Ferguson v. Roanoke City Dep't of Soc. Servs.

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KATHERINE AMANDA FERGUSON v. ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES

No. 1900-22-3

Court of Appeals of Virginia

December 28, 2023

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE J. Christopher Clemens, Judge

John S. Koehler (The Law Office of James Steele, PLLC, on brief) for appellant.

Jennifer L. Crook, Assistant City Attorney (Timothy R Spencer, City Attorney; L. Brad Braford, Guardian ad litem for the minor child, on brief), for appellee.

Present: Judges Causey, Lorish and White Argued at Salem, Virginia

MEMORANDUM OPINION ^[*]

DORIS HENDERSON CAUSEY, JUDGE

Katherine Amanda Ferguson (mother) appeals the circuit court's order terminating her parental rights under Code § 16.1-283(B) and (C)(2) and approving the foster care goal of adoption. On appeal, mother argues that the circuit court erred in finding the evidence sufficient to terminate her parental rights under Code § 16.1-283(B) and (C)(2). Mother claims the circuit court erred in concluding that the child had been subject to abuse and neglect and that it was in the best interests of the child to terminate mother's parental rights. Finding no error, we affirm the decision of the circuit court.

BACKGROUND^[1]

Katherine A. Ferguson is the biological mother to the child, who was one week old at the time of removal.^[2] The Roanoke City Department of Social Services (the Department) became involved when the Roanoke City Police received a report that mother "had just given birth [to the child] on the back porch of an abandoned home. The child was laying on the back porch, not moving." The police had previous involvement with mother because mother had a history of substance abuse and was a "known transient." Mother had been "staying in an abandoned house" at the time of the child's birth.

Emergency medical services personnel (EMS) transported mother and the child to the hospital. Mother informed EMS that "she smoke[d] a pack of cigarettes a day, drank during her first trimester and used amphetamines during her pregnancy." The child was born substance-exposed. At the hospital, the child "appeared to be dirty" and was still attached to mother's placenta. The Department spoke with mother at the hospital, during which mother behaved erratically. Mother informed the Department that she had bipolar disorder, severe depression, and borderline personality disorder, but was not taking any medicine for her mental health. Two days following the child's birth, mother was admitted to inpatient psychiatric treatment under a temporary detention order "due to aggressive and threatening behavior."

A few days later, mother's doctor "cleared her to be of mental capacity to make decisions regarding the placement for" the child. Mother advised that the child's maternal grandfather could serve as a placement, but he later "changed his mind" and "was not in a position" to care for the child. Mother informed the Department that no other family members could care for the child, and the child entered foster care in April 2021.

The Roanoke City Juvenile and Domestic Relations District Court (the JDR court) subsequently adjudicated that the child was abused or neglected. The JDR court entered a dispositional order, which mother did not appeal.

Following the child's removal, the Department offered mother several services, including case management, a substance abuse assessment, "inpatient or outpatient treatment upon determining [mother's] needs," drug screenings, referrals for psychological and parental capacity evaluations, and assistance in locating suitable housing and employment. The Department also offered ongoing supervised visitations with the child. Mother was initially compliant with case management services and visitations with the child, but her participation became "sporadic."

Mother "attended two different substance abuse treatment programs, having left and been discharged from both." In June 2021, after she tested positive for methamphetamine and marijuana, mother was admitted for inpatient substance abuse treatment. The treatment program administratively discharged her on July 5, 2021, "due to aggressive behavior, verbal aggression and non-compliance."

Police arrested mother on October 6, 2021, for arson after receiving a report that she "attempted to burn someone's belongings while living on the streets." Mother was in jail for about 30 days, and upon release, attempted to contact the Department.^[3] The Department tried to reach back out to mother, but they were unable to reach her. Mother had no contact with the Department from October 2021 until March 2022.

Based on the Department's "ongoing concerns" about mother's "substance abuse and instability, homelessness, and mental health issues," the Department petitioned for the termination of mother's parental rights. On March 29, 2022, the JDR court entered a permanency planning order approving the goal of adoption. The JDR court entered an order terminating mother's parental rights on May 31, 2022. Mother appealed the JDR court's orders to the circuit court.

The parties appeared before the circuit court on November 29, 2022. The Department offered testimony that the child "was thriving" and "doing phenomenal" in the foster care placement. The child had been in foster care essentially since birth, and had established a familial relationship with the foster family. The child had no relationship with mother, as the last time mother saw the child was in September 2021. Although the child had no health concerns and was developmentally on track, the child was receiving ongoing physical and occupational therapy to address some issues with muscle tone and fine motor skills.

Mother testified that she had been engaged in intensive substance abuse treatment at Blue Ridge Behavioral Healthcare (Blue Ridge) since the JDR court terminated her parental rights and that, since entering treatment, she had regularly tested negative for drug use. Mother's probation officer testified that before she entered treatment, mother had "multiple" positive drug screens and was not compliant with services. However, she also testified that since mother started in substance abuse treatment, she had tested negative for drugs and was engaged in treatment and therapy. Mother also had started attending counseling and taking medicine for her mental health after the JDR court's rulings. Counselors at Blue Ridge assisted mother with her monthly expenses, and with obtaining housing and applying for disability benefits. The housing support, however, only covered mother, and would not cover the child; mother would need to obtain different housing if she had custody of the child. Mother testified that she loved the child and asked the circuit court for a chance to be the child's mother. Mother stated that she had "changed so much," after engaging in therapy and treatment.

At the close of evidence, the Department argued that the evidence was sufficient to prove that the child was abused and neglected because the child was born outside on a back porch, "was observed to be dirty in the hospital," and mother had used drugs during the pregnancy. The Department acknowledged mother's recent progress leading up to the circuit court hearing, but contended that this progress did not begin within a reasonable time. Mother argued that she had been "doing well for a period of over five months" and had "the ability to provide for the child and to make a home for the child." In asking the circuit court to deny the termination petition, mother alleged that the child would be unaware if she needed "another year" to try to reunite with the child.

After considering the parties' arguments and evidence, the circuit court concluded that the evidence supported termination under both Code § 16.1-283(B) and (C)(2). The circuit court acknowledged and commended mother's work on her sobriety and mental health. The circuit court, however, emphasized how long the child had been in foster care. The circuit court found that the child had bonded with the foster family, but did not have a bond with mother. The circuit court entered orders terminating mother's parental rights and approving the foster care goal of adoption. Mother appeals.

ANALYSIS

Mother argues that the circuit court erred in terminating her parental rights. "'On review of a trial court's decision regarding the termination of parental rights, we presume the trial court "thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests."'" Joyce v. Botetourt Cnty Dep't of Soc. Servs., 75 Va.App. 690, 699 (2022) (quoting Norfolk Div. of Soc. Servs. v. Hardy, 42 Va.App. 546, 552 (2004)). "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." Simms v. Alexandria Dep't of Cmty. & Hum. Servs., 74 Va.App. 447, 470 (2022) (quoting Fauquier Cnty. Dep't of Soc. Servs. v. Ridgeway, 59 Va.App. 185, 190 (2011)).

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

"[S]ubsection C termination decisions hinge not so much on the magnitude of the problem that created the...