Patricia Tackett v. Arlington County Department of Human Services , 62 Va. App. 296 ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Humphreys and Kelsey
PUBLISHED
Argued at Alexandria, Virginia
PATRICIA TACKETT
v. Record No. 1519-12-4
ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES
DELORES O’BRIEN HEFFERNAN OPINION BY
JUDGE ROBERT J. HUMPHREYS
v. Record No. 1471-12-4 AUGUST 13, 2013
ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES
DELORES O’BRIEN HEFFERNAN
v. Record No. 1520-12-4
ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES1
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge Designate
Deborah Kramer for appellant Patricia Tackett, Record No.
1519-12-4.
Elizabeth Tuomey (Tuomey Law Firm, PLLC, on briefs), for
appellant Delores O’Brien Heffernan, Record No. 1471-12-4.
Delores O’Brien Heffernan, pro se, Record No. 1520-12-4.
Jason L. McCandless; Karen M. Grane, Guardian ad litem for the
infant child (Office of the County Attorney; Karen Grane PLC, on
briefs), for appellee.
1
Because the assignments of error are interrelated and because they share a common
factual background, we have consolidated these appeals for purposes of this opinion.
Patricia Tackett (“mother”) and Delores O’Brien Heffernan (“grandmother”) appeal the
Arlington County Circuit Court (“circuit court”) orders involuntarily terminating mother’s
residual parental rights regarding the minor child A.O., changing the permanency plan for A.O.
to adoption, ordering no contact between the appellants and A.O. until A.O.’s eighteenth
birthday, and denying counsel to A.O. in addition to her appointed guardian ad litem.
Grandmother acting pro se also separately appeals the order denying her petition for custody of
A.O. Arlington County Department of Human Services (“DHS”) assigns cross-error in Record
No. 1471-12-4 to the circuit court’s determination that grandmother has standing to contest the
termination of mother’s parental rights.
I. BACKGROUND
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. Richmond Dep’t
of Soc. Servs. v. Crawley, 47 Va. App. 572, 575, 625 S.E.2d 670, 671 (2006). So viewed, the
evidence established the following:
A.O. was born on September 16, 1999, to mother in Montgomery County, Maryland
while mother was incarcerated. The Circuit Court for Montgomery County granted grandmother
temporary custody of A.O. when she was four days old and, on January 20, 2005, granted
grandmother guardianship of A.O. Grandmother was also the guardian of A.O.’s older sister,
Samantha. A.O. lived with grandmother from birth until removal by DHS.
Tammee Gaymon, an Arlington County Child Protective Services (“CPS”) worker, first
became aware of A.O. on February 11, 2009, when she interviewed grandmother regarding her
alleged abandonment of Samantha. Grandmother had been unemployed since June 2008, and
was about to lose her apartment where she was living rent free. Gaymon discussed housing
options with grandmother and told her that if she did not secure housing, then A.O. could be
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placed in foster care. Grandmother did not follow through with the housing services offered to
her by DHS.
On February 19, 2009, Gaymon learned that grandmother withdrew A.O. from Arlington
Science Focus School and was moving to Florida. Gaymon also learned of the family’s previous
contacts with Child Protective Services in Fairfax County, including two allegations that
grandmother neglected Samantha. Concerned about A.O.’s safety, Gaymon requested an
emergency removal order (“ERO”) for A.O. on February 19, 2009. The Arlington County
Juvenile and Domestic Relations District Court (“JDR court”) issued the ERO and appointed
Karen Grane as A.O.’s guardian ad litem (“GAL”). The next day, Gaymon went to
grandmother’s apartment, but no one answered the door. Neighbors reported that at times A.O.
was home alone for extended periods and unsupervised for several hours in the apartment lobby
during the school day.
The removal order remained outstanding. After trying to call and locate A.O. and
grandmother, Gaymon reached grandmother on the phone on May 26, 2009. Gaymon informed
grandmother that she needed to come to court to inform the judge of her whereabouts and plans
for A.O. Grandmother stated that A.O. was in another jurisdiction and that Gaymon needed to
close her case. Grandmother also said she had a condo in the area but refused to provide her
address or provide A.O.’s location.
In July 2010, A.O. was caught shoplifting in Fairfax while with grandmother who was
arrested for contributing to the delinquency of a minor. A.O. was removed from grandmother’s
custody and placed in foster care on July 22, 2010. Upon A.O.’s removal, mother was
incarcerated for stealing grandmother’s car after grandmother sought a protective order against
her. Grandmother called Gaymon the night of A.O.’s removal. She said that she had been living
in Fredericksburg for two and a half months and prior to that they stayed in a hotel somewhere in
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Fredericksburg. She also admitted to moving to Florida in February 2009, and said that A.O.
was home schooled but she was not registered in a homeschool program because they were
homeless.
