Latisa Danielle Hubbard v. Lynchburg Department of Social Services ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Ortiz and Causey
UNPUBLISHED
LATISA DANIELLE HUBBARD
MEMORANDUM OPINION*
v. Record No. 0007-22-3 PER CURIAM
JANUARY 17, 2023
LYNCHBURG DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
James F. Watson, Judge
(Jordan B. Davies; Jordan B. Davies, PLLC, on brief), for appellant.
Appellant submitting on brief.
(Susan L. Hartman, Assistant City Attorney; Yvonne Z. Schewel,
Guardian ad litem for the minor children, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Latisa Danielle Hubbard (“mother”) appeals orders entered by the Circuit Court of the City
of Lynchburg (“circuit court”) terminating her residual parental rights to her two children, K.H. and
T.H.1 (collectively “the children”) and approving the foster care goal of adoption. On appeal,
mother argues that there was insufficient evidence to support the involuntary termination of her
parental rights. She asserts that her “continued involvement in the lives of her children,
demonstrates her ability to make changes in her life.” Because there is clear and convincing
evidence to support the circuit court’s finding that (1) termination of mother’s residual parental
rights was in the best interest of the children and (2) mother’s residual parental rights regarding a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We use initials, instead of the children’s names, in an attempt to better protect their
privacy.
sibling of the children had previously been involuntarily terminated, we affirm. See Code
§ 16.1-283(E)(i).
BACKGROUND2
“On appeal from the termination of parental rights, this Court is required to review the
evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep’t of
Hum. Servs., 63 Va. App. 157, 168 (2014)).
Mother is the biological mother to six children, but only K.H. and T.H., who were five and
two years old, respectively, at the time of removal, are the subject of this appeal.3 In 2016, the City
of Lynchburg Juvenile and Domestic Relations District Court (“the JDR court”) terminated
mother’s parental rights to two of her older children under Code § 16.1-283(B) and (C)(2).
Mother did not appeal the rulings.
In June 2020, K.H and T.H. came to the attention of the Lynchburg Department of Social
Services (“Department”) due to a report of physical abuse from the police department. The police
department received a complaint from mother’s neighbor stating that she saw “a lady ‘doing
something to the child.’ The neighbor said she saw the child ‘fly’ across the room.” Another
neighbor informed the police that she witnessed mother pushing one child and “dump[ing] [the
2
The record in this case is sealed. Nevertheless, this appeal necessitates unsealing
limited portions of the record, including factual findings, to resolve the issues appellant has
raised. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record,
we unseal only those specific facts, finding them relevant to the decision in this case. The
remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283,
288 n.1 (2017).
3
K.H. and T.H. have different biological fathers. The City of Lynchburg Juvenile and
Domestic Relations District Court terminated the parental rights for both fathers, and neither
appealed.
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other child] like garbage.” The police notified the Department that mother had a criminal history of
child abuse.
The Department went to mother’s apartment and observed that it was in a “deplorable state”
with “clusters and clutters of clothes and all manner of things on the floor including but not limited
to shoes, toys, books, baskets, bottles of soda, bags of paper towels, etc.” The Department found the
children wearing only underwear and saw marks and bruises “all over” K.H.’s body. K.H. was
unable to tell the Department what happened “due to paucity of speech.” K.H., however, was able
to express to the Department “mom did, mom did,” while pointing to her bruises. Mother told the
Department that she became frustrated because K.H. could not find a bracelet and that she grabbed
K.H. by the arm and her fingernails caused the bruises on K.H.’s arm. A forensic exam of K.H.
revealed “multiple injuries” on the head, neck, torso, and extremities that were not injuries
“normally see[n] in normal childhood play.”
The Department informed mother that the children were being removed from the home “due
to the concerns of their safety and also due to the deplorable state of her apartment.” Mother gave
the Department permission to remove the children from the home.
Following the children’s removal, the Department provided services to mother, including
counseling and parenting coaching. The Department also approved mother for independent living
skills, designed to assist mother with day-to-day functional activities as well as the cleanliness and
hygiene of mother’s home. The Department required mother to undergo psychological, parenting,
and substance abuse assessments. The Department also recommended that mother engage in
domestic violence services.
The Department maintained regular contact with mother and reminded her of the importance
of participating in services. Mother began outpatient counseling and parenting education services in
October 2020 and the independent living services in March 2021. Although mother participated in
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both services, she did not “fully engage” and she “was very clear in both of those services . . . that
she didn’t have any areas . . . that she needed to address” and “that she felt like her parenting was
just fine.” Mother also did not comply with the domestic violence services.
Mother completed the psychological evaluation in April 2021. The evaluating psychologist,
Dr. Timothy Barclay, determined that mother’s “personality inventory” “indicated that she struggles
with personal incite [sic] and introspection into her own behavior and her circumstances, [she is]
very cynical and negative, [and] struggles with delusional type beliefs.” Dr. Barclay testified that
mother struggled with her “parenting capacity,” specifically with “task accomplishment,” which
refers to “the ability for her as a parent to engage children in active problem solving to solve daily
problems that come up.” Dr. Barclay found that mother had “psychological difficulties, such as
delusional type beliefs, depression, anxiety . . . and admitted to struggling with depression . . . .”
