walker had been physically aggressive towards her, and she believed that a no-contact order was

unnecessary. Mother did not accept any responsibility for the Department’s involvement.

Dr. Tirrell found mother to be “resourceful” and noted that mother tried “very hard so that the

children’s needs [were] met.” Dr. Tirrell was concerned, however, that mother’s stress impacted

“her patience, her frustration, tolerance, [and] her ability to respond appropriately to her

children’s cues.” Dr. Tirrell had “a lot of concerns about her being at home [with children]

without support.”

Mother and Walker were engaged in additional domestic violence incidents resulting in

emergency protective orders and Walker’s arrest. The children were placed back in foster care

for a few months before they were returned to mother’s care again for a trial home placement. In

August 2017, the Department removed the children from mother’s care for the last time after

learning that mother continued to violate the child protective order and have contact with

Walker.

After the Department placed the two older children in foster care, mother gave birth to

E.B. in September 2017.3 The Department removed E.B. from mother’s care shortly after his

birth due to concerns about her history of homelessness, her mental health and treatment, and

“her ability to protect the children.” The Department continued to provide services to mother

and arranged for visitation. The Department, however, was unable to verify mother’s attendance

at individual counseling appointments and domestic violence classes.

3 Walker is E.B.’s biological father. -3- For several weeks between December 2018 and January 2019, mother left the Norfolk

area and reportedly traveled to Maryland and Delaware for brain surgery.4 Despite requests from

the Department, mother provided no medical documentation that she had brain surgery; instead,

in January 2019, mother gave birth to K.C., unbeknownst to the Department.5 Mother returned

to Norfolk and left K.C. in the care of LaTonya Jackson, a former CASA worker for mother’s

two older children.6 Mother never lived with Jackson, but K.C. lived with Jackson for

approximately three months.

The Department became aware of the situation with K.C. in April 2019, after mother

filed a petition requesting that legal and physical custody of K.C. be shared between her and

Jackson. After learning of the pending custody petition and investigating the situation, the

Department removed K.C. from Jackson’s home due to its “lack of knowledge of [K.C.’s] birth,

lack of cooperation, and [its] inability to vet out a suitable placement option.” The Department

determined that Jackson was not an appropriate placement because she was aware of mother’s

history with the Department and the services needed but did not inform the Department of K.C.’s

birth and had allowed mother to visit the child.

On August 16, 2019, the JDR court entered a dispositional order after adjudicating that

K.C. was abused or neglected.

4 A hearing was scheduled for January 25, 2019, and the JDR court noted that “mother just had brain surgery.” 5 Walker is K.C.’s biological father. 6 In September 2017, Jackson was terminated from the CASA program due to boundary issues and “overidentifying” with mother. -4- The JDR court also entered orders terminating mother’s parental rights to E.B. and

approving the foster care plans for E.B. and K.C.7 Mother appealed the JDR court’s orders to the

circuit court.

On February 13 and 14, 2020, the parties appeared before the circuit court. The

Department presented evidence that E.B. was doing well in foster care and had met his

developmental milestones. K.C. also was doing well in foster care and was receiving

occupational therapy.

Furthermore, the Department presented evidence that mother had not complied with its

requirements. In December 2019, the Department had requested verification of mother’s

employment, but she never provided it. Mother also did not inform the Department of her

current address, as she indicated that she was considering relocating. Mother and Walker

continued to have contact with one another throughout the duration of the case, even though

mother denied it. Their contact with one another oftentimes involved domestic violence. In

September 2019, mother had reported that Walker had vandalized her van. Generally, however,

mother was not “forthcoming” about any domestic violence incidents and denied their

occurrences. The Department had not seen any change in mother’s “ability to be protective of

her children” since the Department first became involved with the family in 2016.

Mother testified about her efforts to complete the Department’s requirements. She had

participated in individual counseling “on and off for a year.” She was employed periodically

while the children were in foster care. At the time of the circuit court hearing, she was receiving

disability, had registered with two temporary staffing agencies, and was enrolled in a business

program with an online university.

