COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Athey and Senior Judge Petty UNPUBLISHED
SHANNON LACOLE HOUSTON MEMORANDUM OPINION* v. Record No. 0001-24-3 PER CURIAM JANUARY 28, 2025 ROANOKE COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ROANOKE COUNTY James R. Swanson, Judge
(John S. Koehler; The Law Office of James Steele, PLLC, on brief), for appellant.
(Marta J. Anderson, Senior Assistant County Attorney; Kelli C. Boyer, Guardian ad litem for the minor child; Boyer Law, PLC, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Shannon Lacole Houston (“Houston”) appeals from an order entered in the Circuit Court of
Roanoke County (“circuit court”) terminating her parental rights to her minor child, K.C.1 During
closing argument on the second day of the two-day trial, Houston moved for a continuance so that
she could obtain evidence showing that her positive drug screens resulted from her taking
prescribed medication. The circuit court denied her motion. On appeal, Houston contends that the
circuit court erred by denying her requested continuance. Finding no error, we affirm.2
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 We use initials to protect the identity of the minor child. 2 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). I. BACKGROUND3
Upon the petition of the Roanoke County Department of Social Services (the “Department”)
and after a hearing on October 26, 2022, the Roanoke County Juvenile and Domestic Relations
District Court (“JDR court”) entered an order terminating Houston’s parental rights to K.C. under
Code § 16.1-283(C) and a permanency planning order approving the goal of adoption for K.C.4
Houston timely appealed the decision to the circuit court. The trial de novo took place over the
course of two days: August 10, 2023, and November 22, 2023.
The parties convened on the first day for the limited purpose of introducing evidence
regarding potential American Indian heritage of the child consistent with the federal Indian Child
Welfare Act and for the additional purpose of authenticating Houston’s drug test reports. Houston’s
hair and urine drug screens were admitted in evidence as business records—Houston’s only
objections to their entry were hearsay. To authenticate the records reflecting the results of the tests,
the Department called several witnesses. The first two witnesses were the custodians of records for
the two labs that tested Houston’s hair and urine samples: Omega Laboratories and MedTox. The
third witness was Tim Fitzgerald (“Fitzgerald”),5 who served as the president and records custodian
of Safety and Compliance (“SC”), the “consulting and drug testing firm” that collected samples of
Houston’s hair and urine necessary to perform the drug screens. Fitzgerald testified that the hair
screens were sent to Omega Laboratories for testing and that the urine samples were initially tested
3 The record in this case was sealed. “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). 4 The permanency planning order was entered on October 26, 2022, and the termination of parental rights order was entered on March 17, 2023. 5 Fitzgerald is referred to at times in the transcript as “Tim Montgomery” or “Mr. Montgomery.” Because both parties on brief refer to him as “Tim Fitzgerald,” we employ the surname used on brief. -2- on-site and if positive, were sent to MedTox for confirmation. Fitzgerald further stated that SC did
not normally inquire concerning a donor’s prescription medications and that in most social services
cases, SC used a “[n]on-MRO” test “so we can see the levels.” Furthermore, he testified that if the
results were positive and a donor “says well I have a legitimate prescription for that,” then the test is
sent to a medical review officer who “will touch base with that person and verify that prescription if
need be.” However, he noted, “[m]ost of the time when we are looking at something like
methamphetamines there is no prescription, so because there is no prescription there is no reason to
involve the medical review officer.” When asked about whether prescription medications could
cause false positives for methamphetamine, he testified that he was not aware of any doctors
prescribing methamphetamine. Lastly, Fitzgerald testified that “[t]here are levels but with
methamphetamines itself, if you have amphetamines and you have methamphetamines currently to
my knowledge there is no physician writing a prescription for that.”
On the second day of trial, the circuit court heard testimony from several other witnesses.
The Department called Ardis Gregory (“Gregory”), “a licensed professional counselor in adult child
and family therapy,” who testified that on February 3, 2022, she conducted a substance abuse
assessment of Houston upon a referral from the Department. Gregory testified that during the
assessment, Houston self-reported last using methamphetamine in August of 2021. Gregory also
confirmed that Houston acknowledged that she had since failed a drug screen by testing positive for
methamphetamine and self-reported that failure to the Department. Gregory further testified that
Houston “met diagnostic criteria for substance abuse disorders” and as a result, she recommended
outpatient treatment. Gregory then testified that she had scheduled several appointments with
Houston for outpatient treatment, but Houston only attended the first appointment, cancelled her
second appointment, and was a “no show no call no cancel” for her third appointment. Following
-3- her noncompliance, Gregory testified that she removed the remainder of the scheduled
appointments from her calendar.
