Rucker v. Alexandria Dep't of Cmty. & Human Servs.

IVAN RUCKER v. ALEXANDRIA DEPARTMENT OF COMMUNITY AND HUMAN SERVICES

Record No. 0931-17-4

COURT OF APPEALS OF VIRGINIA

APRIL 24, 2018

UNPUBLISHED

Present: Chief Judge Huff, Judges Alston and Russell

MEMORANDUM OPINION^* BY JUDGE ROSSIE D. ALSTON, JR.

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Lisa B. Kemler, Judge

(Isabel Kaldenbach; Isabel Kaldenbach, PLLC, on brief), for appellant. Appellant submitting on brief.

(James L. Banks, City Attorney; George McAndrews, Assistant City Attorney; Christopher T. Mays, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Ivan Rucker (appellant) argues that the trial court erred in terminating his parental rights for four reasons: the trial court 1) relied upon a document not available to all parties; 2) applied the incorrect evidentiary standard; 3) improperly found that the Department of Community and Human Services (DCHS) provided adequate services; and 4) incorrectly found that DCHS provided the requisite evidence to support termination. We disagree.

BACKGROUND

Appellant and Jamillia Hansford (Hansford) are the biological parents of a minor child, E.H. E.H. was born on June 19, 2015. After conducting an investigation, DCHS removed E.H. from Hansford's care five days later. DCHS filed an emergency removal petition and affidavit with the Alexandria Juvenile and Domestic Relations District Court (J&DR court). The affidavitdocumented that Hansford is infected with the human immunodeficiency virus (HIV) and may have transmitted the disease to E.H. Even so, Hansford does not medicate herself or E.H. as directed. It was also alleged that Hansford has substance abuse issues and used marijuana while pregnant. And while residing at Alexandria Community Shelter (ACS), Hansford left E.H. "unattended or with another resident at least four times after being instructed not to do so." Hansford was also recently hospitalized for psychosis. It was also noted that appellant was incarcerated at the time E.H. was removed until October of 2015. The J&DR court entered an order on June 25, 2015, finding that E.H. "would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result."

At the preliminary removal hearing, the J&DR court made the same findings, awarded temporary legal custody to DCHS, provided visitation to Hansford, and entered a preliminary child protective order against Hansford on behalf of E.H. Hansford objected to a finding of abuse or neglect, and an adjudicatory hearing was set for July 31, 2015. At that hearing, the J&DR court found that E.H. was abused or neglected. As a further incident of that hearing, the J&DR court also ordered appellant to submit to a paternity test. Appellant signed the adjudicatory order seen and objected, noting a "lack of evidence of abuse/neglect by [him.]" A dispositional hearing was set for August 31, 2015. DCHS filed its foster care plan with the J&DR court with the goal of return home and outlined services offered and concerns to be remedied by Hansford and appellant before return home was possible.

At the dispositional hearing, the J&DR court transferred custody of E.H. to DCHS and entered a final child protective order. The J&DR court revised the foster care plan to include relative placement as a concurrent goal, ordered Hansford and appellant to "utilize their best efforts" to comply with the plan, and directed DCHS to continue "to utilize reasonable efforts inmaking appropriate service referrals." A review hearing was set for December 17, 2015. Appellant signed the order seen and objected to.

On October 13, 2015, the paternity test established that the probability appellant was E.H.'s father was 99.99%. Appellant was released from incarceration on October 15, 2015.

At the foster care review hearing, the J&DR court approved the foster care plan. The permanency planning hearing was set for April 6, 2016. Appellant signed the order noting that he "would like [E.H.] to be returned home sooner or . . . have overnight visits being with [Hansford]."

On March 7, 2016, DCHS filed a petition requesting a permanency planning hearing within six months with the goal of "Return Home/Relative Placement." DCHS filed a second petition on July 1, 2016 with adoption as the revised goal. At the permanency planning hearing on October 31, 2016, the J&DR court terminated appellant's and Hansford's parental rights regarding E.H and approved DCHS's updated foster care plan. Appellant and Hansford appealed to the Circuit Court of the City of Alexandria (trial court). On January 5, 2017, Hansford filed addendums for protected identifying information-confidential pursuant to Code § 20-121.03 regarding her parental capacity assessment. Hansford's counsel signed the addendum on her behalf.