7 Walker voluntarily terminated his parental rights to E.B. and did not appeal the JDR court’s rulings regarding K.C. -5- Mother acknowledged that she had “struggled” with housing and homelessness in the

past. She had lived in two domestic violence shelters and at least three other residences. At the

time of the circuit court hearing, she was renting a room in a house. Mother told the circuit court

that since her current residence was not suitable, she was on a waiting list for housing and also

was looking for housing and a job in North Carolina.

Mother testified that she had completed the required domestic violence classes and

parenting classes. Mother acknowledged that her relationship with her older children’s father

involved domestic violence. When their relationship ended, mother “rekindle[d]” her

relationship with Walker, which ultimately resulted in the births of E.B. and K.C. Mother

explained that she had denied any abuse between her and Walker because she did not realize at

the time that domestic violence involved more than physical abuse. She admitted at trial that

their relationship had involved verbal, emotional, and mental abuse.

Mother claimed to have been in a car accident in Maryland in January 2019, and

subsequently gave birth to K.C. She testified that she was unaware that she was pregnant.

Shortly after giving birth, she said that she was transferred to a hospital in Delaware for brain

surgery. Mother testified that as a result of the surgery, she had “significant memory loss.”

Mother stated that she lost her paperwork documenting the surgery and could not afford to have

additional copies made. On cross-examination, mother disagreed with the Maryland medical

records that indicated that she had been seen by a doctor when she was seven weeks pregnant

with K.C., that she had been hospitalized for placenta previa bleeding from December 25, 2018

through January 5, 2019, and that she had a scheduled caesarian section. She could not explain

why the Maryland medical records did not “mention anything” about a car accident.

Mother expressed her desire for E.B. and K.C. to return to her care. She claimed to be

able to provide them with a “safe, stable environment.”

-6- After hearing the evidence and argument, the circuit court took the matter under

advisement. On February 19, 2020, the circuit court entered orders terminating mother’s

parental rights to E.B. and approving the foster care goal of adoption for E.B. The circuit court

also entered an adjudicatory order and a dispositional order for K.C., finding that K.C. was

abused or neglected and approving the foster care plan. Mother timely noted her appeal.

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)).

Termination of parental rights

Mother argues that the circuit court erred in finding that there was sufficient evidence to

terminate her parental rights to E.B. and that termination was in his best interests. Mother

emphasizes that she participated in domestic violence classes and learned that domestic violence

encompasses more than physical abuse. She contends that she had separated from Walker and

“want[ed] to protect her children and keep them safe.” She also notes that she completed parenting

classes and that her “health problems prevented her from completing services in a timely fashion.”

The circuit court terminated mother’s parental rights under Code § 16.1-283(B) and (C)(2).

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 -7- 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.

Code § 16.1-283(C)(2). “[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 v. Stafford Dep’t of Soc. Servs., 69

Va. App. 539, 552 (2018) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271

(2005)).

When the Department initially became involved with mother and her children, there were

concerns about domestic violence, homelessness, and mother’s mental health. Mother was

involved in an abusive relationship with her older children’s father and entered into another

abusive relationship with Walker. The Department presented evidence of assault and battery

charges, violations of a protective order, and other violent encounters between mother and

Walker, several of which occurred after mother’s completion of her domestic violence class.

Because of the ongoing domestic violence, the Department did not see any change in mother’s

“ability to be protective of her children.”

Moreover, at the time of the circuit court hearing, mother still had not obtained safe and

stable housing. She was renting a room in a house, which she acknowledged was not appropriate

for E.B. She testified about being on a waiting list for housing and that if a house became

available, she would need to present her birth certificate, which she did not have. She also had

considered moving to North Carolina, but nothing was definitive.

With respect to her mental health, mother admittedly engaged in individual counseling

“on and off for a year.” She resumed counseling in November 2019 but only attended “about

-8- three maybe four” sessions before she stopped going in December 2019. The Department was

unable to verify mother’s attendance.

E.B. was two years old at the time of the circuit court hearing and had been in foster care

for most of his life. The Department had been involved with the family before E.B.’s birth and

had offered numerous services to mother. Nevertheless, mother was not in a position to care for

E.B. “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

totality of the record, the circuit court did not err in terminating mother’s parental rights to E.B.

under Code § 16.1-283(C)(2) and finding that the termination was in E.B.’s best interests.

