Hayat Benfaraj v. Stafford Department of Social Services ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and Russell
UNPUBLISHED
HAYAT BENFARAJ
MEMORANDUM OPINION*
v. Record No. 0597-18-4 PER CURIAM
NOVEMBER 27, 2018
STAFFORD DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Victoria A. B. Willis, Judge
(Jason M. Pelt; Goodall, Pelt & Carper, on brief), for appellant.
Appellant submitting on brief.
(Catherine Miller Saller; Elizabeth Carpenter-Hughes, Guardian ad
litem for the minor child; Williams Stone Carpenter Buczek, PC, on
brief), for appellee. Appellee and Guardian ad litem submitting on
brief.
Hayat Benfaraj (“Benfaraj”) appeals the orders terminating her parental rights and
approving the goal of adoption for her child, L.Y. Benfaraj argues that the circuit court erred by
(1) finding that the evidence was sufficient to terminate her parental rights and (2) not granting her
continuance request “when a subpoenaed necessary witness notified the court that she was not
available due to illness.” Upon reviewing the record and briefs of the parties, we conclude that the
circuit court did not err. Accordingly, we affirm the decision of the circuit court.
BACKGROUND
“On appeal, ‘we view the evidence and all reasonable inferences in the light most
favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.
Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).
Benfaraj and Adam Yafi (“Yafi”) are the biological parents to L.Y., who is the subject of
this appeal. Yafi also has a son, Y.Y., and Benfaraj is Y.Y.’s stepmother. In late January 2017,
Y.Y. was four years old, and L.Y. was almost eighteen months old.
On January 24, 2017, Yafi was hospitalized for attempting suicide. He was diabetic and had
taken too much medication. Yafi was released from the hospital on March 10, 2017.
On January 26, 2017, Yafi’s sister, Majida Yafi (“Majida”), came from Morocco to see Yafi
in the hospital. After visiting Yafi, Majida went to Benfaraj’s residence and asked to see Y.Y.
Benfaraj told Majida that Y.Y. was asleep, but she brought him out to Majida, who immediately
noticed that Y.Y. could not see and asked Benfaraj what was wrong with Y.Y. and his eyes.
Benfaraj told Majida that Y.Y. had an eye infection, which he might have caught from L.Y. Y.Y.
went back to his bedroom, and Majida could hear him crying. She sat with him, and then Y.Y.
started to seize. Majida called 911.
In the very early hours of January 27, 2017, an ambulance transported Y.Y. to Mary
Washington Hospital for the suspected seizure. Y.Y. was unresponsive, intubated, and had
suspicious bruises on him. Y.Y. was flown to Children’s Hospital of Richmond at Virginia
Commonwealth University (VCU) for treatment.
Dr. Robin Foster, a pediatric emergency medicine physician and director of the child
protective team at VCU, examined Y.Y. Dr. Foster observed bruises on Y.Y.’s forehead, the right
side of his eye, his right cheek, his left scalp, his lower jaw, his left elbow, his trunk, the inside of
his right forearm, and his lower extremities. Y.Y. also had abrasions and red marks around his neck
and shoulders. Y.Y.’s right eye was drooping, and an eye exam revealed that blood was pooling in
the back of his eye. His right pupil was “blown and very enlarged and fixed and would not respond
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to light.” His left pupil was small and did not respond to light. Y.Y. had several CT scans and
MRIs, which revealed blood collections around both sides of his brain. Y.Y. also had “numerous,
too many to count multi layer [sic] retinal hemorrhages,” and he suffered from optic nerve swelling.
When Y.Y. arrived at the hospital, he was blind in both eyes, and Dr. Foster testified that his
blindness would be permanent. Dr. Foster testified that Y.Y.’s blindness probably was not
immediate after the acute abusive head trauma injury, rather it was “a process that is secondary to
inflammation, pressure, and damage.”
Dr. Foster opined that Y.Y.’s injuries “occurred on more than one occasion.” Dr. Foster
noted that there was a loss of brain tissue and damage to brain tissue that supported the theory of at
least two different episodes of trauma. Dr. Foster explained that the loss of brain tissue was
permanent and would affect his developmental milestones and cognitive function.