DHS facilitated a Family Partnership Meeting (FPM) on July 27, 2010, which
grandmother attended. The JDR court held a five-day hearing on July 29, 2010, where
grandmother was served with “ERO 7/26/10” in court. The JDR court found that A.O. had not
been in school and had not had stable housing since February 2009, and ordered that A.O.
remain in foster care until the thirty-day hearing. The thirty-day hearing occurred on August 19,
2010. Although grandmother was notified of the court date, she did not attend. The JDR court
found that A.O. was abused or neglected, ordered DHS to file a foster care plan, and continued
the case for a dispositional hearing.
Meanwhile, grandmother dropped the charge against mother regarding her car so mother
could help get A.O. back from DHS. DHS did not have contact with mother while she was
incarcerated. Upon her release from jail, mother went to DHS on September 14, 2010, and social
worker Maurine Watkins began to work with her. From her first visit to DHS, mother repeatedly
stated that she was unable to care for A.O. because of a lack of housing and that she had no
capacity or means to provide for A.O. She also stated that her medical condition and back
problems prevented her from being a placement option for A.O. and that she was in the process
of getting herself together. DHS did not seek to place A.O. with mother because of these
representations and her extensive criminal and drug history. Further, mother had not seen A.O.
for a year prior to A.O.’s removal. On two other occasions prior to removal, mother did not see
A.O. for two or three years at a time.
On September 30, 2010, the JDR court ordered that the goal for A.O.’s placement was
“return to own home,” meaning with grandmother. The JDR court approved the foster care
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service plan dated September 1, 2010, and ordered that the “parents shall continue to utilize their
best efforts to fulfill the requirements of the foster care plan approved herein and orders[ ] of the
court entered herein.” Grandmother and mother attended this dispositional hearing.
The foster care service plan noted that grandmother has a history of instability in
housing and employment, poor judgment regarding the care of A.O., and a history of legal
problems, including a charge of check fraud. The report also noted A.O.’s educational gaps due
to frequent moves with grandmother—at the time of removal A.O. was ten years old and she had
attended eleven different schools. The foster care service plan required the following of
grandmother:
1) Complete a psychological evaluation and [follow] through with
all recommended services. Target Date 4/2011
2) Secure stable housing and employment. Target Date 11/2010
3) Provide pertinent documents (i.e. lease agreement/closing
papers) to verify permanent residence. Target Date 11/2010
4) Provide proof of employment/income (i.e. most recent pay
stubs, W-2s, social security) to verify incoming finances. Target
Date 01/2011
5) Communicate any changes in employment or housing status to
DHS. Target Date – Ongoing
6) Complete a fingerprint based criminal history record check.
Target Date 10/2010
Grandmother did not cooperate with DHS and failed to comply with the listed
requirements of the plan. She inundated foster care workers with concerns, requests, faxes, and
inaccurate assertions of her rights to raise A.O. without interference by DHS. She called DHS
many times per week. On November 20, 2010, grandmother showed up at DHS unannounced,
seeking to speak to the director. Tabitha Kelly, Child Welfare Bureau Chief, spoke with
grandmother. Grandmother threatened to sue everyone in the Department. Kelly advised
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grandmother to comply with the court orders, including the psychological evaluation.
Grandmother spoke of her depression and how suicide rates go up around that particular time of
year. These comments confirmed Kelly’s understanding of grandmother’s need for
psychological testing to determine if she was healthy enough to care for A.O. Sherri Brothers,
the foster care supervisor of A.O.’s case, also testified that grandmother’s communications and
behavior over time made clear to her that psychological testing of grandmother was necessary.
On December 9, 2010, grandmother called Brothers and stated that she was going to be
testifying to members of Congress about the corruption in the family courts. On December 20,
2010, Watkins had a phone conversation with grandmother, again discussing the psychological
evaluation and the required release form. On December 30, 2010, Brothers met with
grandmother to discuss services necessary for her reunification with A.O. Grandmother
expressed concerns about A.O. being drugged and stated that she had a retired military officer
make a report to the FBI regarding A.O.’s safety in foster care.
