Selena Garibaldi v. Fauquier County Department of Social Services ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Senior Judge Clements
UNPUBLISHED
Argued by videoconference
SELENA GARIBALDI
v. Record No. 1113-21-4
FAUQUIER COUNTY DEPARTMENT OF
SOCIAL SERVICES
SELENA GARIBALDI
MEMORANDUM OPINION* BY
v. Record No. 1374-21-4 JUDGE JEAN HARRISON CLEMENTS
MAY 24, 2022
FAUQUIER COUNTY DEPARTMENT OF
SOCIAL SERVICES
SELENA GARIBALDI
v. Record No. 1375-21-4
FAUQUIER COUNTY DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James P. Fisher, Judge
Peter Thomas Hansen (Pierce R. S. Hansen; Peter Thomas Hansen,
P.C., on briefs), for appellant.
Kara Larson; Alexander E. Morgan, Guardian ad litem for the minor
children (Robert F. Beard; Kara L. Larson, PLLC; Hartsoe &
Morgan, P.L.L.C.; Robert F. Beard, PLC, on brief), for appellee.
Selena Garibaldi (mother) appeals the circuit court orders terminating her parental rights to
her three children and approving the foster care goals of adoption. Mother argues that the circuit
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
court erred in terminating her parental rights and finding that without good cause, she was
“unwilling or unable within a reasonable period of time to remedy the conditions that led to [the
children’s] foster care placement.” She further asserts that the circuit court erred in finding that it
was in the children’s “best interests to be placed for adoption, and to terminate [her] parental
rights.” Lastly, mother contends that the circuit court “erred in refusing to enter a transitional foster
plan that would have enabled [her] additional time to achieve the permanency plan goals that the
Department of Social Services had established with respect to the children.” We find no error and
affirm the decision of the circuit court.
BACKGROUND1
“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)). Here, the Department was the prevailing party.
Mother is the biological parent to A.F., E.J.C., and E.M.C., who were ages eight, three,
and two at the time of the circuit court hearing.2 Before moving to Virginia, mother and A.F.
had lived in Texas. The Fauquier County Department of Social Services (the Department) first
became involved with the family in 2014, after a representative from Texas requested that the
1
The record in these cases was sealed. Nevertheless, the appeals necessitate unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
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).
2
The children have different biological fathers, whose parental rights also were
terminated.
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Department follow up with the family to ensure that mother had obtained medical care for A.F.,
who had been diagnosed with congenital hypothyroidism.3
In 2017, the Department again became involved with the family after mother was
incarcerated. Robert Cooper, mother’s paramour, was watching A.F. and E.J.C., and there were
concerns about his ability to care for the two children.4 Once mother was released from
incarceration, the Department arranged for an intensive therapeutic parenting coach to assist the
family, but mother and Cooper did not follow through with services. Shortly thereafter, the
Department referred mother to a domestic violence program because she reported that Cooper
was physically violent with her. Mother, however, did not follow up with the program. A
couple of months later, the Department received a report that mother and Cooper were using
illegal drugs. Mother tested positive for marijuana, and Cooper tested positive for cocaine,
marijuana, and benzodiazepines.
Thereafter, the family was evicted from their home and moved to several different hotels
and motels; mother did not always notify the Department of their location. The Department lost
contact with the family in the spring of 2018. On November 28, 2018, the family sought
assistance from the Department, as they were again facing eviction. Mother reported that she
was pregnant and intended to move to Texas after their court hearing on the eviction.
On December 13, 2018, the Department learned that mother and Cooper had been
arrested.5 Mother had arranged for the children to stay with a friend, but the friend informed the
Department that she could not care for them. In addition, the Department discovered that A.F.
3
A.F. had been in foster care in Texas due to medical neglect but later was returned to
mother’s custody. Mother and A.F. subsequently moved to Virginia.
4
Cooper was determined not to be the biological father of E.J.C., but he is the biological
father of E.M.C.
5
Mother was charged with assaulting a police officer.
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had not been attending school regularly, and mother had failed to attend scheduled school
meetings or return phone calls. Considering mother’s incarceration, the lack of available
caregivers, and the Department’s concern for the children’s well-being, the Department
petitioned to remove the children from mother’s care and place them in foster care.
