Jessica Margaret Sites-Long v. Radford City Department of Social Services ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Athey and Friedman
JESSICA MARGARET SITES-LONG
MEMORANDUM OPINION* BY
v. Record No. 0755-21-3 JUDGE CLIFFORD L. ATHEY, JR.
MARCH 1, 2022
RADFORD CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RADFORD
Josiah T. Showalter, Jr., Judge
(Ryan D. Hamrick; Hamrick & Hamrick, P.C., on brief), for
appellant. Appellant submitting on brief.
(Anne Park Brinckman; Zachary B. Smith, Guardian ad litem for the
minor children; Brinckman & Brinckman, P.C., on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
Jessica Margaret Sites-Long (“mother”) appeals the termination of her parental rights in
the Circuit Court for the City of Radford (“circuit court”). On appeal, mother argues that the
circuit court erred in finding there was sufficient evidence to terminate her parental rights. For
the following reasons, we affirm.
I. BACKGROUND
Appellant is the mother of five minor children. Mother’s parental rights were initially
terminated in the Radford City Juvenile and Domestic Relations District Court (“the JDR
court”). Mother appealed the termination of her parental rights for a de novo trial in the circuit
court. The parental rights of the children’s father (“father”) had previously been terminated.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
At trial in the circuit court, Melissa Almond (“Almond”), a case worker for the Radford
City Department of Social Services (“the Department”), testified that she had been involved in
the children’s cases over a long period of time. She testified that in March of 2018, the
Department opened a Child Protective Services case against mother and father based on abuse,
“mental health instability, and domestic violence.” The JDR court had previously issued
preliminary child protective orders on March 20, 2018, based on a finding that “each of the
children had been abused and neglected.” Child protective orders were also subsequently
entered on September 14, 2018. The later orders required mother to take advantage of various
services for herself and the children. Almond testified to significant noncompliance by both
parents, including continued domestic violence. The JDR court amended the child protective
orders on April 26, 2019, forbidding mother and father from having contact together in front of
the children and from telling the children to hide information from their counselors. Mother and
father violated this order by meeting in front of their children, where they fought and “the police
were called.” As a result, the children were moved to foster care.
Despite being provided with “a full range of services” (constituting “the most intensive
services offered in [the] area”) before and during the foster care cases, mother and father failed
to resolve their domestic problems. At some point, father’s attempted suicide and “a domestic
situation” resulted in a television set being thrown through their car window. Mother was
arrested for and later convicted of a variety of crimes: “five counts of felony child
endangerment, five counts of contributing to the delinquency of a minor, a felony eluding
charge, an assault on a law enforcement officer, and a [charge of] profane/threatening language
over public airways.” Mother was prohibited from seeing her children as a condition of her
bond.
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Once, mother contacted the Department and asked to drop off some things for the
children. However, mother never did so and had no other contact with the Department. She
never visited with the children, either, despite the Department’s offer of visitation. She also
failed to appear for appointments for services, “yell[ed] and curs[ed]” during others, left one
before it was over, and rejected others. She also engaged in unauthorized contact with one of the
children through an intermediary. Mother claimed to have visited the children while they were
in the Department’s custody or while Department staff were present but pled the Fifth
Amendment on cross-examination to avoid answering questions about it.
Understandably, the children have suffered significantly. Continuances in the
termination case precipitated “crisis incidents” for “most of the children.” When the circuit court
heard the case, four children were in adoptive homes but one was in a residential treatment
program. The guardian ad litem recommended termination of parental rights because each child
had “suffered significant trauma.” His visits to discuss the case sometimes caused trauma to the
children, including “nightmares, flashbacks, and acting-out.” One child had recently “disclosed
significant abuse by the mother and father.” Two of the children said they wished to have
contact with their parents, but the other three wished not to have any further contact. The
Department recommended termination of parental rights to facilitate adoption.
