Cecil Moore v. Lee County Department of Social Services ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED
CECIL MOORE
MEMORANDUM OPINION*
v. Record No. 0756-15-3 PER CURIAM
NOVEMBER 10, 2015
LEE COUNTY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF LEE COUNTY
Tammy S. McElyea, Judge
(Lisa Ann McConnell, on brief), for appellant. Appellant
submitting on brief.
(Gregory D. Edwards; C. M. Callahan, Guardian ad litem for the
minor children, on brief), for appellee. Appellee and Guardian ad
litem submitting on brief.
Cecil Moore (father) appeals the orders terminating his parental rights to his two minor
daughters. Father argues that the trial court erred in granting the petitions to terminate father’s
parental rights, which were filed by Lee County Department of Social Services (the Department),
because (1) the “Department’s decision to deviate from its own policy and accelerate the foster care
time line to petition for termination of [father’s] residual parental rights was based solely upon
[father’s] being incarcerated and after the children’s mother having unilaterally agreed to execute an
entrustment agreement;” (2) the “Department failed to offer services to [father], to investigate if any
services were available to [father] or to communicate with [father] what services would need to be
completed by [him] in order for [him] to be reunited with his children as required by statute;” and
(3) the “trial court’s failure to reconsider its decision to terminate [father’s] residual parental rights
in light of a subsequent reduction in sentence and before a final hearing on [father’s] petition for
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
compassionate release pending before the federal court was arbitrary and prejudicial to [his]
parental rights.” Upon reviewing the record and briefs of the parties, we conclude that the trial court
did not err. Accordingly, we affirm the decision of the trial court.
BACKGROUND
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).
So viewed, the evidence proved that father has two daughters, who were born in 2007 and
2009. The Department first became involved with the family in 2010. At that time, the children
were living with father and there was a drug raid at the home. Father was arrested and convicted of
several charges. He was sentenced to prison in the federal system.1 The children briefly entered
foster care, and then the children’s paternal grandfather obtained custody of the children. Although
the paternal grandfather had custody of both children, one child was living with a paternal aunt in
May 2014.
On May 9, 2014, the Department received a telephone call from a local hospital because the
medical staff suspected that one of the children had been sexually abused. Due to the injuries and
allegations, the Department obtained an emergency removal order for both children. When the
children came into the Department’s care, they had “extreme” lice and dirty clothes. One of the
children had sores from MRSA that had not been treated. Both children had developmental delays,
and one child had a speech impediment.
1
At the time of the circuit court hearing, father’s expected release date was August 12,
2018.
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The Department sent letters and copies of the service plans to father in prison to advise him
of the children’s situation. Father did not respond to the Department’s correspondence.2 The social
worker also tried to contact his case manager in prison, but was never able to speak with the case
manager.
While in prison, father completed several drug abuse programs, two parenting classes, and
an inmate skills development plan. Father told the social worker that when he was released from
prison, he anticipated living with his family. He testified that he would live in one of the rental
properties owned by the children’s paternal grandfather.
The social worker testified that the children have “blossomed” in foster care. The children
received counseling, and one of the children participated in speech therapy and occupational
therapy.
The children’s mother, Rosa Lee Moore, decided that she was unable to take care of the
children and told the Department that she was willing to sign an entrustment agreement. In
December 2014, the Department filed petitions to terminate father’s parental rights.
On January 27, 2015, the Lee County Juvenile and Domestic Relations District Court
terminated father’s parental rights to his two daughters. Father appealed to the circuit court. On
April 6, 2015, the parties appeared before the circuit court to present their evidence and argument.
The circuit court entered an order terminating father’s parental rights to both children pursuant to
Code § 16.1-283(B).
Father subsequently filed a motion to reconsider because the federal court reduced his
sentence by twenty months. He asked the trial court to set aside the April 6, 2015 order and direct
the Department to file a new foster care plan with a goal of return home. On April 24, 2015, the
2
Father testified that he did not receive all of the Department’s correspondence because
he was being transferred within the prison system.
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trial court heard arguments on father’s motion. Counsel informed the trial court that father’s
expected release date would be late 2016 or early 2017. The trial court noted that father’s release
date was still more than a year away, and it denied the motion to reconsider. This appeal followed.
ANALYSIS
“Where, as here, the court hears the evidence ore tenus, its finding is entitled to great
weight and will not be disturbed on appeal unless plainly wrong or without evidence to support
it.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16
(1986) (citation omitted). When considering termination of parental rights, “the paramount
consideration of a trial court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d
at 463.