The Fauquier County Juvenile and Domestic Relations District Court (the JDR court)
entered emergency and preliminary removal orders for A.F. and E.J.C. The JDR court
adjudicated that A.F. and E.J.C. were neglected, based on a stipulation between mother and the
Department. The JDR court subsequently entered dispositional orders, which mother did not
appeal.
Approximately a month and a half after A.F. and E.J.C. entered foster care, mother gave
birth to E.M.C. The Department immediately requested emergency custody of E.M.C. The JDR
court entered emergency and preliminary removal orders for E.M.C. The JDR court adjudicated
that E.M.C. was at risk of being abused or neglected. The JDR court subsequently entered a
dispositional order, which mother did not appeal.
When the children entered foster care, the Department required mother to meet certain
goals before reunification could be achieved. The Department required mother to complete a
substance abuse evaluation and follow through with all recommended treatment.6 In addition,
the Department required mother to participate in a psychological evaluation and follow through
with all recommendations. The Department expected mother to demonstrate that she had “the
mental health capacity to appropriately parent and care for the children.” The Department
required mother to participate in weekly counseling sessions with Jamie Austin, a professional
counselor and certified trauma cognitive behavioral therapist.
6
Mother completed the substance abuse evaluation, and no services were recommended.
Mother was randomly tested for drugs on three occasions and tested negative for “all substances”
each time. Mother claimed that she was “clean and sober” at the circuit court hearing.
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Mother also had to obtain and maintain safe and stable housing for a period of at least six
months. In addition, mother had to obtain and maintain stable employment so that she could
demonstrate the ability to provide financially for herself and the children. Furthermore, mother
had to maintain contact with the Department and consistently visit with the children.
Initially, mother complied with some of the Department’s requirements. For example,
she regularly visited with the children, maintained contact with the social worker, and
participated in weekly individual counseling sessions. The Department met with mother and
Cooper to provide them with information on housing options. Nevertheless, mother and Cooper
continued to “bounce[] around” from various motels, friends, and relatives. The Department
wanted mother to establish a “permanent living situation.”
In April 2019, mother was incarcerated for approximately six weeks for assaulting a
police officer, which was the criminal charge that led to A.F. and E.J.C.’s placement in foster
care. After mother was released from jail, she did not resume her individual counseling with
Austin, even though Austin had kept mother’s appointment open for her during and after her
incarceration. Mother, however, completed a neuropsychological evaluation with Dr. Edwin
Carter, a licensed clinical psychologist. Dr. Carter diagnosed mother with post-traumatic stress
disorder, anxiety disorder, low self-esteem, impulsive disorder, bipolar disorder-depressed-mild,
and cognitive communication deficit. Dr. Carter opined that mother had “significant learning
disabilities” and “lack[ed] cognitive skills and the emotional stability necessary to effectively
parent children.” He questioned whether mother could “take care of herself—much less any
children” because of her “cognitive problems.” Dr. Carter doubted that mother could
“independently parent her children,” even with help.
Despite Dr. Carter’s conclusions, the Department provided mother with supervised
visitation for all three children. E.J.C. and E.M.C. often did “very well” during the visits.
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Conversely, A.F. had some “behavioral issues,” such as throwing tantrums, screaming, and
crying if she did not get her way. Mother became “frustrated” and sometimes had difficulty
meeting the needs of all three children. The visitation supervisor tried to help mother establish
boundaries and follow through with the boundaries. Mother never progressed to unsupervised
visits.
In October 2019, the Department petitioned for the termination of mother’s parental
rights to the children because she had not demonstrated that she could provide a “safe, stable,
and nurturing environment in which they [could] thrive.” At the time, mother still had not
resumed her counseling and had not obtained stable housing. In addition, mother had failed to
maintain stable employment. The JDR court terminated mother’s parental rights and approved
the foster care goals of adoption. Mother appealed the JDR court’s rulings.
On May 3 and 4, 2021, the parties appeared before the circuit court. The Department
presented evidence that A.F. required daily medication for her hypothyroidism, which her
endocrinologist monitored. Due to her condition, A.F.’s diet had to be monitored closely, and
she had to be encouraged to be active. In addition, A.F. had begun participating in weekly
outpatient therapy. A.F.’s therapist diagnosed her with post-traumatic stress disorder and
determined that she had a “lot of developmental delays.” Initially, A.F. was “highly unstable”
and displayed “a lot of erratic behavior.” The therapist explained that A.F. needed a caregiver
who could not only meet A.F.’s serious medical needs, but also her “social-emotional needs.”
