Stanley v. Bristol Dep't of Soc. Servs. Jason M. Stanley

JACKLYN D. STANLEY v. BRISTOL DEPARTMENT OF SOCIAL SERVICES JASON M. STANLEY v. BRISTOL DEPARTMENT OF SOCIAL SERVICES

Record No. 1189-16-3

Record No. 1449-16-3

COURT OF APPEALS OF VIRGINIA

MARCH 28, 2017

UNPUBLISHED

Present: Judges Humphreys, Petty and Chafin

Argued at Lexington, Virginia

MEMORANDUM OPINION^* BY JUDGE ROBERT J. HUMPHREYS

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL

Sage B. Johnson, Judge

Robert L. Black, Jr. (Jim Williams & Associates Attorneys at Law, LLC, on brief), for appellant Jacklyn D. Stanley.

David Eddy (Law Offices of David Eddy Attorney at Law, PLLC, on brief), for appellant Jason M. Stanley.

Edward G. Stout (Joshua P. Sutherland, III, Guardian ad litem for the minor children; Holston Legal Group, on briefs), for appellee.

Jason M. Stanley ("Jason" or "father") and Jacklyn D. Stanley ("Jackie" or "mother") (collectively the "parents") consolidated their respective appeals regarding the May 26, 2016 decision of the Circuit Court of the City of Bristol (the "circuit court") to terminate their respective residual parental rights of their two children, namely a daughter, P.S., and a son, J.Z. The parents assert that the circuit court erred when it terminated their respective parental rights because the Bristol Department of Social Services (BDSS) failed to: (1) prove, by clear andconvincing evidence, without good cause, that the parents had been unwilling or unable within a reasonable period of time not to exceed twelve months from the date the children were placed in foster care to remedy substantially the conditions which led to or required continuation of the children's foster care placement, notwithstanding the reasonable and appropriate efforts of social, medical, mental health, or other rehabilitative agencies to such end, pursuant to Code § 16.1-283(C)(2); (2) prove, by clear and convincing evidence, that it is in the best interests of both children that their respective parental rights be terminated pursuant to Code § 16.1-283¹; and (3) meet its burden to show that no reasonable alternatives existed to termination.

"When reviewing a termination of a parent's residual parental rights, it would be unfitting to not acknowledge that '[t]he termination of parental rights is a grave, drastic and irreversible action.'" Farrell v. Warren Cty. Dep't of Soc. Servs., 59 Va. App. 375, 400, 719 S.E.2d 329, 341 (2012) (quoting Helen W. v. Fairfax Cty. Dep't of Human Dev., 12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)). For such cases, this Court presumes that the circuit 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)). Furthermore, "the evidence is viewed in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom." Logan v. Fairfax Cty. Dep't of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991). 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 caseinvolving termination of parental rights, the circuit 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." Eaton v. Wash. Cnty. Dep't of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016) (quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659). Thus, this Court will not reverse the circuit court's judgment terminating the mother's and the father's parental rights unless the evidence, viewed in the light most favorable to BDSS, was insufficient to support it.

Code § 16.1-283(C) states in pertinent part:

The residual parental rights of a parent or parents of a child placed in foster care as a result of court commitment, an entrustment agreement entered into by the parent or parents or other voluntary relinquishment by the parent or parents may be terminated if the court finds, based upon clear and convincing evidence, that it is in the best interests of the child and that:

1. The parent or parents have, without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child for a period of six 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 or parents and to strengthen the parent-child relationship . . . ; or

2. 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. Proof that the parent or parents, without good cause, have failed or been unable to make substantial progress towards elimination of the conditions which led to or required continuation of the child's foster care placement in accordance with their obligations under and within the time limits or goals set forth in a foster care plan filed with the court or any other plan jointly designed and agreed to by the parent or parents and a public or private social, medical, mental health or other rehabilitative agency shall constitute prima facie evidence of this condition. The court shall take into consideration the prior efforts of such agencies to rehabilitate the parent or parents prior to the placement of the child in foster care.

Pursuant to Code § 16.1-283(C) the "trial judge must make two separate inquiries in order to terminate parental rights." Richmond Dep't of Soc. Servs. v. Crawley, 47 Va. App. 572, 579, 625 S.E.2d 670, 673 (2006). The court must find that BDSS has "met its burden of proving, by clear and convincing evidence: (1) that termination is in the best interests of the child; and (2) that the parent has not maintained a relationship with the child or remedied the conditions that led to foster care placement." Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 46, 764 S.E.2d 284, 290 (2014). "This statutory scheme is designed to protect the rights for the parents and their child and must be strictly followed before the courts are permitted to sever the natural bond between parent and child." Thach v. Arlington Cty. Dep't of Human Services, 63 Va. App. 157, 169, 754 S.E.2d 922, 928 (2014) (quoting Layne v. Layne, 61 Va. App. 32, 36-37, 733 S.E.2d 139, 140 (2012)). Because the appellants' first and second assignments of error simply separate the two-prong test that is required by Code § 16.1-283(C), we will consider those assignments of error together.

"The first prong of [Code § 16.1-283(C)] is to determine the child's best interests." Id. "[T]here is no simple, mechanical, 'cut and dried' way" to apply the best interests of the child standard. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Instead, "the question must be resolved . . . in light of the facts of each case." Welch, 64 Va. App. at 48, 764 S.E.2d at 291.

In determining what is in the best interests of the child, the circuit court must evaluate and consider many factors: the age and physical and mental condition of the child; the age and physical and mental condition of the parent; the relationship existing between the parent and the child; the needs of the child; the role the parent has played, and will play in the future, in the upbringing and care of the child; and any other such factors that are necessary.

Thach, 63 Va. App. at 169, 754 S.E.2d at 928.

In this case, the mother argues that the circuit court limited its analysis of the children's best interest to the "special needs" of "the children and the mother's inability to meet those needs." The mother believes the circuit court erred because it was impressed with the testimony of Dr. Erin Jurich-Finney ("Dr. Jurich-Finney), a clinical psychologist, regarding J.Z. and neglected to provide any analysis with respect to the remaining factors. The mother argues that in reviewing all of the enumerated factors, the evidence introduced at trial was insufficient as a matter of law to prove by clear and convincing evidence that termination was in the best interest of each child.

The mother solely highlights the evidence most favorable to her cause. First, she points to statements made by Linda Comer ("Comer"), a licensed professional counselor. Comer testified as an expert in parental counselling and stated that the visits between the mother and her children went well and any small issues were handled appropriately. Additionally, during visits, Comer did not have any concerns about the mother managing the children. Next, the mother points to the notes of Dr. Wayne Lanthorn ("Dr. Lanthorn"), a clinical psychologist. Specifically, the mother highlights that Dr. Lanthorn wrote, "in the examiner's opinion, no strong clinical evidence was found that would lead to discouraging the [circuit c]ourt or the [BDSS] from not retuning her two younger children to her care."

However, the mother completely ignores Dr. Jurich-Finney's testimony. First, Dr. Jurich-Finney testified that the mother's attendance at the family therapy meetings was sporadic. Then, after the mother gave birth to another child not involved in this case, J.Z. was not happy and the mother was less regular in coming to the appointments. Dr. Jurich-Finney stated that the mother's demeanor and appearance were different each time. Sometimes she was well dressed, fully present, and able to connect. On other days, she seemed lost....