Victoria Church (“Church”), a child protective services investigator supervisor employed by
the Department, then testified that on November 3, 2021, the Department filed a petition for
removal of K.C., based on a phone call relaying “[d]rug concerns.”6 As a result, she testified, the
Department requested that Houston perform a hair screen, which subsequently tested positive for
methamphetamine. At the time of the phone call, Houston was residing in a hotel, and K.C. was
present in the hotel room when the Department arrived at the hotel. Church testified that there were
also concerns about Houston’s mental health based on her increasingly erratic and agitated behavior
during a subsequent home visit. On cross-examination, Church acknowledged that the call received
by the Department reported that drug dealing was occurring—not drug use. Church also
acknowledged that no drugs were found on the premises, no individuals on the premises confirmed
that they purchased or received drugs from Houston, and Houston was not convicted of distribution
or possession of drugs based on the Department’s visit at the hotel.
The Department’s final witness, Danita Tucker (“Tucker”), was the supervisor for the
Department’s foster care team.7 Tucker testified that after K.C. was physically removed, the
Department created a service plan to reunite K.C. with Houston. As a part of that plan, the
Department recommended that Houston complete a substance abuse evaluation and complete any
recommended treatment arising from the evaluation. Although Houston completed the initial
6 The investigator who responded to Houston’s residence was no longer employed by the Department at the time of the trial. Church testified that she was the record keeper for the Department’s investigation team and that she had reviewed the affidavit of the investigator who had responded to the call of concern. 7 The initial case manager was no longer employed by the Department at the time of trial, but Tucker testified that as the supervisor of the foster care team, she was familiar with the case. She also testified that she was the custodian of records for the foster care team. -4- evaluation component, Tucker—after Houston denied repeated attempts and requests for a release
of information concerning any subsequent recommended treatment—was unable to verify whether
Houston had completed any recommended treatment. The service plan also included a parental
capacity evaluation, but Houston failed to attend the scheduled parental evaluation. The service
plan also provided for drug screens “in order to ensure sobriety.” Tucker testified that Houston
tested positive for methamphetamine at every screen in which she participated from November 5,
2021, to July 24, 2023. Tucker further testified that Houston had obtained housing but was unable
to verify whether she was employed. When asked why the Department was seeking approval for
the goal of adoption, Tucker responded that K.C. “needs permanency” and noted that she could
neither verify that Houston was participating in substance abuse treatment nor whether Houston was
employed. Furthermore, she emphasized that Houston had “not maintained sobriety throughout the
life of the case” and that Houston was “still testing positive for methamphetamines and
amphetamines.”
Houston testified on her own behalf, stating that she had never dealt drugs, nor had she been
charged with possession or distribution of illegal substances since the case began. When asked to
explain her positive tests for methamphetamines and amphetamines, she stated that the results were
caused by a “diet pill” prescribed by her primary care physician “because of my obesity and my
health.”8 Houston also testified that the diet drug was a stimulant and that it was her understanding
that it could cause a positive result for methamphetamines and amphetamines. Houston further
testified that the Department had never asked her to sign a release so it could access her prescription
records and that every time she went in for a drug screen, she took her prescriptions with her—but
“they said [sic] never needed them.” When asked whether she would be willing to sign any waivers
for the Department that day, she replied, “Yes, absolutely.” Houston further testified that when she
8 She further stated that the drug was “Adipex,” generic for “Phentremine.” -5- discussed her positive drug screens with the Department, she explained that she had a prescription,
but that the Department never asked her for a waiver or inquired any further. When asked whether
she had considered stopping the medication, she stated that she would “if that is all it takes but no
one has said nothing to me about it. Like, I am lost when it comes to stuff like this. I get scared to
ask questions sometimes, but also, I can’t just stop taking it.” She also stated that it could affect her
health because she is allergic to sodium and she would “swell up”—to the extent that when asked
whether “it is life threatening if you stop taking this medication,” she responded, “To a point. It can
be.”
On cross-examination, Houston noted that she had not brought her physician to testify at the
de novo trial—because she “didn’t know [she] needed to.” However, she stated that she had asked
her physician to write a letter to her lawyer about the medicine she was taking and that—as far as
she knew—the letter was sent to her attorney.