Dr. Barclay recommended that mother receive medication management and therapy to address her
psychosis, anxiety, and depression, but admitted that her “psychological difficulties” “would make
her resistant to treatment.” Dr. Barclay determined that the welfare of the children would be at risk
if mother did not receive active treatment for her mental health.
The Department supervised visitations between mother and the children. Many of the
visitations were virtual, via Zoom, due initially to the COVID-19 pandemic and then because of
mother’s newborn baby.4 Mother was resistant to resuming in-person visitations but did so when
the Department required it. During the in-person visits, mother “was not able to control” the
children or “re-direct” them and failed to put “appropriate boundaries or structure in place.” The
children would “physically fight,” and mother “did not get up to try to stop that.” Mother brought
flash cards and books to the visitations. She often took on the “role as a teacher an[d] it seemed like
4
Mother gave birth to a new child during the pendency of this matter, and mother
appears to have a pending case regarding visitation and custody of this child. Mother’s newborn
child is not subject to this appeal.
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she was far more comfortable in doing that than . . . doing the motherly role [with] connectiveness
or nurturing.”
The Department placed the children together in the same foster home, where they both
thrived. K.H. received an Individualized Education Program at school and speech services; she
showed improvement. Both children formed an attachment and bond with the foster family. The
foster family expressed interest in adopting the children.
In April 2021, the Department petitioned for termination of mother’s parental rights. The
Department was concerned about mother’s commitment to rectifying the circumstances that led to
the children’s placement in foster care. Mother made “minimal progress” toward the goal of
returning the children home. She continued to minimize her role in K.H.’s abuse and remained
reluctant to participate in mental health care treatment. Mother also failed to fully engage in the
services the Department offered to help her rectify the “safety issues” in her home, including
improving the clutter and cleanliness. The Department determined that mother failed to admit her
responsibility, she had “not been able to do any true and honest work with the service providers,”
and remained unable to meet the needs of K.H. and T.H.
In April 2021, the JDR court terminated mother’s parental rights and approved the foster
care goal of adoption. Mother appealed the JDR court’s rulings to the circuit court.
In October and November 2021, the parties convened for a hearing in the circuit court.5
During the trial, the Department admitted into evidence the 2016 orders terminating mother’s rights
to two of her older children. The Department presented evidence regarding the severity of the
physical abuse inflicted upon K.H. It also presented evidence that despite all the services offered,
5
At the time of the hearing, mother had pending criminal charges “in conjunction with
what occurred in reference to these children.” The Department admitted into evidence mother’s
indictment on charges of child endangerment and assault and battery against a family member
regarding the older child. The trial court continued mother’s criminal matter to the November
Term of 2021 to be set for trial. Charges were pending at the time of the termination hearing.
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mother still had not demonstrated significant progress or change at the time of the circuit court’s
hearing.
After hearing the evidence and arguments, the circuit court found it in the children’s best
interests to approve the foster care goal of adoption and terminate the mother’s parental rights under
Code § 16.1-283(C)(2) and (E)(i). The court found that there was clear and convincing evidence
that the children had been subjected to neglect and K.H. had been subjected to physical abuse. The
court determined that the children were initially placed in foster care due to the deplorable state of
the home and the signs of physical abuse on K.H.
In determining the children’s best interests, the court “considered the children’s ages, their
physical and mental conditions” in addition to the mother’s “age, physical and mental conditions,”
“relationships with the children[,]” “signs of physical abuse [to K.H.],” and “the services provided
by the Department of Social Services to [mother].” The court found that mother had a “complicated
psychological diagnosis” that “adversely [a]ffected her parenting and placed her children at risk.”
The court also found that the Department made reasonable efforts to provide mother with various
services, but mother was still unwilling or unable to substantially remedy the conditions. The final
order terminating mother’s parental rights and approving the foster care goal of adoption was
entered in December 2021. This timely appeal follows.
STANDARD OF REVIEW
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018) (alteration
in original) (quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)).
“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.” Fauquier
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Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania
Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).
ANALYSIS
Mother argues that the circuit court erred in terminating her parental rights under Code
§ 16.1-283(C)(2) because there was insufficient evidence to demonstrate that she was unwilling or
unable to substantially remedy the conditions that led to or required the continuation of the
children’s foster care placement. She asserts that she completed several of the required tasks,
consistently visited the children, and remained involved in their lives demonstrating “a willingness
and ability to relate to her children and attend to their physical, emotional, and educational needs.”
Mother also contends that her ability to raise her older adult daughter, with whom she continues to
live, suggests that she could adequately raise and care for K.H. and T.H. in the future. Mother does
not, however, challenge the sufficiency of the evidence to support termination under Code
§ 16.1-283(E)(i). Her failure to do so is fatal to her appeal because the uncontested finding of the
trial court independently provided a valid basis to terminate mother’s residual parental rights.