Dr. Foster testified that Y.Y.’s injuries could not have been self-inflicted. She opined that
Y.Y.’s injuries suggested that he suffered abusive head trauma. Dr. Foster explained that “[h]is
constellation of symptoms are exactly consistent with abusive head trauma in that he has acute
altered mental status, bilateral subdural collections and massive bilateral retinal hemorrhages.” She
further stated that Y.Y. “had severe acceleration-deceleration injury on his brain that caused the
pattern of internal injuries he had.” She explained that the marks around Y.Y.’s neck were
“consistent with somebody holding him around the neck,” which could have been where he was
held for the “acceleration-deceleration injury” he sustained. The external bruises on his right side,
however, were “consistent with impact.”
In addition to his eye and brain injuries, Y.Y.’s T1 vertebra was “crushed into multiple
pieces” and was a result of directed blunt force, a non-accidental injury. Dr. Foster opined that
since there was no evidence of healing, the injury was less than a week old. The shattered vertebra
was evidence of “the force with which the child was impacted.”
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Based on his injuries, Dr. Foster stated that Y.Y. was “repetitively injured at least two or
more times.” One set of Y.Y.’s injuries was more than two weeks old, and one set of his injuries
was less than two weeks old. Dr. Foster explained that Y.Y.’s injuries would have been noticeable
to a layperson and that “there would have been a significant period of time in which he was
significantly symptomatic.” Dr. Foster stated that Y.Y.’s injuries would not have been so severe if
he had received medical attention immediately following the first incident.
Y.Y. remained hospitalized at VCU from January 27 to February 20, 2017. In addition to
his injuries, he had “significant issues with feeding.” He worked with speech therapy, occupational
therapy, physical therapy, child neurology, and neurosurgery. Psychologists and psychiatrists also
treated Y.Y. because he suffered from post-traumatic stress disorder and anxiety.
On January 27, 2017, the police interviewed Benfaraj, who stated that she was “the
caretaker.”1 She took care of the house and children while Yafi worked. Benfaraj explained that
Y.Y. began living with them in June 2016. Benfaraj told the police that Y.Y. had been having a lot
of behavior issues prior to his hospitalization and that he would throw tantrums and bang his head
against a wall or on the floor. The police did not see any damage to the walls. Benfaraj reported
that over the previous weekend, Y.Y. had heard Benfaraj and Yafi talking about an upcoming court
case between Yafi and Y.Y.’s biological mother, and Y.Y. became upset and “had thrown himself
on the tub.” The police asked Benfaraj if she had noticed whether Y.Y.’s behavior changed after
“the incident of banging his head and body around the past weekend and she said that she really
didn’t pay attention and couldn’t say.” When the police asked Benfaraj about Y.Y.’s eyesight, she
said that on Monday, January 23, 2017, she noticed that Y.Y. could not open his eye. Benfaraj told
1
The police were unable to interview Yafi on January 27, 2017, because he was
intubated and unconscious in the intensive care unit of the hospital after his suicide attempt.
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the police that she had not sought medical attention earlier because Y.Y. “did not have Medicaid or
insurance.”
In addition, Benfaraj showed the police a video that was on her cell phone. In the video,
Y.Y. was “kind of slumped down” on a brown couch. Y.Y. had bruises on his head and forehead,
and one of his eyes was “almost closed” with a small pupil. A male voice asked Y.Y., “what
happened to him, why he would do this and asking him over and over again, . . . why would you do
this to yourself.” The police officer described the man’s voice as “agitated and somewhat
accusatory.” The police determined that the time stamp on the phone showed that the video was
taken January 23, 2017.
After Benfaraj’s first interview with the police, she requested a second interview. At that
meeting, she said that on Tuesday, January 24, 2017, Y.Y. was at the kitchen table, and Yafi was
upset and repeatedly told Y.Y. to open his eye. Then, Yafi took Y.Y. to the bathroom, and Benfaraj
heard “yelling and commotion coming from the bathroom.” Benfaraj checked on them, and Yafi
told her that he was “dealing” with his son. Benfaraj left to nurse L.Y. and continued to hear Yafi
yelling at Y.Y. to open his eye. Then, Yafi left the bathroom. Benfaraj said that she had never seen
Yafi so agitated before that incident. Yafi told Benfaraj that he had “struck” Y.Y. and subsequently
left the house. When Y.Y. came out of the bathroom, Benfaraj saw that he had a “lump in the
middle of his forehead,” which was not there when Y.Y. first went into the bathroom. Benfaraj did
not call 911 or take Y.Y. to the doctor.