Assignment of error #1
Father argues that the trial court erred in terminating his parental rights because the
Department’s decision to petition for termination of parental rights earlier than normal was “based
solely” on father’s incarceration. On cross-examination, the social worker admitted that “the
children would normally be in the department’s care for a year or more before [it] would consider
adoption.” However, in this case, the Department filed the petitions to terminate parental rights
after the children had been in foster care for approximately eight months.
Contrary to father’s arguments, the Department’s decision to file petitions to terminate
parental rights was not based “solely” on father’s imprisonment. There was evidence that father had
limited contact with the children prior to his incarceration. When he was arrested in January 2010,
the oldest child was approximately two and a half years old, and the youngest child was only six
months old. He admitted that he had not built a relationship with his youngest child. As a result of
his arrest, father has a founded Level One complaint of child abuse and neglect. Although the
Department had sent correspondence to father about the foster care process, he did not respond.
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While long-term incarceration does not, per se, authorize
termination of parental rights . . . it is a valid and proper
circumstance which, when combined with other evidence
concerning the parent/child relationship, can support a court’s
finding by clear and convincing evidence that the best interests of
the children will be served by termination.
Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).
The evidence proved that the Department considered more than father’s imprisonment when
it decided to file the petitions to terminate father’s parental rights. It also considered the children’s
situation prior to the removal. The children came into the Department’s care because there were
allegations of sexual abuse. They also were dirty and developmentally delayed. Despite the
evidence regarding the children’s condition, father proposed that the children be returned to the
paternal grandfather to await father’s release from prison. The trial court was concerned that
father suggested placing the children back in the environment from which they were removed.
The trial court did not err in terminating father’s parental rights.
Assignment of error #2
Father argues that the trial court erred in terminating his parental rights because the
Department did not provide him with services or notify him of available services while he was
incarcerated.
This Court addressed a similar argument in Harrison v. Tazewell County Dep’t of Soc.
Servs., 42 Va. App. 149, 590 S.E.2d 575 (2004), and we stated:
[W]e find no merit in [father’s] contention on appeal that Code
§ 16.1-283(C)(2) required the Department to offer him services
during his incarceration. It would be patently unreasonable to
require the Department, under such circumstances, to continue to
offer services. . . . Thus as long as he was incarcerated, the
Department would have had no avenue available to offer [father]
services aimed at assisting him in regaining custody of the child.
Id. at 163-64, 590 S.E.2d at 583.
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Likewise, Code § 16.1-283(B) does not require the Department to provide services to father
during his incarceration. Even though the Department was not required to provide services to
father, it still kept him informed of the situation. The social worker testified that she sent father
letters to update him on the children and the foster care process. She explained that the Department
would not offer services to him while he was incarcerated; however, she normally calls the case
manager to discuss what services are available to the parent while he is in prison. The social worker
left messages for father’s case manager, but no one called her back. In addition, the social worker
provided father’s address to the clerk’s office so that he would receive copies of the foster care plan.
Accordingly, the trial court did not err in terminating father’s parental rights because the
Department was not required to provide him services while he was incarcerated.
Assignment of error #3
Father argues that the trial court abused its discretion in not reconsidering its decision to
terminate his parental rights after he informed the court that his prison sentence was reduced by
twenty months.
During the termination of parental rights hearing, the trial court learned that father’s
anticipated release date was August 12, 2018. He testified that he was asking the federal court to
reconsider his sentence in light of amended sentencing guidelines and to consider compassionate
release.3 After the termination of parental rights hearing, the federal court reduced father’s sentence
by twenty months based on the amended guidelines.
Father then filed a motion with the trial court in this case and asked the court to reconsider
the decision to terminate his parental rights because of the reduction in his prison sentence. Counsel
3
The record does not indicate whether the federal court ruled on father’s request for
compassionate release.
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informed the trial court that father anticipated being released in late 2016 or early 2017. The trial
court denied the motion to reconsider because father’s release date was more than a year away.
“It is clearly not in the best interests of a child to spend a lengthy period of time waiting
to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.”
Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
The trial court considered father’s reduction in prison time. However, if father were
released in late 2016 or early 2017, the children would have been in foster care for two to three
years. As noted during the trial, father would still need to complete services after he was
released from prison, so he would not be in a position to take the children when he was released.
Father testified that he would rely on the paternal grandfather for assistance when he was
released, and the trial court was concerned that the children would be placed back in the
environment from which they were removed.
Considering the totality of the record, the trial court did not err in terminating father’s
parental rights.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
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