Thrasher v. Newport News Dep't of Human Servs.

TYEISHA ANTOINETTE THRASHER v. NEWPORT NEWS DEPARTMENT OF HUMAN SERVICES

Record No. 1323-17-1

COURT OF APPEALS OF VIRGINIA

AUGUST 14, 2018

UNPUBLISHED

Present: Judges Russell, AtLee and Malveaux

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Bryant L. Sugg, Judge

(Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant. Appellant submitting on brief.

(Shannon M. Manning, Senior Assistant City Attorney; Gary S. Nachman, Guardian ad litem for the minor children; Sarfan & Nachman, LLC, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

The Newport News Circuit Court ("circuit court") entered orders terminating the residual parental rights of Tyeisha Antoinette Thrasher ("mother") to two of her children, pursuant to Code § 16.1-283(C)(2). She appeals those orders, arguing that the circuit court erred in denying her motion to strike and terminating her rights because the Newport News Department of Human Services ("DHS") failed to prove, by clear and convincing evidence, that the termination criteria set forth in Code § 16.1-283(C) had been satisfied. For the reasons that follow, we affirm the circuit court.

I. BACKGROUND

We review the evidence in the light most favorable to DHS, the party that prevailed below, affording it all inferences that are fairly deducible from this evidence. See Bristol Dep't of Soc. Servs. v. Welch, 64 Va. App. 34, 40, 764 S.E.2d 284, 287 (2014).

Events Prior to Termination Proceedings

Mother and Carl Allen ("father") married in 2015 and had twin girls, C.A. and C.J., in November of that year. In February 2016, C.J. was admitted to the hospital for failure to thrive. While there, she received a chest x-ray that indicated rib fractures. Further tests revealed that C.J. suffered from a "pull and bend" fracture of her left leg, as well as old and new subdural hematomas. A physician indicated that these injuries were non-accidental, and on March 10, 2016, DHS received a referral alleging that C.J. had been abused.

The following day, DHS interviewed mother and father. Neither parent could explain C.J.'s injuries, and both denied causing them. Mother insisted that she was her children's primary caretaker and responsible for all of their care.

On March 15, 2016, C.A. visited the hospital for a complete body scan. That scan revealed healing humerus and rib fractures. The physician who conducted the scan reported that C.A.'s injuries were indicative of child abuse. DHS took the twins into custody and filed emergency removal petitions on their behalf. Those petitions stated that C.J. and C.A. had "multiple serious injuries that have been noted by the physicians . . . to be non-accidental. The parents cannot provide an explanation for these injuries." On March 16, the Newport News Juvenile and Domestic Relations District Court ("J&DR court") entered emergency removal orders for C.J. and C.A.

Following a May 10, 2016 hearing, the J&DR court entered adjudicatory orders finding that C.J. and C.A. were abused or neglected as defined in Code § 16.1-228(1). The J&DR courtalso entered dispositional orders which transferred custody of the children to DHS and approved initial foster care service plans with the goals of returning C.J. and C.A. to their home, with a concurrent goal of relative placement. The plans called for the parents to maintain stable employment and housing, complete parental capacity evaluations, participate in individual and family therapy, and take parenting classes. Father was also required to undergo a psychiatric evaluation, seek substance abuse treatment and medication management, and avoid criminal activity that would jeopardize his probation.

Dr. Jennifer Gildea, a licensed clinical psychologist, performed psychological and parenting capacity evaluations of mother and father on June 14, 2016. During mother's evaluation, mother revealed that she "felt [that] another family member [had] injured [the children]." Dr. Gildea recommended that mother receive parenting education to "improve her awareness of developmentally appropriate disciplinary techniques and non-corporal discipline techniques." She also recommended that both parents receive marital and family therapy and parenting coaching during any supervised contact with C.J. and C.A. Dr. Gildea specifically noted that if either parent "cannot be ruled out as an abuser, [their] contact with the children should remain supervised." At the conclusion of her evaluations, Dr. Gildea also stated that "[i]deally, it is recommended that polygraph testing of both parents be conducted in order to help gain further clarity about events leading up to the children's injuries, so that more pointed safety planning and placement decisions may be made for this family." Mother's evaluation concluded that she had "demonstrated a consistent pattern of failing to maintain stability and function with the addition of life stressors." Further, "[t]he ongoing risks of her inability to protect her children are considered very high, while her prognosis for sustained stability over an extended period of time is considered very low." DHS provided copies of Dr. Gildea's evaluations to mother and father and reviewed her recommendations with them.