Mother’s waiver of her right to challenge the court’s decision under Code § 16.1-283(E)(i)
moots her claim. Terminations under Code § 16.1-283(C) and (E) provide distinct, “individual
bases upon which a petitioner may seek to terminate residual parental rights.” City of Newport
News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563 (2003). “[I]n ‘situations in which there
is one or more alternative holdings on an issue,’ the appellant’s ‘failure to address one of the
holdings results in a waiver of any claim of error with respect to the court’s decision on that issue.’”
Johnson v. Commonwealth, 45 Va. App. 113, 116 (2005) (quoting United States v. Hatchett, 245
F.3d 625, 644-45 (7th Cir. 2001)). On appeal, a reviewing court need not address alternate holdings
of a trial court if the trial court rendered an “independently dispositive ruling.” Commonwealth v.
Lambert, 292 Va. 748, 759 (2016). See also Boone v. C. Arthur Weaver Co., 235 Va. 157, 161
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(1988) (“Because we find the trial court’s ruling to be correct, it is unnecessary to examine
[appellant’s] second and third alternative theories [of trial court error].”).
Here, the circuit court’s termination of mother’s parental rights under Code § 16.1-283(E)(i)
makes it unnecessary for the Court to examine mother’s arguments regarding termination under
Code § 16.1-283(C)(2). Even if we were to agree with mother regarding the sufficiency of the
evidence to support termination pursuant to Code § 16.1-283(C)(2), her parental rights would
remain terminated because of the circuit court’s unchallenged decision to terminate mother’s
parental rights pursuant to Code § 16.1-283(E)(i). We therefore do not reach this assignment of
error.
Notwithstanding mother’s waiver of the opportunity to challenge the circuit court’s finding
under Code § 16.1-283(E)(i), this Court must confirm “that the alternative holding is indeed one that
(when properly applied to the facts of a given case) would legally constitute a freestanding basis in
support of the trial court’s decision.” Johnson, 45 Va. App. at 117. We hold that the record
supports the circuit court’s decision to terminate mother’s parental rights under Code
§ 16.1-283(E)(i).
Code § 16.1-283(E)(i) provides that parental rights may be terminated if the court finds,
based upon clear and convincing evidence, that it is (1) in the best interests of the child and that
(2) the residual parental rights of the parent regarding a sibling of the child have previously been
involuntarily terminated. See Code § 16.1-283(E)(i). This statutory scheme is “designed to protect
the rights of the parents and their child. These procedures must be strictly followed before the
courts are permitted to sever the natural and legal bond between parent and child.” Layne v. Layne,
61 Va. App. 32, 37 (2012) (quoting Radar v. Montgomery Cnty. Dep’t of Soc. Servs., 5 Va. App.
523, 526 (1988)).
In determining what is in the best interests of the child, the circuit
court must evaluate and consider many factors: the age and physical
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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 (citing Barkey v. Commonwealth, 2 Va. App. 662, 668 (1986)).
Here, the circuit court properly found that the first requirement of the statute is satisfied
because there is ample support in the record that termination of mother’s residual parental rights
was in the best interest of the children. The circuit court found that mother had “a complicated
psychological diagnosis” that “adversely [a]ffected her parenting abilities and placed her
children at risk.” The Department presented evidence that although mother participated in some
of the services, she did not fully engage in all the requirements and had been very resistant to
taking the recommended medications. Moreover, despite her participation in some of the
services, mother failed to recognize her role in the situation that led to the children’s placement
in foster care. The Department also presented evidence that the children were thriving in their
foster care placement, that K.H. had received specialized education services, and that both
children had bonded with their foster family. Finally, at the time of the circuit court hearing, the
children had been in foster care for over sixteen months. “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.” Tackett v. Arlington Cnty. Dep’t of Hum.
Servs., 62 Va. App. 296, 322 (2013) (alteration in original) (quoting Kaywood v. Halifax Cnty.
Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)). Accordingly, we hold that the circuit court
properly found by clear and convincing evidence that the termination of mother’s parental rights
was in the best interests of the children.
The record also supports the circuit court’s finding that the second requirement of Code
§ 16.1-283(E)(i) is satisfied. As mother concedes, her parental rights to the children’s older
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siblings were involuntarily terminated. Because there is clear and convincing evidence to
support both prongs of the statute, we are satisfied that Code § 16.1-283(E)(i) was applicable and
provided an independent basis to support the circuit court’s decision.
The record supports the circuit court’s finding that the termination of mother’s parental
rights under Code § 16.1-283(E)(i) was in the children’s best interest because mother failed to
recognize her responsibility for the conditions that led to K.H. and T.H.’s placement. We are
satisfied that Code § 16.1-283(E)(i), properly applied to the facts, legally constitutes a
freestanding, separate, and independent basis in support of the circuit court’s decision to
terminate mother’s parental rights. Mother has not challenged this ground for termination on
appeal, forfeiting any subsequent right to do so and mooting her challenges to the circuit court’s
decision based on another provision of the statute. Therefore, we will not reverse the decision
below.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
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