On January 27, 2017, Kathryn Burner, a CPS worker, went to Mary Washington Hospital to
visit Y.Y. and view his injuries before he was flown to VCU. Then, Burner went to Benfaraj’s
house, and met Benfaraj, L.Y., and Majida. Benfaraj showed Burner where Y.Y. allegedly banged
his head on the floor or wall. The Stafford Department of Social Services (“DSS”) subsequently
entered into a safety plan with Majida so that Benfaraj was not alone with L.Y.
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Burner left the home and spoke with a nurse and doctors, including Dr. Foster, at VCU.
Based on the information received from those conversations, DSS immediately removed L.Y. from
Benfaraj’s care on January 27, 2017.2 DSS was concerned about L.Y.’s safety in Benfaraj’s care
considering the severity of Y.Y.’s injuries, the lack of medical attention for Y.Y., Benfaraj’s report
that the injuries were self-inflicted, and the doctors’ reports that the injuries were not self-inflicted.
On January 31, 2017, DSS held a family partnership meeting and discussed whether there
were any viable relative placements for L.Y. Majida reported that she was returning to Morocco on
February 9, 2017, and not interested in custody, so she was not a viable relative placement. Other
relatives informed DSS that they “did not want to get into the middle of it” and did not want custody
of L.Y. A family friend indicated that he was interested in custody; therefore, DSS instructed him
on how to file for custody. However, the J&DR court later dismissed his petition for custody
because he failed to appear for the hearing. Throughout the case, neither Benfaraj nor Yafi
identified any other possible placements.
On February 2, 2017, DSS arranged for Benfaraj to visit with L.Y. The social worker did
not notice anything inappropriate during that visit.
On February 7, 2017, the police arrested Benfaraj on two felony charges of child abuse or
neglect and one felony charge of cruelty and injury to a child. On July 17, 2017, Benfaraj entered
into a plea agreement, in which she pled guilty to one count of violating Code § 18.2-371.1(A),
felony child abuse or neglect.3 On September 22, 2017, the circuit court entered an order sentencing
Benfaraj to six years in prison, with four years and six months suspended, on the charge of felony
child abuse or neglect. Benfaraj’s expected release date was May 9, 2018.
2
DSS also learned that mother was possibly returning to Morocco with L.Y.
3
The Commonwealth agreed to nolle prosequi the other charges against mother. On
February 5, 2018, the circuit court entered a conviction order accepting Yafi’s Alford plea to the
charge of aggravated malicious wounding and guilty plea to the charge of child neglect.
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DSS met with Benfaraj several times while she was incarcerated, provided her with updates
and photographs of L.Y., and asked for contact information for possible relative placements.
Benfaraj never asked about Y.Y. during her visits with DSS.
On February 28, 2017, the J&DR court entered an adjudicatory order finding that L.Y. was
abused or neglected. On March 28, 2017, the J&DR court entered a dispositional order. On
December 19, 2017, the J&DR court terminated Benfaraj and Yafi’s parental rights to L.Y. and
approved the goal of adoption. Benfaraj and Yafi appealed to the circuit court.
The parties appeared before the circuit court on March 13, 2018. DSS presented evidence
that when L.Y. entered foster care, she was in good health, aside from having a blocked tear duct in
her eye, which was later resolved. Additional evidence proved that L.Y. had been in the same foster
home since January 27, 2017, and that she was “doing very well.” L.Y. had bonded to her foster
family and was attending daycare, where she could socialize with other children. The social worker
testified that since entering foster care, L.Y. “has gone from walking to running . . . . She is
speaking English. She can identify colors, body parts. She can name shapes. She can identify a
friend in the classroom . . . . She is potty trained completely . . . . She sleeps through the night as
well.”
At the conclusion of DSS’s evidence, Benfaraj made a motion to strike, which the circuit
court denied. At the conclusion of all of the evidence, the circuit court terminated Benfaraj’s
parental rights to L.Y. pursuant to Code § 16.1-283(E)(iii) and (iv), and it approved the goal of
adoption.4 This appeal followed.
