Doneice Redd v. Loudoun County Department of Family Services ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED
DONEICE REDD
v. Record No. 1915-13-4
LOUDOUN COUNTY DEPARTMENT
OF FAMILY SERVICES MEMORANDUM OPINION*
PER CURIAM
DONEICE REDD APRIL 29, 2014
v. Record No. 1991-13-4
LOUDOUN COUNTY DEPARTMENT
OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge
(Lorrie A. Sinclair; Sinclair Taylor PLLC, on brief), for appellant in
Record No. 1915-13-4.
(Robert M. Vernail, on brief), for appellant in Record
No. 1991-13-4.
(Sandra A. Glenney, Assistant County Attorney; Eric J. Demetriades,
Guardian ad litem for B.R.; Anne Wren Norloff, Guardian ad litem
for Ch.R., A.R, and Ca.R.; Hendrix/Demetriades, PC, on brief), for
appellee.
Doneice Redd (mother) appeals the orders terminating her parental rights to her children,
B.R., Ch.R., A.R., and Ca.R.1 In Record No. 1915-13-4, mother argues that the trial court erred by
(1) admitting B.R.’s medical and dental records into evidence without the custodian of the records
or doctor being present to authenticate the documents; (2) finding that the Loudoun County
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Since the children are minors, we will refer to them by their initials.
Department of Family Services (the Department) provided sufficient rehabilitative services to
mother in an effort to return B.R. home; (3) finding that Donetta Redd was not an appropriate
relative placement for B.R.; and (4) finding that the evidence was sufficient to terminate mother’s
parental rights to B.R. pursuant to Code § 16.1-283(C)(2). In Record No. 1991-13-4, mother argues
that the trial court erred by finding that (A) the evidence was sufficient to prove abuse or neglect of
Ch.R., A.R., and Ca.R.; (B) the evidence was sufficient to terminate mother’s parental rights to
Ch.R., A.R., and Ca.R. pursuant to Code § 16.1-283(B); (C) the Department provided sufficient
rehabilitative services to mother in an effort to return Ch.R., A.R., and Ca.R.; (D) Donetta Redd was
not an appropriate relative placement for Ch.R., A.R., and Ca.R., and (E) the evidence was
sufficient to terminate mother’s parental rights to Ch.R., A.R., and Ca.R. pursuant to Code
§ 16.1-283(C)(2). Upon reviewing the record and briefs of the parties, we conclude that these
appeals are without merit. Accordingly, we summarily affirm the decision of the trial court. See
Rule 5A:27.
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, 462 (1991).
In November 2010, the Department received a report that B.R., mother’s oldest child,
went to the mobile dental clinic at his school and had only three normal and intact teeth.
Subsequently, the Department filed a petition alleging that B.R. had been abused or neglected
and removed him from the home on March 16, 2011. The petition was later amended by
agreement, and the Loudoun County Juvenile and Domestic Relations District Court (the JDR
court) entered an order finding that B.R. was a child in need of services.
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The Department assigned a case management social worker to work with the family and
provide home-based services. In October 2011, the Department filed petitions alleging abuse
and neglect of mother’s three youngest children, Ch.R., A.R., and Ca.R. The JDR court did not
find that the three youngest children were abused or neglected, but did enter protective orders for
the children. The three youngest children stayed with mother. The Department continued to
provide home-based services and have a case management social worker work with the family.
The Department was concerned about mother’s housing situation and her ability to care
for the children. Mother lived with the children and her mother (the children’s maternal
grandmother) in a hotel. The social workers described the hotel room as dirty, “smelly,” and
“cluttered.” The room had no table for dining, so the children ate on the floor. The Department
was concerned about the children’s nutrition because mother fed them “lots of junk food.”
Despite services being offered to mother, the Department determined that mother was not
able to care for the three youngest children. On November 19, 2012, the Department removed
the three youngest children based on allegations of abuse and neglect. The JDR court found that
the three youngest children were abused and/or neglected.
The Department filed petitions to terminate mother’s parental rights to all of her children
and filed foster care service plans with goals of adoption. On April 10, 2013, the JDR court
entered an order terminating mother’s parental rights to B.R. and approved the foster care plan
with the goal of adoption. On June 26, 2013, the JDR court entered orders terminating mother’s
parental rights to Ch.R., A.R., and Ca.R. and approved the foster care plans with the goals of
adoption.2
2
The JDR court also entered orders at the same time terminating the parental rights of the
fathers for the four children. Ca.R.’s father was unknown. B.R., Ch.R., and A.R. had the same
father, who appealed the JDR court’s decision to the trial court. The circuit court terminated the
father’s parental rights to B.R., Ch.R., and A.R. The father appealed the circuit court’s rulings.
