Inglese v. Albemarle Cnty. Dep't of Soc. Servs.

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KRISTEN INGLESE v. ALBEMARLE COUNTY DEPARTMENT OF SOCIAL SERVICES

No. 0482-22-2

Court of Appeals of Virginia

April 25, 2023

From the Circuit Court of Albemarle County Claude V. Worrell, Jr. Judge.

(Meghan Cloud; North Garden Legal Services, PLLC, on briefs) for appellant. Appellant submitting on brief. (Lauren E Bohdan, Assistant County Attorney; William M.

Marshall, Guardian ad litem for minor child; Sheila C. Haughey, Guardian ad litem for appellant; Albemarle County Attorney's Office; Marshall & Marshall, P.C.; Snook & Haughey, P.C., on brief), for appellee. Appellee and Guardians ad litem submitting on brief.

Present: Chief Judge Decker, Judges Huff and Callins

MEMORANDUM OPINION ^[*]

DOMINIQUE A. CALLINS JUDGE

Kristen Inglese ("Inglese") appeals the judgment of the Albemarle County Circuit Court ("circuit court") terminating her parental rights to her child, R.I.L., under Code § 16.1-283(B) and (C)(2). Inglese argues that the circuit court erred by failing to communicate its basis for not granting custody of R.I.L. to a person with a legitimate interest-the child's paternal grandmother- as required by Code § 16.1-283(A). Inglese also argues that the circuit court erred in terminating her parental rights because the foster care plan did not document that termination was in the child's best interests, as required by Code § 16.1-283(A). Finally, Inglese argues that the circuit court's termination decision was premature because her appeal of the circuit court's finding of abuse or neglect was still pending with this Court when her parental rights were terminated. For the following reasons, we affirm the circuit court's judgment, but we remand for the circuit court to communicate to the parties, either orally or in writing, its basis for not granting custody to the child's paternal grandmother.

BACKGROUND^[1]

"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." Simms v. Alexandria Dep't of Cmty. &Hum. Servs., 74 Va.App. 447, 452 (2022) (quoting Yafi v. Stafford Dep't of Soc. Servs., 69 Va.App. 539, 550-51 (2018)). Here, the Albemarle County Department of Social Services ("the Department" or "ACDSS") was the prevailing party.

R.I.L. was born on January 22, 2021 to Inglese and Robert Latham ("Latham"). Prior to R.I.L.'s birth, Inglese had received no prenatal care, could not report R.I.L.'s gestational age, and had planned to give birth at home, but went to the hospital due to pain. Inglese refused the routine newborn testing and post-natal treatment at the hospital, and subsequently missed a scheduled pediatric appointment. Following a call from the hospital expressing concern over R.I.L.'s well-being, the Department became involved in the case. An ACDSS Child Protective Services ("CPS") worker conducted a virtual call with Inglese and R.I.L., during which Inglese stated that she was a Buddhist, that "mothers know exactly what their children need," and that R.I.L. was healthy. A CPS investigator visited Inglese's home and observed that R.I.L.'s skin was yellow, that he had visible leg and rib bones, and that his demeanor was very quiet. R.I.L. was examined by a doctor, who recommended that R.I.L. be hospitalized due to malnourishment. At the time of the examination on February 19, 2021, R.I.L. weighed only 5 pounds and 11.5 ounces, which was less than his birth weight of 7 pounds and 1.8 ounces approximately 1 month before.

Inglese disputed the diagnosis of malnourishment and recommendation that R.I.L. be hospitalized, maintaining her belief that R.I.L. was "healthy." She agreed with CPS to a safety plan that would have her and Latham stay with the paternal grandparents, who would supervise R.I.L.'s feedings and ensure that he received supplemental formula. Inglese and Latham eventually left the paternal grandparents' home, in violation of the safety plan.

Another doctor expressed concern that R.I.L. "might die if he did not receive adequate nutrition," to which Inglese responded that "she did not believe in the medical profession" and that R.I.L. was not going to die because he was "surrounded by love and kindness." After examining R.I.L., the doctor observed that R.I.L. still looked "awful" and that it seemed as if mother "wanted [R.I.L.] to meditate instead of cry."