4
The circuit court also terminated Yafi’s parental rights to L.Y., and he appealed the
ruling to this Court. See Yafi v. Stafford Dep’t of Soc. Servs., Record No. 0529-18-4, this day
decided.
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ANALYSIS
In our review of a trial court’s termination of parental rights, the “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 Cty. Dep’t of Family
Servs., 68 Va. App. 547, 558, 811 S.E.2d 835, 840-41 (2018) (quoting Logan v. Fairfax Cty.
Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (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 Cty. Dep’t of Soc.
Servs. v. Ridgeway, 59 Va. App. 185, 190, 717 S.E.2d 811, 814 (2011) (quoting Martin v.
Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)).
Termination of parental rights
Benfaraj argues that the circuit court erred in finding that the evidence was sufficient to
terminate her parental rights to L.Y. Benfaraj asserts that there was no evidence that she posed a
danger to L.Y. or that L.Y. was hurt in her care.
The circuit court terminated Benfaraj’s parental rights pursuant to Code § 16.1-283(E)(iv),
which states that a court can terminate a parent’s parental rights when it is in the best interests of the
child and when the evidence proves that “the parent has subjected any child to aggravated
circumstances.” Code § 16.1-283(E) defines “aggravated circumstances” as
torture, chronic or severe abuse, or chronic or severe sexual abuse,
if the victim of such conduct was a child of the parent or a child
with whom the parent resided at the time such conduct occurred,
including the failure to protect such a child from such conduct,
which conduct or failure to protect: (i) evinces a wanton or
depraved indifference to human life, or (ii) has resulted in the
death of such a child or in serious bodily injury to such a child.
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Code § 16.1-283(E) also defines “serious bodily injury” as “bodily injury that involves substantial
risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or
impairment of the function of a bodily member, organ or mental faculty.”
Here, the evidence proved that Benfaraj subjected Y.Y. to aggravated circumstances.
Benfaraj admitted that she was the children’s caretaker, and it was while Y.Y. was residing with
Benfaraj and Yafi that he sustained his injuries. Dr. Foster testified that Y.Y. suffered abusive head
trauma and non-accidental injury. She further opined that Y.Y.’s injuries “occurred on more than
one occasion.” As a result of his injuries, Y.Y. is permanently blind and has a permanent loss of
brain tissue, which will affect his developmental milestones and cognitive function.
Furthermore, DSS’s evidence proved that Benfaraj was aware of Y.Y.’s injuries several
days before he obtained medical attention. Benfaraj produced a cell phone video, which showed
that on January 23, 2017, Y.Y. had bruises on his head and forehead, and he could not open one of
his eyes. Then, on January 24, 2017, Yafi reported to Benfaraj that he “struck” Y.Y., and Benfaraj
saw a “lump in the middle of [Y.Y.’s] forehead” that was not there earlier. Benfaraj stated that she
had never seen Yafi so agitated as he was at that time. At no time did Benfaraj seek medical
attention for Y.Y. The circuit court found that Benfaraj “ignored entirely the emergent medical
needs of a little boy in her home and under her care.” It further concluded that “[i]t is clear that the
condition that led to [Y.Y.’s] injuries cannot possibly be addressed such as to permit a safe return to
an individual who could allow a small child to reside in their home and exhibit such horrendous
injuries.”
Pursuant to Code § 16.1-283(E)(iv), a court may terminate the parental rights of a parent
who “has subjected any child to aggravated circumstances” as defined in Code § 16.1-283(E), if it is
in the best interest of the child. (Emphasis added). As described above, the record shows that
Benfaraj subjected Y.Y. to aggravated circumstances when she failed to address the abuse he
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suffered at the hands of his father and demonstrated “a wanton or depraved indifference to [his]
life.” Further, the circuit court found that a termination of Benfaraj’s parental rights was in L.Y.’s
best interest when it concluded that “the condition that led to [Y.Y.’s] injuries cannot possibly be
addressed such as to permit a safe return to an individual who could allow a small child to reside in
their home and exhibit such horrendous injuries.” Accordingly, the court did not err when it
terminated Benfaraj’s parental rights to L.Y. pursuant to Code § 16.1-283(E)(iv).
