Eaton v. Wash. Cnty. Dep't of Soc. Servs.

66 Va.App. 317

785 S.E.2d 231

Rochelle Lee EATON

v.WASHINGTON COUNTY DEPARTMENT OF SOCIAL SERVICES.

Record No. 1271–15–3.

Court of Appeals of Virginia, Lexington.

May 10, 2016.

(Jordan C. Pennington, on brief), Bristol, for appellant. Appellant submitting on brief.

James R. Hodges ; Abingdon, L. Dudley Senter, III, Guardian ad litem for the infant child (McElroy & Hodges; The Senter Law Firm, PC, on brief), for appellee.

Present: PETTY, O'BRIEN and ATLEE, JJ.

O'BRIEN, Judge.

Rochelle Lee Eaton (“appellant”) appeals the termination of her residual parental rights to her daughter (“C.O.”), born February 18, 2002. Appellant asserts four assignments of error:

I. That the trial court committed reversible error by terminating the residual parental rights of the Appellant when clear and convincing evidence was not presented to prove that she was responsible for the conditions which led to the child being placed in foster care.

II. That the trial court committed reversible error by terminating the residual parental rights of the Appellant when clear and convincing evidence was not presented to prove that ... she had failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six (6) months after the child's placement in foster care, notwithstanding the reasonable and appropriate efforts of social, medical, mental health, or other rehabilitative agencies to communicate with the parent and to strengthen the parent's relationship.

III. That the trial court committed reversible error by terminating the residual parental rights of the Appellant when clear and convincing evidence was not presented to prove that she had, without good cause, been unwilling or unable within a reasonable period of time, not to exceed twelve (12) months from the date the child was placed in foster care, to substantially remedy the conditions which led to or required continuation of the child's placement in foster care, notwithstanding the reasonable and appropriate efforts of social, medical, mental health, or rehabilitative agencies to such end.

IV. That the trial court committed reversible error by terminating the residual parental rights of the Appellant when clear and convincing evidence was not presented to prove that it was in the best interest of the said minor child to terminate the Appellant's residual parental rights.¹

I. Background

In 2005, appellant and her three-year-old daughter, C.O., were living in Bristol, Tennessee. In August of 2005, the juvenile court of Sullivan County in Bristol, Tennessee, (“the Tennessee court”) removed C.O. from her mother's custody after finding that C.O. was “dependent and neglected” and her health and safety were subject to an immediate threat. The Tennessee court placed C.O. in the custody of the Tennessee Department of Children's Services (“TDCS”). Except for a brief period of time in 2009, C.O. never again resided with her mother.

TDCS provided services to appellant during the pendency of the Tennessee case. The Tennessee court held a series of hearings from 2005 until 2010, and found at each hearing that C.O. remained at risk of ongoing and future substantial harm if returned to her mother's custody. In October of 2010, the Tennessee court granted permanent custody of C.O. to Joe and Minnie Hobbs, the child's great-uncle and great-aunt, who lived in Washington County, Virginia. In the order granting permanent custody, the court made the following findings:

1. That there is clear and convincing evidence of ongoing and future substantial harm to [C.O.] while in the custody of [appellant].

2. That due to the clear and convincing evidence of ongoing future substantial harm to [C.O.], permanent custody is awarded to [Joe and Minnie Hobbs].

3. That it has not been safe to return [C.O.] to [appellant] since the initiation of the dependency and neglect action originally filed in October 2005, and that there is no evidence that [appellant]'s home will ever be safe for [C.O.] to return.

4. That [appellant] is unable to care for the day-to-day medical, educational, physical, and emotional needs of [C.O.].

C.O. remained with the Hobbs family until 2013, when they were no longer able to care for her.² On October 7, 2013, the Washington County, Virginia Department of Social Services (“WCDSS”) filed for emergency removal of C.O. in the Washington County Juvenile and Domestic Relations District Court (“J & DR court”). The J & DR court granted the motion, and WCDSS took custody of C.O. and placed her in foster care. After objecting to the finding that C.O. was abused or neglected, Mr. and Mrs. Hobbs filed for relief of custody, which was granted. C.O. remained in foster care with a family approved by WCDSS.