An initial foster care review hearing occurred on August 5, 2016. Following the hearing, the J&DR court entered orders continuing the goals of returning the children to their home, concurrent with relative placement. However, relative placement efforts were unsuccessful and mother and father were unable to provide the names of additional placement candidates.

During the summer and fall of 2016, mother, who was serving in the United States Navy, received and completed parenting classes through the military. Father received and completed individual therapy through the military, and both mother and father received structural family therapy through DHS. Neither parent participated in the polygraph testing recommended by Dr. Gildea. Father did not complete his psychiatric evaluation, assessment for medication management, drug treatment, or regular drug screenings. He was not forthcoming with DHS about his drug use and criminal activities, and was only intermittently employed. DHS did not offer parenting coaching to mother and father during this time, because parenting coaching was an in-home service and matters had not progressed sufficiently for C.J. and C.A. to return home. DHS conducted a number of supervised visitations, during which mother was the main caretaker for the children. DHS asked mother and father whether C.J. and C.A. were ever alone with other individuals during the period when their injuries occurred. The parents indicated they were their children's main caretakers, and father never admitted to third parties being with the children.

DHS also provided structural family therapy to mother and father. During this therapy, mother did not deny that C.A. and C.J. had suffered abuse or mistreatment. She also stated she did not believe she was responsible for it. Father never admitted any responsibility for the abuse. The foster care social worker assigned to C.A. and C.J. also discussed the children's injuries with mother and father, and they were unable to offer her a reasonable explanation of their daughters' injuries. Neither parent indicated that the other parent was responsible for the injuries, and although they said that when they visited relatives in Maryland they "felt like something hadhappened . . . , they weren't sure." Neither mother nor father ever provided DHS with information about the possible source or sources of the injuries which DHS could investigate.

Termination Proceedings and Subsequent Events

On December 2, 2016, DHS filed petitions for permanency planning hearings and new foster care service plans for C.A. and C.J. Those documents reflected new goals of adoption for the twins, and noted that while mother had made "some progress," she also "ha[d] been challenged with engaging in her services." Further, during visitations, she would frequently "daydream and have a flat affect." In recommending that the goals for C.J. and C.A. be changed to adoption, DHS noted "several contributing factors to include parents' lack of sufficient progress with their service plan responsibilities, housing and employment stability, and viable relative placement options." In particular, DHS stated its "great concern for the children's safety and well-being due to the parents' . . . lack of honesty regarding the abuse the children experienced" prior to their removal. Mother had denied she was responsible for the injuries to her children and told Dr. Gildea she felt that another family member was the abuser, but "has kept that person a secret" and "not held that family member responsible." DHS concluded that "[d]ue to this, [mother] has not shown the agency that she can prevent and protect her children from bodily harm," and there remained "a great concern on [sic] whether or not [mother] will be able to protect her children from neglect and abuse in the near future." On December 6, 2016, DHS filed petitions to terminate mother's residual parental rights to C.J. and C.A.

Also in December, mother left the Navy at the conclusion of her enlistment. Rasheena Harris, a family engagement worker with DHS, noted that around that time, mother began experiencing difficulty maintaining stable housing, employment, and transportation. Father told Harris "there [were] some disputes between himself and [mother] which caused the housing folks to force them to leave" their apartment, and mother and father began living with relatives inNorfolk. Mother had lost her vehicle, and both mother and father began to miss scheduled visitations, or to arrive late or cancel them at the last minute. Mother was expecting another child, and moved to Baltimore for family support. Harris noted that mother's relocation made it difficult to coordinate visitations, and...