Mother admitted to having been incarcerated much of the time since the children were
removed, and she blamed her period of incarceration for not having contacted or visited the
children and not having participated in many of the offered services. She claimed to have
improved herself during her incarceration but admitted she had been addicted to
methamphetamine in 2020. Mother claimed to have returned to her residence and begun seeking
a job, but she admitted her home had inadequate heating for winter months.
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The circuit court terminated her parental rights in each of the five children under Code
§ 16.1-283(B) and, in the alternative, under subsection (C)(1) and under (C)(2). This appeal
followed.
II. ANALYSIS
The record does not show that mother preserved her argument for appeal. Rule 5A:18
requires a contemporaneous objection to preserve an issue for appellate review, “except for good
cause shown or to enable this Court to attain the ends of justice.”
First, the good cause exception does not apply here. An appellant shows good cause for
failing to object by showing it had no opportunity to raise the objection. Perry v.
Commonwealth, 58 Va. App. 655, 667 (2011) (citing Luck v. Commonwealth, 32 Va. App. 827,
834 (2000)). Here, the good cause exception does not apply because mother’s brief does not
assert, and the record does not show, that she was unable to raise this issue below.
Second, the ends of justice exception does not apply here because the record indicates
that not only is there no clear evidence that a miscarriage of justice would occur, but there is
adequate evidence to support the circuit court’s decision to terminate mother’s parental rights.
“To invoke the ends of justice exception, an appellant must affirmatively show[] that a
miscarriage of justice has occurred[,] not . . . that a miscarriage might have occurred.” Id.(quoting Bazemore v. Commonwealth, 42 Va. App. 203, 219 (2004) (en banc)) (first and third
alterations in original) (emphasis in original) (internal quotation marks omitted). The error must
have been “clear, substantial[,] and material.” Id. at 668 (quoting Brown v. Commonwealth, 8
Va. App. 126, 132 (1989)). For instance, in a criminal case, the record must “clearly and
affirmatively” demonstrate that one of the elements of the crime never happened or that the jury
instructions on which the defendant were convicted did not contain every element. Ali v.
Commonwealth, 280 Va. 665, 671 (2010); Jiminez v. Commonwealth, 241 Va. 244, 251 (1991).
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In Virginia, a court may terminate a parent’s residual parental rights under any of several
statutory provisions contained in Code § 16.1-283. Here, the circuit court terminated mother’s
parental rights in the alternative pursuant to each of the following three subsections of Code
§ 16.1-283: (B), (C)(1), and (C)(2). Under subsection (C)(2), the court may terminate parental
rights where
[t]he 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.
The record in this case is bereft of substantial evidence which would have established that
mother’s rights should not have been terminated or that one or more of the elements of the
termination statute relied upon by the circuit court never occurred. The Department offered her
the full range of services and provided opportunities for her to have visitation with her children.
The children were in foster care for over a year because of her ongoing lack of fitness to take
care of them. The guardian ad litem recommended termination of parental rights because each
child had “suffered significant trauma.” He joined the Department’s brief on appeal.
Given her drug abuse, criminal convictions, inappropriate behavior during appointments
and failure to appear for other appointments, failure to visit the children when visits were
allowed, violations of the protective orders, and lack of adequate housing—not to mention one
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child’s enrollment in a residential treatment program and recent revelations by a child that the
mother and father engaged in significant abuse of that child—we believe no miscarriage of
justice occurred and the evidence was more than sufficient to terminate her parental rights under
Code § 16.1-283(C)(2). We need not address the alternative grounds provided by the circuit
court. See Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 574 n.9 (2018)
(citing Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs, 46 Va. App. 1, 8 (2005)).
III. CONCLUSION
Mother failed to show good cause for her procedural default. She also failed to show
good cause or that a miscarriage of justice would occur if we declined to excuse her procedural
default. Indeed, rather than showing that her rights should not have been terminated, the record
contains ample evidence to support the circuit court’s judgment.
Affirmed.
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