In July of 2014, WCDSS filed for a permanency planning hearing that called for termination of appellant's residual parental rights and identified a permanent goal of adoption. Appellant subsequently filed a petition for custody in J & DR court. Following a hearing on March 6, 2015, the J & DR court terminated appellant's residual parental rights, accepted the permanency plan filed by WCDSS, and dismissed appellant's petition for custody.³

Appellant appealed the J & DR court's ruling, and a trial took place in circuit court on June 9, 2015. At trial, Jessica Newland, a foster care worker at WCDSS, testified that she became involved in the case in October 2013, when WCDSS assumed custody of C.O. Newland testified that WCDSS provided appellant with some services, including arranging visitation and providing gas vouchers for transportation to visitation and team treatment meetings. Appellant visited with C.O. once a month, but the visits only took place if WCDSS initiated them. Newland observed the visitations and testified that appellant's mother would accompany appellant and the women argued frequently during the visitations. According to Newland, appellant also spent a fair amount of the visitation time playing games on her cellular phone.

Newland testified that she visited appellant's one-bedroom apartment, where appellant was sleeping on a mattress on the floor. Appellant had not been employed since 2013. When questioned by the court, Newland stated that WCDSS did not recommend that C.O. be returned to her mother because TDCS had previously determined that they had exhausted all of the services that they could provide to appellant in her home and appellant did not cooperate with a home study of her residence in Tennessee coordinated by WCDSS.

C.O.'s foster father testified that the child had lived with his family since October 2013. He told the court that C.O. was a good student, and she was involved in extracurricular and church activities. The foster father stated that he and his wife would like to adopt C.O.

C.O. testified that she loved both her mother and her foster family. When asked if she wanted to spend weekends with her mother, she answered “[t]o be honest, no.”

She said that she did want visitation with her mother but she did not “feel comfortable spending the night,” and did not want to live with her mother. C.O. told the court that she wanted to be adopted by “the right family,” and she felt that her foster family was “the right family.”

Appellant testified that she wanted custody of C.O. She indicated that she resided in a one-bedroom apartment. If she obtained custody of C.O., appellant planned to sleep on the couch and give C.O. the bedroom. Appellant stated that she takes medication for depression and bipolar disorder. She acknowledged that she does not work or have a driver's license. Appellant told the court that she receives $706 a month from social security disability due to her mental illness, and if she was granted custody of C.O. she would “be looking into” getting C.O. insurance and food stamps.

Over objection, the court also considered the reports and documentation prepared by TDCS during the years that the case was being heard in the Tennessee court. The reports described the involvement of TDCS with appellant and C.O., including psychological assessments of appellant and services offered to her. Finally, the court also received the orders entered by the Tennessee court which granted permanent custody of C.O. to Mr. and Mrs. Hobbs in 2010, after finding that it was not safe to return C.O. to appellant's home. In a letter opinion, the court found that WCDSS met its burden to terminate appellant's parental rights under both Code § 16.1–283(B) and (C). The court also approved the foster care plan with the goal of adoption and dismissed appellant's motion for custody.

II. ANALYSIS

A. Standard of Review

When reviewing termination of residual parental rights, this Court presumes that the trial court “thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests.” Fields v. Dinwiddie Cty. Dep't of Soc. Servs., 46 Va.App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting Farley v. Farley, 9 Va.App. 326, 329, 387 S.E.2d 794, 796 (1990) ). The circuit court has “broad discretion in making the decisions necessary to guard and to foster a child's best interests.” Farley, 9 Va.App. at 328, 387 S.E.2d at 795. Therefore, in a case involving termination of parental rights, “[t]he trial court's judgment, ‘when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.’ ” Fields, 46 Va.App. at 7, 614 S.E.2d at 659 (quoting Logan v. Fairfax Cty. Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 463 (1991) ).

1. Sufficiency of the Evidence for Termination Pursuant to Code § 16.1–283(B)

Appellant contends that the trial court erred in terminating her residual parental rights under Code § 16.1–283(B). She argues that WCDSS failed to demonstrate by clear and convincing evidence that she was the person responsible for the conditions that led to C.O. being placed in foster care and the evidence was insufficient to...