At the beginning of 2011, grandmother had not completed the required psychological
evaluation and had not submitted pay stubs to verify her employment as required by the foster
care plan. In January 2011, grandmother refused to schedule a psychological evaluation because
of her criminal case pending in Maryland and she said she may just have to accept the
consequences from the court. On January 26, 2011, the JDR court ordered grandmother to
complete the psychological evaluation within 30 days. DHS made another referral for her but
grandmother did not participate. In February of 2011, Jason McCandless, the county attorney
representing DHS, emailed grandmother reminding her that foster care review was approaching
in March and reminding her of the documentation she must provide. McCandless again emailed
grandmother on March 12, 2011 addressing her complaints and reminding her of what she must
complete under the foster care service plan.
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Following her removal from grandmother’s custody, A.O. was placed in foster care with
the Burka family where she did well. However, grandmother disrupted A.O.’s relationship with
the Burkas. Grandmother refused to sign a form to get tutoring service for A.O. when she was
struggling with her homework. After weekly phone visitation with grandmother, A.O. would be
hostile towards the Burkas for a time. Grandmother would have inappropriate discussions with
A.O., talking about A.O.’s case and asking if she was scared and really safe with the Burkas, and
suggesting that grandmother could pick her up if necessary. These conversations were upsetting
to A.O. Grandmother also called the police several times making unsubstantiated reports that
A.O. was in danger with the Burkas. Based upon these reports, police showed up at the Burkas’
home on at least three occasions at different hours of the day and night. When the Burkas and
A.O. were staying in a Delaware hotel over the Christmas holidays, grandmother said she filed a
report with the Attorney General’s office in Delaware, claiming A.O. was being abused and
asking police to investigate. The Burkas finally requested removal of A.O. from their care when
grandmother showed up at a meeting in March 2011 with pictures of the Burka family at a
sporting event taken unbeknownst to them. A.O. was upset and angry when she was told she
would have to move from the Burkas. A.O. told grandmother during phone visitation that she
was safe with the Burkas and did not want to move, and she blamed grandmother for making her
move.
Dr. Stephanie Tebor, a clinical psychologist, tested A.O. in February 2011. She reported
that A.O. has experienced trauma from early separation from her biological parents, moving
from place to place, erratic school history, being a witness to shoplifting, and placement in foster
care. She reported her expert opinion that A.O. has very limited insight into her behavior,
actions, and consequences, she is confused, has trouble distinguishing reality from fantasy which
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impairs her judgment, and she is under a lot of pressure from external sources, including
grandmother and mother.
On March 24, 2011, six months after the JDR court ordered grandmother to comply with
the foster care service plan, the parties appeared for a foster care review. At this point,
grandmother still had not participated in the required psychological evaluation, submitting only a
self-proclaimed “simple screen,” signed by a doctor. DHS tried to get grandmother the required
evaluation through the Multi-Cultural Center, until she missed so many appointments that the
Center would no longer schedule one for her. DHS also told grandmother how she could
schedule her own appointment with a doctor and encouraged her to use Dr. King; grandmother
never cooperated with their efforts. Grandmother also made substantial amendments to the
required release of information form, making it impossible for DHS to get any results had
grandmother submitted to the psychological evaluation. However, DHS continued to request a
permanency plan with goal of return to home to give grandmother additional opportunities to
comply with the court orders. The JDR court again ordered grandmother to complete the
psychological evaluation, sign the required release form, have stable housing and an educational
plan, and be able to support A.O.
The JDR court noted in the March 24, 2011 order that “Mother does not request custody
. . . and should not have unsupervised [visitation without] completing mental health evaluation
and supports custody for her mother.” Mother never completed a psychological evaluation or
asked for help to get one. Mother supported grandmother having A.O., even though mother and
grandmother have had a tumultuous relationship. Also in March 2011, mother told Wilson that
she should have given all three of her children up for adoption. Brothers testified that DHS did
not provide services to mother because she was not interested in being a potential custodian for
A.O. DHS workers still communicated with mother about A.O. and invited her to some
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meetings, and mother attended the court hearings. In the beginning, mother’s involvement was
too inconsistent for visitation and A.O. did not want contact with mother because she had been
hurt by mother coming and going in her life. However, beginning in March 2011, mother had
supervised visitation with A.O.
A.O. began living with the Burns foster family on March 19, 2011. A.O. told
grandmother during visitation that she was happy in her placement and happy that she had a
family. Mrs. Burns noticed that A.O. was fine when she did not have communication with
mother and grandmother, but after communication with them A.O. became defiant, angry, and
disrespectful to the Burnses. After Mrs. Burns recovered an unauthorized cell phone from A.O.,
A.O. eventually admitted that grandmother would come to school and give her cell phones.