On February 18, 2014, this Court entered an order granting the father’s motion to withdraw his
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When mother appealed the JDR court’s rulings, the parties agreed to have the appeals
heard at the same time. The trial court heard evidence and argument on August 21 and 22, 2013.
At trial, Donetta Redd, mother’s twin sister, asked that she be considered as a relative placement
for the children. However, she was living with someone who had been convicted of a barrier
crime.3 The trial court denied Donetta Redd’s request to have the children placed with her. At
the conclusion of the hearing, the trial court held that there was sufficient evidence to terminate
mother’s parental rights to B.R. pursuant to Code § 16.1-283(C)(2) and her parental rights to
Ch.R., A.R., and Ca.R. pursuant to Code § 16.1-283(B) and (C)(2). The trial court approved the
foster care plans with the goals of adoption. These appeals followed.
ANALYSIS
Mother argues that the trial court erred by terminating her parental rights to her four
children. 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. “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) (citations
omitted).
B.R.’s medical and dental records
Mother argues that the trial court erred in admitting B.R.’s medical and dental records
because the Department did not introduce them through the custodian of records or the doctor.
Code § 16.1-245.1 explains the procedure for the admission of medical and hospital records in
appeal in part and dismissing his appeal in part. See Tates v. Loudoun Cnty. Dep’t of Family
Servs., No. 1963-13-4 (Va. Ct. App. Feb. 18, 2014).
3
He was convicted of a crime that would prevent him from being a foster parent. See
Code §§ 63.2-1721 and -1719.
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abuse and neglect cases in the juvenile and domestic relations district court.4 The Department
followed the procedure for the proceedings in the JDR court. Mother contends Code
§ 16.1-245.1 does not apply to proceedings in the circuit court and the trial court erred by
admitting the records into evidence.
Assuming without deciding that the circuit court erred in admitting the medical records,
the error was harmless. The standard for non-constitutional error is established in Code
§ 8.01-678, which provides, in pertinent part:
4
Code § 16.1-245.1 states:
In any civil case heard in a juvenile and domestic relations district
court involving allegations of child abuse or neglect or family
abuse, any party may present evidence, by a report from the
treating or examining health care provider as defined in
§ 8.01-581.1 or the records of a hospital, medical facility or
laboratory at which the treatment, examination or laboratory
analysis was performed, or both, as to the extent, nature, and
treatment of any physical condition or injury suffered by a person
and the examination of the person or the result of the laboratory
analysis.
A medical report shall be admitted if the party intending to present
such evidence at trial or hearing gives the opposing party or parties
a copy of the evidence and written notice of intention to present it
at least ten days, or in the case of a preliminary removal hearing
under § 16.1-252 or § 16.1-253.1 at least twenty-four hours, prior
to the trial or hearing and if attached to such evidence is a sworn
statement of the treating or examining health care provider or
laboratory analyst who made the report that (i) the information
contained therein is true, accurate, and fully describes the nature
and extent of the physical condition or injury and (ii) the patient
named therein was the person treated or examined by such health
care provider; or, in the case of a laboratory analysis, that the
information contained therein is true and accurate.
A hospital or other medical facility record shall be admitted if
attached to it is a sworn statement of the custodian thereof that the
same is a true and accurate copy of the record of such hospital or
other medical facility. . . .
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When 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, no judgment shall be
arrested or reversed . . . [f]or any . . . defect, imperfection, or
omission in the record, or for any other error committed on the
trial.
“‘If, when all is said and done, [it is evident] that the error did not influence the [trial
court], or had but slight effect, . . . the judgment should stand . . . .’” Clay v. Commonwealth,
262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S.
750, 764-65 (1946)); see also Schwartz v. Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66
(2005).
The Department presented sufficient evidence to terminate mother’s parental rights to
B.R. without the admission of the medical records. In issuing its ruling, the trial court
commented on B.R.’s developmental delays and other psychological issues, not just his dental
problems. The trial court found that mother had limitations which affected her ability to
adequately care for B.R. and his siblings and she was unwilling to accept assistance. Regardless
of whether the medical records were admitted, there was sufficient evidence to support the trial
court’s decision to terminate mother’s parental rights to B.R.
Sufficient rehabilitative services
Mother argues that the trial court erred in finding that the Department provided sufficient
rehabilitative services to mother in an effort to have all four of the children returned to the home.
Code § 16.1-283(B) and (C) consider the “reasonable and appropriate” rehabilitative
services provided by the Department to a parent. “‘Reasonable and appropriate’ efforts can only
be judged with reference to the circumstances of a particular case. Thus, a court must determine
what constitutes reasonable and appropriate efforts given the facts before the court.” Ferguson v.
Stafford Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992).