The therapist testified that A.F. was “doing very well in school” and “flourishing in her foster
home.” The therapist opined that removing A.F. from her foster home “would be sending her
back to pre-therapy level of functioning.”
The Department also presented evidence that mother had been uncooperative with
counseling. Mother had worked with Austin from November 2017 until February 2018, and
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from January 2019 until April 2019. Mother was discharged from counseling, however, due to
non-compliance despite her need for ongoing therapy. Austin explained that mother had a “very,
very significant trauma history, a very complex trauma history.” They had been working on
mother’s understanding of how her own trauma impacted her and the children. Austin explained
that mother was unable to “recognize her own emotional needs, safety, and security” and was
“not in a position” to effectively parent a child with trauma. Austin doubted that mother was “in
a place where she was ready and able to do the hard work that need[ed] to be done in order for
her to be safe and to learn how to keep small children safe.”
The Department believed that mother and Cooper had had “many ups and downs in their
relationship during this foster care case,” and they admitted that their relationship was “not the
healthiest.” At the circuit court hearing, mother testified that she was no longer in a relationship
with Cooper and had no plans to resume living with him. In the fall of 2020, mother claimed
that she and Cooper got into a physical altercation, so she obtained a one-year protective order
against him.
Mother and Cooper had been living together in Warrenton. At the time of the circuit
court hearing, the Department was unaware of mother’s address or what her living situation was.
Mother testified that in September 2020, she had moved to Danville and lived in a hotel for two
weeks. She then moved to another hotel, which was where she was living at the time of the
circuit court hearing. Mother also claimed to be applying for housing with “different realtor
companies.”7 Mother admitted that her current living situation, which was a one bedroom, was
not suitable for the children, but she testified that she could get a two bedroom for all of them.
The Department also was unaware of mother’s employment situation or whether she was
in counseling. Mother testified that she was diagnosed with COVID in August 2020 and that she
7
Mother had been denied public housing because of her “background check.”
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lost her job and stopped counseling during that time. At the time of the circuit court hearing,
however, mother was working for a temporary agency and part-time at Taco Bell. Mother
further claimed that she was in weekly counseling with a new counselor. Mother explained that
she stopped seeing Austin because she felt that she was not “being heard.” Mother informed the
circuit court that she was scheduled to start parenting classes the following week. Since the
children entered foster care, mother had obtained her driver’s license and a vehicle.
After hearing the evidence and arguments, the circuit court found that mother’s living
situation was “profoundly unstable,” and it expressed concerns about her mental health. The
circuit court further found that mother was not “equipped to provide the children day-to-day
nurturing and the care that they need and deserve.” Thus, the circuit court terminated mother’s
parental rights to the children under Code § 16.1-283(C)(2) and approved the foster care goals of
adoption. These appeals followed.
ANALYSIS
Termination of parental rights
Mother challenges the circuit court’s ruling terminating her parental rights to the
children. “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)
(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 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)).
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Mother argues that the evidence was insufficient to prove that she was unwilling or unable,
within a reasonable period of time, to remedy the conditions that led to the children’s placement in
foster care. She further asserts that it was not in the children’s best interests to terminate her
parental rights or “be placed for adoption.” Mother contends that termination was inappropriate
because the Department presented no evidence of ongoing drug use, “dangerous” living conditions,
physical or sexual abuse, or ongoing and “dangerous” mental illness.
“‘[T]he interest of parents in the care, custody, and control of their children . . . is perhaps
the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.”
Geouge v. Traylor, 68 Va. App. 343, 368 (2017) (quoting Troxel v. Granville, 530 U.S. 57, 65
(2000) (plurality opinion)). This Court has recognized that the termination of parental rights is a
“grave, drastic and irreversible action.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 44
(2014) (quoting Helen W. v. Fairfax County Dept. of Human Dev., 12 Va. App. 877, 883 (1991)).
“Code § 16.1-283 embodies ‘[t]he statutory scheme for the . . . termination of residual
parental rights in this Commonwealth.’” Yafi, 69 Va. App. at 551 (quoting Rader v. Montgomery
Cnty. Dep’t of Soc. Servs., 5 Va. App. 523, 526 (1988)). “This ‘scheme provides detailed
procedures designed to protect the rights of the parents and their child,’ balancing their interests
while seeking to preserve the family.” Id. (quoting Rader, 5 Va. App. at 526). The circuit court
terminated mother’s parental rights under Code § 16.1-283(C)(2), which authorizes a court to
terminate parental rights if:
The 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.