Sometimes A.O. would confide in Mrs. Burns. She told Mrs. Burns that she did not want to
return to grandmother; she only wanted to live with mother, explaining that she did not get along
with grandmother and did not like the things that happen when she is with her. During her time
with Mrs. Burns, A.O. was consistent in this position.
In July 2011, DHS identified a new permanency goal of adoption for A.O. and requested
termination of parental rights. On August 4, 2011, the JDR court approved the new foster care
service plan and the goal of adoption. Grandmother was incarcerated on this date, but her
guardian ad litem appeared in court for the hearing. Mother appeared at the August 4th hearing
and for the first time requested custody of A.O. From September 2010, when mother first
contacted DHS, to August 2011, mother never followed up with DHS to tell of her progress in
getting her life together.
On December 7, 2011, the JDR court held a hearing regarding the termination of
mother’s parental rights. In a meeting with Brothers immediately before the termination hearing,
mother stated that she was not in a position to provide care for A.O. and she was okay with A.O.
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being adopted as long as she could still have contact with her. Mother advised Brothers that
grandmother was too old to care for A.O. and that grandmother was “going crazy.” As of the
December 7, 2011 hearing, grandmother still had not provided DHS with proof of employment
or employment income beyond personal checks, or participated in a court-approved
psychological evaluation. The JDR court terminated the parental rights of mother and the
biological father2 and awarded custody of A.O. to the Department of Human Resources of
Arlington County.3
A.O.’s disruptive and disrespectful behavior eventually led the Burnses to terminate their
care of A.O. in February 2012. DHS then placed A.O. in a respite care home with the Campbell
family. A.O. ran away from the Campbells’ home and went with grandmother to Maryland
where they lived for two weeks. Grandmother called James Manship, a leader from her church,
to do a video “deposition” of A.O. that was later introduced as an exhibit in the subsequent court
proceedings. In the video, grandmother, Manship, and George McDermott appear with A.O. and
engage in a dialog of numerous accusations about the Arlington County courts, DHS, and the
various foster care families who cared for A.O. Manship posted the video “deposition” along
with other information about A.O.’s case on the internet.
In June 2012, DHS placed A.O. in a residential treatment center. Her program therapist
identified A.O. as needing treatment for depression and mood stabilization, impaired social
skills, and her history of abuse and family issues. Her history included sexual abuse, trauma of
2
A.O.’s biological father was represented by counsel at the hearing terminating his
parental rights. While he had notice of the hearing, he did not personally appear, and he did not
appeal the JDR court order terminating his parental rights.
3
At the December 7th hearing, mother was found in summary contempt of court for her
repeated outbursts and interruption of the proceeding; the circuit court affirmed this finding and
it is not part of the present appeal.
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moving around, and not having a stable home, which she desires. However, A.O. identified her
safe place as being with grandmother.
Both mother and grandmother appealed the termination of mother’s parental rights to the
circuit court. At a motions hearing on March 14, 2012, the circuit court denied DHS’s motion to
dismiss grandmother’s appeal of the termination of mother’s parental rights based on standing.
The court found that “she has facial basis to be in this Court by having a [Maryland] custody
order,” and she comes into court “similarly situated to somebody who had filed their custody
petition . . . .” Grandmother filed a petition for custody of A.O. in the JDR court on the same
day. On April 5, 2012, the JDR court dismissed the petition, citing that all parental rights have
been terminated and are on appeal to the circuit court and that grandmother’s petition for custody
should therefore be heard in circuit court along with the termination of parental rights case.
Grandmother filed her appeal to circuit court on the same day. On June 8, 2012, the circuit court
granted Grane’s motion to consolidate grandmother’s petition for custody case with the other
cases, finding that they share common questions of law and fact and that no party’s rights are
prejudiced. The court also granted DHS a protective order for discovery to prevent further
dissemination of A.O.’s personal information on the internet. Mother and grandmother filed
motions for appointment of counsel for A.O., in addition to her guardian ad litem; the circuit
court denied the motions. The five-day hearing began on June 20, 2012.
Twelve-year-old A.O. testified at the hearing, in the presence of mother and grandmother.
She was asked to say what she wanted the court to hear. She said that she has a strong
relationship with grandmother, and she has not been around mother much but has gotten to know
her better through DHS visits and phone calls. She said the ideal place for her is with mother
and grandmother. Contrary to her previous representations, she stated that she did not like
anything about the Burkas or Burnses, except going to the movies with the Burnses. A.O. said
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that she does not need guidance, just love, and that she has become more mature by
“unbelievable standards.” She believed that grandmother and mother have stable homes and can
take care of her.