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Initially, the Department became involved with the family because of concerns about
B.R.’s dental health. Since B.R. only had three normal and intact teeth at the age of eight years
old, the Department spoke with the mother about dental hygiene and the need for B.R. to see a
dentist. Mother did not take B.R. to a dentist. Once the Department removed him from the
home, B.R. had five dental appointments. The Department notified mother of the dental
appointments and arranged transportation for her to come to the appointments. She went to one
out of five appointments.
The Department also was concerned about mother’s housing situation. She had been
living in hotels with the maternal grandmother and the children for at least two years prior to the
Department becoming involved with the family. The Department provided mother with
information regarding housing, including referrals for the transitional housing program and
shelter and an application for the program. A social worker offered to help mother with the
application, but she refused. Mother testified that she was not interested in the transitional
housing program because she would not have transportation to her job if she lived there.
Another social worker researched numerous housing options for mother and drove her to several
appointments. However, mother continued to reside in hotels.
The Department also arranged for mother, B.R., the father, and maternal grandmother to
have psychological evaluations, performed by Dr. William Ling. Dr. Ling diagnosed B.R. with a
pervasive developmental disorder on the autism spectrum, acquired as a result of neglect.
Dr. Ling diagnosed mother with a mood disorder not otherwise specified and recommended that
she “be seen by a psychiatrist for consideration of pharmacotherapy to address her affective
disorder” and receive home-based services. Dr. Ling determined that mother’s parenting
capacity was “severely restricted.” Based on Dr. Ling’s recommendations, the Department
recommended that mother participate in a psychiatric assessment, but mother refused. The
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Department also recommended that Ch.R. have a neuropsychological evaluation, but mother
would not cooperate.
In addition, the Department provided home-based services and arranged for visitations
between mother and the children. The Department also referred mother to the Early Head Start
program and day care services, but mother told the Department that she did not need the services.
“The Department is not required ‘to force its services upon an unwilling or disinterested
parent.’” Logan, 13 Va. App. at 130, 409 S.E.2d at 463-64 (quoting Barkey v. Commonwealth,
2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986)).
The trial court found that the Department’s efforts were “significant and meaningful.”
The evidence supports the trial court’s finding that the Department provided sufficient
rehabilitative services to mother.
Termination pursuant to Code § 16.1-283(C)(2)
Mother argues that the trial court erred in terminating her parental rights to her four
children pursuant to Code § 16.1-283(C)(2), which states that a court may 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 twelve
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.
Mother argues that she improved her situation while the children were in foster care. She
asserts that she looked for housing but could not find anything that was affordable and suitable
for her family. She notes that she regularly visited with the children and points out that one of
the home-based counselors testified that mother’s interaction with B.R. improved over time.
[S]ubsection C termination decisions hinge not so much on the
magnitude of the problem that created the original danger to the
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child, but on the demonstrated failure of the parent to make
reasonable changes. Considerably more “retrospective in nature,”
subsection C requires the court to determine whether the parent has
been unwilling or unable to remedy the problems during the period
in which he has been offered rehabilitation services.
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d 765, 772 (2005)
(quoting City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580
S.E.2d 463, 466 (2003)).
When it issued its ruling, the trial court noted that mother refused many services which
would have improved her situation. She did not accept the Department’s help with housing. She
did not follow through with the psychiatric help. The trial court held that mother’s “failure to
address the psychiatric component is likely an obstacle in the future in terms of her progress.”
The trial court found that at times, mother was “uncooperative” and gave “misleading
information or incorrect information or withheld information.” The trial court held that mother
was unwilling and refused to accept help. She also lacked “parental judgment and insight.”
Furthermore, the trial court discussed the children’s condition when they came into foster
care. The trial court explained that B.R. was “almost nine years old and was not toilet trained
and barely spoke. He was thin. And he had this fear of fire alarms.” B.R. had to be placed in
residential treatment twice while he was in foster care. B.R. “had a hysterical reaction to the
news his mother would be visiting more . . . .” The younger children were “delayed” and said
“very few words.” Since being in foster care, the younger children’s communication skills and
motor skills started improving. A.R. became less withdrawn.
The trial court concluded that the children needed permanency. “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).
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Based on the evidence, the trial court did not err in terminating mother’s parental rights
pursuant to Code § 16.1-283(C)(2).
Relative placement
Mother argues that the trial court erred by finding that mother’s twin sister, Donetta
Redd, was not an appropriate relative placement for the children.
Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to relatives of the child, including grandparents.” Code § 16.1-283(A).
Donetta Redd testified that she was willing to care for the children. She lived with her
boyfriend and children in a single family home. Donetta Redd and her boyfriend were
employed. They started the process to become foster parents, and a home visit was conducted.