The trial took place on May 2-3, 2017. DCHS attempted to admit the J&DR court's orders terminating Hansford's and appellant's parental rights and approving the foster care plan. Hansford objected, and appellant joined, arguing that this was a de novo hearing, and that the trial court was required to make independent findings, and that the evidentiary standard for the termination proceeding was clear and convincing, not preponderance. The trial court sustained the objection and did not admit the orders. DCHS also attempted to admit Hansford's parental capacity assessment, conducted by Dr. Christopher Bishop. Appellant objected, arguing he didnot have access to the assessment. DCHS responded that the J&DR court did not allow appellant access because Hansford asserted her right to privacy but would grant access if he "could show a compelling need for it." Furthermore, DCHS argued that appellant did not suffer prejudice as the assessment pertained to Hansford. In addition, DCHS filed a confidential addendum with the trial court. The trial court stated that appellant would need to establish that he would suffer prejudice if the assessment was admitted. The trial court found that Hansford would have to consent to give appellant access and then accepted DCHS's representation that the assessment minimally referenced appellant. Appellant next argued that he would suffer prejudice because he would not have the opportunity to cross-examine Dr. Bishop and that the trial court would have access to a document he does not. He further argued that a theme of DCHS's case is that appellant "does not understand [Hansford's] mental health issues" and that the assessment contains relevant information. DCHS responded that appellant could have subpoenaed Dr. Bishop. The trial court ruled that it would only consider Hansford's assessment against her and would allow appellant to cross-examine Dr. Bishop if necessary. The assessment was provisionally admitted. Appellant was not authorized to view the document.

DCHS presented its evidence. DCHS established that Hansford and appellant were ordered to comply with DCHS's foster care plan which required them to participate in services and remedy conditions requiring E.H.'s removal. DCHS explained, as stated in the affidavit, that removal was necessary "to ensure [E.H.] receives appropriate care and attention, has stability and [that] all of her needs are met." The conditions requiring E.H.'s removal were: "Hansford's lack of employment, homelessness, questionable mental health and recent psychiatric hospitalizations[,] poor decision making and [E.H.'s] need for daily medication and routine medical care." After E.H.'s paternity was established and upon appellant's release from incarceration, DCHS offered appellant case management services, family engagement services,referrals, follow-up services, a parental fitness evaluation, the Fathers In Touch program, visitation, and parenting education. Appellant received vocational services and housing assistance through other entities.

Appellant completed the Fathers in Touch program, underwent a mental health evaluation and a parental capacity assessment, and attended visitation. Dr. Mohamed Mansaray conducted appellant's parental capacity assessment. According to Dr. Mansaray, while appellant "has a great desire to be a parent and obviously cares about the wellbeing of [E.H.]," Dr. Mansaray concluded appellant presents a moderate risk of abuse and neglect to E.H. Appellant "holds expectations of [E.H.] that exceed her developmental capabilities" and "downplayed the difficulty that may arise from []Hansford's ongoing struggles with mental illness." Ultimately, his "ability to react appropriately to stressors, emotionally connect, obtain stable employment, establish secure housing, and demonstrate judgment effectively must improve in order for [the] risk to be decreased." Dr. Mansaray suggested that appellant be offered an individual parenting coach, a substance abuse assessment, individual counseling, and marital counseling. Appellant refused to undertake a substance abuse assessment, individual counseling, and marital counseling.

The evidence produced at trial established that even though both appellant and Hansford participated in services, DCHS grew increasingly concerned about appellant's and Hansford's ability to parent E.H. Hansford assaulted appellant in November of 2016. Hansford was required to provide updates on her physical health but failed to do so and remained noncompliant in taking her medication. In supervised visitations, appellant and Hansford were provided two parenting coaches; one focused on improving E.H.'s development and one focused on improving attachment. Initially, appellant and Hansford were engaged. However, it was unclear whether coachings were being applied outside of supervised visitations. Hansford's mental health issuespresented themselves more acutely over time. During visitations, Hansford would become "enraged." This resulted in appellant walking out of visitations. This pattern became more frequent. Later in March of 2016, appellant and Hansford arrived...