“When a trial court’s judgment is made on alternative grounds, we need only consider

whether any one of the alternatives is sufficient to sustain the judgment of the trial court, and if

so, we need not address the other grounds.” Kilby v. Culpeper Cnty. Dep’t of Soc. Servs., 55

Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46

Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of

Code § 16.1-283 and did not need to address termination of parental rights pursuant to another

subsection). Because we find that the circuit court did not err in terminating mother’s parental

rights under Code § 16.1-283(C)(2), we, therefore, do not need to reach the question of whether

mother’s parental rights should also have been terminated under Code § 16.1-283(B).

Abuse & neglect

Mother argues that the circuit court erred in finding that there was sufficient evidence to

adjudicate that K.C. was abused or neglected. Mother contends that K.C. was in Jackson’s care at

-9- the time of the removal, and there was no evidence to prove that he was being abused or neglected

while in her care.

Code § 16.1-228(2) defines an abused or neglected child as any child: “[w]hose parents

or other person responsible for his care neglects or refuses to provide care necessary for his

health.” “[T]he statutory definitions of an abused or neglected child do not require proof of

actual harm or impairment having been experienced by the child.” D. Farrell v. Warren Cnty.

Dep’t of Soc. Servs., 59 Va. App. 342, 364 (2012) (quoting Jenkins v. Winchester Dep’t of Soc.

Servs., 12 Va. App. 1178, 1183 (1991)). Proof by a preponderance of the evidence is the

appropriate standard for abuse and neglect cases. See Cumbo v. Dickenson Cnty. Dep’t of Soc.

Servs., 62 Va. App. 124, 130 (2013).

As discussed above, at the time of K.C.’s birth, the Department already had removed

three of mother’s children from her care due to her inability to provide a safe and stable home for

them. Mother claimed that she was unaware that she was pregnant with K.C., but the

Department introduced evidence suggesting that mother had a seven-week sonogram and

prenatal care. Mother also was hospitalized for placenta previa bleeding from December 25,

2018 through January 5, 2019, and she had a caesarean section scheduled for K.C.’s birth.

During the circuit court hearing, mother claimed that the medical records were incorrect, but she

could not produce any records to corroborate her story that she had been in a car accident and

gave birth to K.C. thereafter.

At the conclusion of the evidence, the circuit court stated, “There have been some

things . . . along the way of this trial that . . . I think [mother] just hasn’t been entirely truthful

with us on everything.” “It is well established that the trier of fact ascertains a witness’

credibility, determines the weight to be given to their testimony, and has discretion to accept or

reject any of the witness’ testimony.” Layman v. Layman, 62 Va. App. 134, 137 (2013) (quoting

- 10 - Street v. Street, 25 Va. App. 380, 387 (1997) (en banc)). “This Court is bound by the credibility

findings of the circuit court.” Tackett, 62 Va. App. at 339.

Mother did not inform the Department about K.C.’s birth and subsequently left him in the

care of Jackson. The Department found that Jackson was not a suitable placement for K.C. The

executive director of Norfolk CASA opined that Jackson was incapable of “being in a protective

capacity for any of [mother’s] children” based on Jackson and mother’s relationship.

Throughout the Department’s involvement with mother, she had demonstrated that she

was incapable of rendering appropriate parental care. The circuit court found that K.C. was

abused or neglected because mother “neglect[ed] or refuse[d] to provide care necessary for his

health.” Code § 16.1-228(2). “When the trial court acts as a factfinder, as it did in this case, it

retains ‘broad discretion in making the decisions necessary to guard and to foster a child’s best

interests.’” C. Farrell, 59 Va. App. at 421 (quoting Farley v. Farley, 9 Va. App. 326, 328

(1990)). Considering the totality of the evidence, the circuit court did not err in finding that K.C.

was abused or neglected.

In addition, mother argues that the Department “failed to exercise reasonable efforts to

prevent removal of K.C.” because it could have pursued a protective order, instead of removing

K.C. Mother, however, never raised this argument with the circuit court. “The Court of Appeals

will not consider an argument on appeal which was not presented to the trial court.” Tackett, 62

Va. App. at 315 (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)); see Rule

5A:18.

CONCLUSION

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

Affirmed.

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