They also participated in several of the family planning meetings. The Department determined
that the children could not be placed with Donetta Redd because she was not married and her
boyfriend had been convicted of possession with the intent to distribute in 1995. He served a
three-year prison sentence and completed probation or parole in 1999. Once the Department
determined that the children could not be placed with Donetta Redd, she stopped taking the
necessary classes and participating in the planning meetings. She did not file a petition for
custody, but did come to the trial to indicate her willingness to care for the children.
The trial court stated that the “disqualifiers” for the Department were “not necessarily”
disqualifiers for the trial court “under these circumstances.” Instead, the trial court focused on
the fact that Donetta Redd and her boyfriend were not “aware of the special needs” of these
children. The trial court commented on the boyfriend’s testimony that he did not think B.R.
needed “anything special.” The trial court’s response was, “And it is clear that this child has
severe challenges and neither one [Donetta Redd nor her boyfriend] seems to have the insight to
even address it.” The trial court found their lack of insight into the children’s needs to be “very,
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very troubling,” especially considering that Dr. Ling explained the children needed a “proactive
advocate.” The trial court also was concerned about the space in the home, their work hours, and
their lack of meaningful participation in the process. Therefore, the trial court concluded that
Donetta Redd did not have “the ability to effectively care for these children.”
Contrary to mother’s arguments, the trial court looked beyond the boyfriend’s conviction
to determine that Donetta Redd would not be a suitable relative placement. The trial court
detailed its concerns with placing the children with Donetta Redd and did not err in finding that
she was not a suitable relative placement.
Abuse and/or neglect
Mother argues that the trial court erred in finding that there was sufficient evidence of
abuse and/or neglect of Ch.R., A.R., and Ca.R. Mother asserts that the children were not
physically or mentally abused or injured. She contends there was no evidence that they were in
substantial risk of death or bodily injury. She also notes that she provided for their basic needs
of shelter and food.
The trial court concluded that the three younger children were neglected physically and
emotionally. See Code § 16.1-228. “[T]he statutory definitions of an abused or neglected child
do not require proof of actual harm or impairment having been experienced by the child.”
Jenkins v. Winchester Dep’t of Family Servs., 12 Va. App. 1178, 1183, 409 S.E.2d 16, 19
(1991).
The trial court commented on mother’s lack of parenting judgment and her refusal to
accept assistance. The children lacked developmentally appropriate communication and motor
skills. The trial court noted that mother frequently moved with the children. They lived in a
“dirty, unkept room” with numerous people. They ate primarily junk food on the floor because
there was no table at which they could eat.
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Several social workers and home-based counselors testified about mother’s lack of
insight into her family’s situation. Mother would tell them that things were going well or simply
not respond to questions. Dr. Ling testified that mother acted with “inertia” and “did not appear
to be able to respond to situations that would occur from a parenting perspective in a timely,
efficient or consistent manner.”
“The term ‘substantial risk’ [in Code § 16.1-228] speaks in futuro and the expert
testimony in the record supports a finding that [mother’s] mental incapacity prevented her from
rendering appropriate parental care.” Id.
The trial court did not err in finding that the children were neglected.
Termination pursuant to Code § 16.1-283(B)
Mother argues that the trial court erred in terminating her parental rights to her three
youngest children pursuant to Code § 16.1-283(B), which states a parent’s parental rights may be
terminated if:
1. The neglect or abuse suffered by such child presented a serious
and substantial threat to his life, health or development; and
2. It is not reasonably likely that the conditions which resulted in
such neglect or abuse can be substantially corrected or eliminated
so as to allow the child’s safe return to his parent or parents within
a reasonable period of time. In making this determination, the
court shall take into consideration the efforts made to rehabilitate
the parent or parents by any public or private social, medical,
mental health or other rehabilitative agencies prior to the child’s
initial placement in foster care.
“[S]ubsection B [of Code § 16.1-283] ‘speaks prospectively’ and requires the circuit
court to make a judgment call on the parent’s ability, following a finding of neglect or abuse, to
substantially remedy the underlying problems.” Toms, 46 Va. App. at 270-71, 616 S.E.2d at 772
(quoting Winslow, 40 Va. App. at 562-63, 580 S.E.2d at 466).
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As discussed above, the trial court found that the three youngest children were neglected
and that mother did not substantially remedy her situation, despite the numerous services
provided to her. Mother did not resolve the issues of housing, parenting skills, and mental
health. She was not in a position to care for the children and meet their needs. Consequently,
the trial court did not err in terminating mother’s parental rights to Ch.R., A.R., and Ca.R.
pursuant to Code § 16.1-283(B).
CONCLUSION
For the foregoing reasons, the trial court’s rulings are summarily affirmed. Rule 5A:27.
Affirmed.
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