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“[S]ubsection C termination decisions hinge not so much on the magnitude of the problem that
created the original danger to the child, but on the demonstrated failure of the parent to make
reasonable changes.” Yafi, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 271 (2005)).
The circuit court acknowledged that mother undoubtedly loved the children and had
made “some progress” toward meeting the Department’s requirements for reunification. Yet
mother was unable to remedy the conditions that led to the children’s placement and continuation
in foster care. One of the Department’s enduring concerns throughout its involvement with the
family was mother’s housing situation. The circuit court found that mother’s living situation was
“inconsistent,” “unstable,” and had “not improved to any meaningful degree from the time that
these children [had] been put in foster care.” At the time of the circuit court hearing, mother was
residing in a hotel. The circuit court recognized that “there’s certainly no dishonor in living in a
hotel,” but mother was not prepared to house and care for the children. Mother admitted that her
current room would not accommodate the children, and the circuit court noted that it “didn’t
even hear somebody testify that they had a hot plate.” The circuit court found that mother’s
living environment was not “suitable” for the children.
In addition to mother’s unstable housing situation, her failure to prioritize her mental
health was concerning to the circuit court. After mother submitted to a neuropsychological
evaluation, Dr. Carter questioned mother’s ability “to effectively parent.” The evidence
established that mother had been diagnosed with post-traumatic stress disorder. The circuit court
further found “persuasive” Austin’s testimony that mother had a “very complex trauma history”
that required ongoing therapy. Mother admittedly had not attended therapy consistently while
the children were in foster care. The circuit court found “heartbreaking” mother’s profound need
for therapy but unwillingness to “follow through with her counseling.” The circuit court
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concluded that despite the services the Department offered, mother had been “unable to remedy”
the conditions that led to the children’s placement in foster care.
By the time of the circuit court hearing, the children had been in foster care for more than
two years. E.M.C. was two years old and had spent all but a couple of days of his life in foster
care. The circuit court found that E.M.C. and E.J.C. were doing well in foster care. The
evidence established that A.F. was “flourishing” in her foster care placement; she was receiving
proper medical and mental health treatment for her congenital hypothyroidism and
post-traumatic stress disorder. The circuit court found that mother was not “equipped” to meet
the children’s needs.
The circuit court concluded that it could not “wait indefinitely to determine if [mother]
. . . can become responsible enough to properly parent these children.” “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) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc.
Servs., 10 Va. App. 535, 540 (1990)). Accordingly, based on the totality of the circumstances, the
circuit court did not err in terminating mother’s parental rights to her children under Code
§ 16.1-283(C)(2) and finding that termination was in their best interests.
Waiver
In her last assignment of error, mother argues that the circuit court “erred in refusing to enter
a transitional foster plan that would have enabled [her] additional time to achieve the permanency
plan goals that the Department of Social Services had established with respect to the children.”
Mother does not present any argument or authorities in support of this assignment of error in her
brief; therefore, “it is waived and will not be considered on appeal.” Wroblewski v. Russell, 63
Va. App. 468, 489 (2014); see Rule 5A:20(e). “‘[W]hen a party’s “failure to strictly adhere to the
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requirements of Rule 5A:20(e) is significant,” “the Court of Appeals may . . . treat a question
presented as waived.”’” Id. (quoting Parks v. Parks, 52 Va. App. 663, 664 (2008)). See also
Muhammad v. Commonwealth, 269 Va. 451, 478 (2005) (“Failure to adequately brief an assignment
of error is considered a waiver.”).
In mother’s brief, she states that “[t]he final assignment of error in this case attacks the trial
court’s finding that [the Department] made reasonable and appropriate services available to the
parents . . . prior to the termination.” Mother’s final assignment of error, however, did not address
reasonable and appropriate services. “Rule 5A:20(c) requires us to hold that this issue is waived
because it is not part of appellant’s assignment of error.” Fox v. Fox, 61 Va. App. 185, 202
(2012). Thus, we do not consider mother’s last assignment of error.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling to terminate mother’s parental rights is
affirmed.
Affirmed.
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