The circuit court then asked her whether she had her prescription bottle with her, to which
she responded that she did not. She testified that she had used the medication for the past 15 years
“on and off,” and she stated that the prescription was for “one month, 30 days at a time.” According
to Houston, her most recent prescription was issued at the end of September of 2023. She testified
that she could get refills for three months by calling the pharmacy, but she had to go back in person
“every three months” to see her doctor for the prescription to be renewed. The circuit court further
inquired into her basis for believing that the medication was causing her positive result for
methamphetamine. She responded that her belief was based on “[t]he pamphlet you receive, my
doctor, and what I’ve done research on, asking CVS, the pharmacist on my own.” She stated that
she had discussed the issue with her attorney, but that she was told that the evidence showing that
the prescription could cause positive tests “was not admissible in court, it is hearsay, just because of
me having a piece of paper.” The circuit court remarked that “if there is some legitimate basis for
-6- your belief of these positive, these false positives, then we would hear something about it beyond
your unsubstantiated assertion,” to which Houston responded that she could not afford an expert
witness. To follow up, the circuit court asked whether she had talked with her doctor about the
issue and if she had asked for him to help her show a connection between her medication and the
positive results. Houston responded, “No. I mean, I don’t know. I’ve asked to discuss it but I don’t
know what else to do. I’m new to this stuff, like -- I don’t get it.” The circuit court reminded her
that, although she was not a lawyer or legally trained, she was “not new to this stuff” and asked
whether she had ever considered if there was “some mechanism to establish the basis for [her] false
positives.” She responded that she thought it was enough to take her prescriptions with her to the
screens and to disclose the prescription to the social worker.
During closing arguments, counsel for Houston asked for a continuance “limited for the sole
purpose of whether or not she can provide documentation of this prescription that she has had for 15
years . . . within [60] days.” Counsel argued that allowing 60 days for her to produce evidence of
her prescription would “explain[] the methamphetamine prescription positive,” making “this case
. . . a completely different case.” The circuit court again asked “why hasn’t that been done up to this
point?” Houston’s counsel responded, “I don’t want to go into attorney client privilege
communications but we don’t have it today.” He further stated that Houston did not have the funds
to hire an expert witness but maintained that if she signed a waiver, the Department could have
access to more information about the drug. Lastly, Houston’s counsel added, “If she can’t provide
it, if she won’t sign the waivers, if she can’t get the evidence to the court or the Department between
now and then, the case is over.”
The Department opposed a continuance, stating that this “[wa]s not a case . . . that has not
had ample opportunity to bring up any issues that are necessary.” The Department noted that on the
first day of the trial, each custodian of records for the laboratories at which the drug screens were
-7- processed testified and that it was the Department’s position that “if a test shows a result of
methamphetamine it is because they are testing for methamphetamine.” Further, the Department
argued that the first day of trial—when the record custodians were testifying—“would have been
the appropriate time to address that issue.”
Following closing argument, the circuit court first denied Houston’s request for a
continuance, opining that it was “unpersuaded by Ms. Houston’s assertion of this false positive
produced by her diet medication,” and noted the “numerous opportunities” Houston had to address
the issue. The circuit court then concluded “that the inference from her failure to [ad]duce evidence
is that the evidence doesn’t exist, showing this connection.” The circuit court also found that the
“continual . . . positive testing for methamphetamine use, failure to comply with the appropriate
assistance measures taken by DSS over the course of this case, the lack of cooperation . . . insofar as
the parental capacity evaluation, and follow up with the substance abuse with Ardis Gregory”
supported the termination of her parental rights as being in the best interests of K.C. The circuit
court further found that the Department had proven “by clear and convincing evidence that the basis
for removal in this case ha[d] not been remedied within a reasonable period of time” and that it had
been well in excess of twelve months since the removal of K.C. Based thereon, the circuit court
held that termination of Houston’s parental rights was appropriate, and the circuit court further
approved changing the foster plan goal to adoption. On December 14, 2023, the circuit court
entered a final order terminating Houston’s parental rights under Code § 16.1-283(C)(2) and
approving “[t]he foster care plan with the permanent goal of adoption.” Houston appealed.
II. ANALYSIS
A. Standard of Review
The denial of a continuance is reviewed on appeal for an abuse of discretion and resulting
prejudice to the moving party, “in view of the circumstances unique to each case.” Haugen v.
-8- Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007). “The circuit court’s ruling on a
motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and
resulting prejudice to the movant.” Id. “The abuse of discretion standard ‘rests on the venerable
belief that the judge closest to the contest is the judge best able to discern where the equities lie.’”
Bailey v. Commonwealth, 73 Va. App. 250, 265 (2021) (quoting Hamad v. Hamad, 61 Va. App.