“When a trial court’s judgment is made on alternative grounds, we need only consider
whether any one of the alternatives is sufficient to sustain the judgment of the trial court, and if
so, we need not address the other grounds.” Kilby v. Culpeper Cty. Dep’t of Soc. Servs., 55
Va. App. 106, 108 n.1, 684 S.E.2d 219, 220 n.1 (2009); see also Fields v. Dinwiddie Cty. Dep’t
of Soc. Servs., 46 Va. App. 1, 8, 614 S.E.2d 656, 659 (2005) (the Court affirmed termination of
parental rights under one subsection of Code § 16.1-283 and did not need to address termination
of parental rights pursuant to another subsection). Therefore, we will not consider whether the
circuit court erred in terminating Benfaraj’s parental rights pursuant to Code § 16.1-283(E)(iii).
Motion for continuance
Benfaraj argues that the circuit court erred by not granting her motion for a continuance
when a subpoenaed witness notified the circuit court that she was not available to appear at the
hearing. On February 9, 2018, Benfaraj requested that the court issue a witness subpoena for
Dr. Catherine Nana Ama Abban to appear at the March 13, 2018 hearing. On February 27, 2018,
Benfaraj filed a motion for a continuance because Dr. Abban was on a medical leave of absence and
could not appear at the hearing. Benfaraj explained that Dr. Abban was expected to testify that in
the fall of 2015, she treated L.Y. for bacteria in her right eye and prescribed medication for L.Y.’s
eye. When DSS removed L.Y. from Benfaraj’s care in January 2017, Benfaraj gave the social
worker an unmarked eye cream for L.Y. Benfaraj asserts that Dr. Abban’s testimony was necessary
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if DSS was going “to use the fact that [mother] did not have a mark[ed] cream for [L.Y.’s] eye as
proof that [mother] is a bad mother and should not have any further contact with the child.”
Benfaraj requested a continuance until Dr. Abban was available to testify. Benfaraj also argued that
DSS should have been precluded from presenting any evidence about possessing unmarked eye
cream for L.Y.
At the trial on March 13, 2018, Benfaraj raised the issue of her continuance request, but also
acknowledged that the circuit court previously had denied her motion.5 In addition, at the beginning
of her presentation of evidence, Benfaraj called Dr. Abban as a witness, but again admitted that
Dr. Abban was not able to be present and the court had denied her continuance request.
Assuming without deciding that the circuit court erred in denying the motion to continue,
the error was harmless. An appellate court “will not reverse a trial court for evidentiary errors that
were harmless to the ultimate result.” Carter v. Commonwealth, 293 Va. 537, 544, 800 S.E.2d 498,
502 (2017) (quoting Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015)). “In
Virginia, non-constitutional error is harmless ‘[w]hen it plainly appears from the record and the
evidence given at the trial that the parties have had a fair trial on the merits and substantial justice
has been reached.’” Andrews v. Creacey, 56 Va. App. 606, 625, 696 S.E.2d 218, 227 (2010)
(quoting Code § 8.01-678). “If, when all is said and done, [it is clear] that the error did not
influence the [fact finder], or had but slight effect, . . . the judgment should stand . . . .” Schwartz v.
Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66 (2005) (quoting Clay v. Commonwealth, 262
Va. 253, 260, 546 S.E.2d 728, 731-32 (2001)). An error may be found harmless when
“overwhelming expert and other evidence support[s] the court’s ultimate holding.” Jenkins v.
Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1185-86, 409 S.E.2d 16, 21 (1991).
5
The record does not include an order or transcript of a pre-trial hearing denying
mother’s motion to continue.
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Here, the evidence clearly supports the termination of Benfaraj’s parental rights pursuant to
Code § 16.1-283(E), as noted above. In issuing its ruling, the circuit court did not mention whether
Benfaraj gave the social worker an unmarked eye cream for L.Y. Instead, the circuit court’s focus
was on the significant injuries to Y.Y., who was a child in Benfaraj’s household, and for whom she
did not seek treatment. Any error in denying the motion to continue was harmless and did not affect
the circuit court’s ruling.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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