Inglese agreed to a second safety plan with CPS in which R.I.L.'s maternal grandmother, Pamela Inglese ("Pamela") would stay in the parents' home to assist with R.I.L.'s feedings and ensure he would be fed every three hours. During a home visit by CPS, CPS recommended that Pamela continue staying with the family. Inglese remarked that CPS's "bad energy" had caused R.I.L. to lose weight and that she "did not want to be involved with CPS anymore." On March 3, 2021, Pamela reported to CPS that she was afraid to remain in the parents' home due to Latham's violent behavior and believed it was in R.I.L.'s best interests to be placed out of the home. Pamela also reported that both parents had told her that they wanted her to leave the home, in violation of the second safety plan.

On March 4, 2021, the Department took custody of R.I.L. pursuant to an emergency removal order entered by the Albemarle County Juvenile and Domestic Relations District Court ("JDR court"), based on allegations that the parents had neglected R.I.L. by failing to provide him with adequate nutrition and medical care. Following R.I.L.'s removal, Inglese did not engage with any of the services recommended by the Department. Inglese failed to complete a psychological evaluation, a parenting capacity evaluation, a medical evaluation, and to participate in parent coaching. Inglese also missed a substantial portion of scheduled supervised visitation.

On March 23, 2021, the JDR court entered dispositional and adjudicatory orders finding that R.I.L. was an abused or neglected child under Code § 16.1-278.2. Inglese and Latham appealed to the circuit court, which heard the matter de novo on August 27, 2021. The circuit court affirmed the JDR court's finding of abuse or neglect and entered dispositional and adjudicatory orders transferring custody of R.I.L. to the Department. Inglese appealed the circuit court's finding of abuse or neglect to this Court, and we affirmed the circuit court's judgment on July 19, 2022. See Inglese v. Albemarle Cnty. Dep't of Soc. Servs., No. 1007-21-2 (Va. Ct. App. July 19, 2022).

Between March 2021 and January 2022, the Department filed three successive foster care plans, pursuant to Code § 16.1-281. The Department filed the first foster care plan on April 20, 2021, listing the goal of "[r]eturn to [o]wn [h]ome" and a concurrent goal of "[r]elative [p]lacement." It filed a second foster care plan on August 2, 2021, listing the goal of "[r]eturn to [o]wn [h]ome" and a concurrent goal of "[a]doption." On September 1, 2021, the JDR court rejected the second foster care plan and ordered the Department to submit a new plan. The Department filed a third foster care plan on September 13, 2021 with the goal of "[a]doption" and a concurrent goal "[t]o [b]e [d]etermined."

On November 3, 2021, the Department filed a petition for termination of Inglese's residual parental rights. After a hearing on November 22, 2021, the JDR court entered an order terminating Inglese's residual parental rights under Code § 16.1-283(B) and (C)(2). The JDR court also entered a permanency planning order approving the third foster care plan. Inglese appealed both orders to the circuit court, which held a de novo hearing on January 12, 2022.

During the de novo hearing, Inglese admitted that she did not complete any of the programs that the Department had asked her to complete. Instead, she "became involved with a church" where she taught "a class about nature," and she "also joined a mom meeting group about home-schooling." When asked why she did not take part in parent coaching and a psychological evaluation, Inglese replied, "I don't believe in that spiritually." Inglese refused to answer questions about her income. She also could not explain who owns the home where she lives and denied paying a mortgage or rent, instead explaining that she came to live in the home through "good Karma." Inglese denied any wrongdoing in her care of R.I.L. and maintained that her child "was not in danger of starvation." Inglese also disputed that she had been diagnosed with schizophrenia and would not discuss her prior hospitalization for her psychiatric issues.

R.I.L.'s paternal grandmother, Henrietta "Penny" Latham ("Penny"), testified for Inglese at the hearing. Penny testified that she was willing to have a positive, continuous relationship with R.I.L. if given custody of him, that she had a home that was suitable for R.I.L., that she had the ability to protect R.I.L. from future abuse and neglect, and that she would be able to hold boundaries with respect to R.I.L.'s contact with his parents. Inglese's counsel asserted that Penny was a person with a legitimate interest and asked the circuit court to consider granting Penny custody of R.I.L. if the court terminated Inglese's parental rights.

At the conclusion of the hearing, the circuit court terminated Inglese's parental rights to R.I.L. under Code § 16.1-283(B) and (C)(2) and granted custody of R.I.L. to the Department.

The circuit court also stated that it was not granting custody of R.I.L. to Penny at that time. The circuit court entered an order for involuntary termination of residual parental rights and a foster care review order on February 28, 2022. The circuit court did not communicate to the parties, either orally or in writing, the basis for its decision not to grant custody of R.I.L. to Penny. This...