593, 607 (2013)). “Accordingly, ‘we do not substitute our judgment for that of the trial court.
Rather, we consider only whether the record fairly supports the trial court’s action.’” Id. (quoting
Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
B. The circuit court did not err by denying Houston a continuance.
Houston assigns error to the circuit court’s denial of her request for a continuance.9 She
contends that the circuit court “erred in not providing [her] an opportunity to present evidence that
her positive drug screens were the result of her taking validly prescribed prescription medication
and not illicit drug use.” She further maintains that because the “sole allegation made against [her]
was that she abused illicit drugs and that this could potentially cause her to be unable to provide
appropriate care for [K.C.],” the circuit court’s denial of her request for a continuance resulted in
prejudice to her, as she was unable to establish that the positive drug tests resulted from her
prescription medications. For the following reasons, we disagree.
First, we find no abuse of discretion in the circuit court’s denial of the requested
continuance. Under this deferential standard of review, see Bailey, 73 Va. App. at 265, we note that
the circuit court, after hearing testimony from Houston, was “unpersuaded” by her explanation for
testing positive for methamphetamine use. Additionally, “[i]n determining whether the trial court
properly exercised its discretionary powers, we look to the diligence exercised by the moving party
9 Houston does not challenge the sufficiency of the evidence underlying the order terminating her parental rights or approving the foster care plan with the goal of adoption. -9- to gather and make the evidence available at trial.” Smith v. Commonwealth, 16 Va. App. 630, 636
(1993). Houston had at least two opportunities—with more than three months in between the two
trial days—to produce evidence of her prescription and testimony that her prescribed medication
could cause a positive result for methamphetamine on a hair or urine screen. When she failed to do
so, the circuit court asked if she could, at the very least, show the court her prescription bottle—she
was unable to produce the medication when provided the opportunity to do so by the court.
Houston, who was represented by counsel, did not secure the attendance or testimony of her
prescribing physician, despite having notice of the de novo trial.10 Moreover, on the first day of
trial, both parties questioned one of the records custodians about whether prescription medication
could cause a positive test result for methamphetamine, to which the custodian indicated—without
objection—that “[m]ost of the time when we are looking at something like methamphetamines there
is no prescription” and that “to my knowledge there is no physician writing a prescription for
[methamphetamine].” Thus, Houston had notice that her positive results for methamphetamine
would be at issue and had over three months to produce evidence that her medication caused the
positive result. Due to Houston’s failure to diligently make such evidence available to the circuit
court, we cannot find that the circuit court abused its discretion by denying her requested
continuance.
Furthermore, we find no resulting prejudice due to the circuit court’s denial of the requested
continuance. “While justice, not speed, should be paramount in determining whether a continuance
will be granted, the court is not obligated to grant a continuance based on mere speculation.” Smith,
10 For her part, we note that Houston testified that she had her physician send a letter to her attorney. However, such letter was not offered in evidence. The circuit court did not err by concluding that her failure to adduce evidence indicated that such favorable evidence did not exist. Cf. Robinson v. Commonwealth, 207 Va. 66, 69 (1966) (“It is true that the failure of a party to call a material witness frequently raises a presumption that his testimony would not have been favorable to such party.”). - 10 - 16 Va. App. at 634-35. While Houston indicated that she would be willing to sign a waiver
allowing the Department to review her medical records, whether this would show that she had a
prescription or whether the prescription caused the positive results is speculative. So too is whether
her prescribing physician’s testimony would have been favorable to her assertion. Cf. Stewart v.
Commonwealth, 10 Va. App. 563, 569 (1990) (holding that where a trial court’s denial of a
continuance “prevented [the defendant] from interviewing a potentially valuable witness who might
have been able to discredit” another witness’s identification of him, the trial court did not abuse its
discretion because the request was “based on mere speculation” and there was “nothing in the
record to indicate he was deprived of favorable or exculpatory evidence”); Smith, 16 Va. App. at
637 (“The trial court could only speculate as to the potential value of the unavailable test results and
guess whether it ‘might’ be of assistance ‘if’ it could be produced.”). In other words, even if
Houston produced evidence that she was taking a prescribed medication that could cause a false
positive test, there is no indication in the record that she would have been able to prove that taking
such medication—and not illicit drug use—in fact caused her positive tests. This, in addition to the
fact that she had months to produce such evidence, requires us to conclude that she suffered no
prejudice as a result of the circuit court’s denial of her requested continuance.
III. CONCLUSION
For the foregoing reasons, we find no error. We thus affirm the judgment of the circuit
court.
Affirmed.
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