Testimony elicited from mother at the hearing included the following: Mother received
$10,000, mostly in cash, when she gave another daughter up for adoption. She spent all the
money in eight days. She bought a business, a truck, some shoes, and some crack cocaine.
Mother has no health insurance, and her church pays for her medications. Mother has multiple
convictions for petit larceny and a conviction for making false statements to the police. Mother
recently pled guilty to prescription fraud in Fairfax County. She does not work now because she
has no skills, and she has not looked for work in a year. She lives with her husband and oldest
daughter, Samantha, who support her financially. She says she needs counseling. She continues
to suffer from arteriovenous malformation and back pain. Mother said she has anger and
hostility towards grandmother, that grandmother has manipulated her, and that grandmother has
not given her guidance. Mother conceded on cross-examination that on January 17, 2012 she
told McCandless, the attorney for DHS, that she could not take care of A.O. but that she also did
not want A.O. to go with grandmother.
Regarding the permanency plan of adoption, the circuit court found that based upon the
facts contained in the foster care plan and the testimony, “[r]easonable efforts to reunite the child
with his or her parents are not required pursuant to Virginia Code § 16.1-281 B,” and the
permanency goal of adoption is achievable. Regarding termination of mother’s parental rights,
the court found that DHS met its burden of proving by clear and convincing evidence the
requirements of Code § 16.1-283(C)(1) or (C)(2). In accordance with Code § 16.1-283(G), the
circuit court also found that A.O. is not fourteen years old or older or otherwise of an age of
discretion to exercise a veto over the placement decision. The court ordered no contact between
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grandmother and A.O., and between mother and A.O., until A.O.’s eighteenth birthday, and
denied grandmother’s petition for custody.
II. ANALYSIS
A. Termination of Mother’s Parental Rights, Record No. 1519-12-4
1. Denial of Additional Counsel for A.O.
Mother and grandmother both argue that the circuit court erred in refusing to appoint an
attorney for A.O. contrary to Code § 16.1-266(E) and (F), as the wishes of the minor child were
in conflict with those of her guardian ad litem.
Code § 16.1-266(A) provides that,
Prior to the hearing by the court of any case involving a child who
is alleged to be abused or neglected or who is the subject of . . . a
petition seeking termination of residual parental rights . . . the court
shall appoint a discreet and competent attorney-at-law as guardian
ad litem to represent the child pursuant to § 16.1-266.1.
Code § 16.1-266(E) states:
In those cases described in subsections A, B, C and D, which in the
discretion of the court require counsel or a guardian ad litem to
represent the child or children or the parent or guardian or other
adult party in addition to the representation provided in those
subsections, a discreet and competent attorney-at-law may be
appointed by the court as counsel or a guardian ad litem.
(Emphasis added). Code § 16.1-266(F) states: “In all other cases which in the discretion of the
court require counsel or a guardian ad litem, or both, to represent the child or children or the
parent or guardian, discreet and competent attorneys-at-law may be appointed by the court.”
(Emphasis added).
Clearly any appointment of counsel in addition to a guardian ad litem is a matter left to
the sound discretion of the circuit court. Here, the court heard oral argument on the mother’s and
grandmother’s motions to appoint counsel to A.O. Neither mother nor grandmother has alleged
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that A.O.’s guardian ad litem, Karen Grane, failed to comply with Supreme Court Rule 8:6.
Rule 8:6 states that,
When appointed for a child, the guardian ad litem shall vigorously
represent the child, fully protecting the child’s interest and welfare.
The guardian ad litem shall advise the court of the wishes of the
child in any case where the wishes of the child conflict with the
opinion of the guardian ad litem as to what is in the child’s interest
and welfare.
Both mother’s and grandmother’s counsel concede that Grane disclosed A.O.’s desire to reunite
with her family. Further, A.O. testified before the circuit court where she stated her wishes to
live with mother or grandmother. Therefore, the circuit court was aware of A.O.’s wishes and
did not abuse its discretion in denying court-appointed counsel to A.O. in addition to her
court-appointed guardian ad litem.
Additionally, mother asserts on brief that the “due process rights accorded the minor
child in abuse and neglect proceedings are reflected in Virginia’s statutory scheme and in the
Supreme Court Guardian ad-Litem guidelines” [sic]. She further stated that the court’s decision
“was a denial of the minor child’s due process rights, as guaranteed by the Fourteenth
Amendment” because A.O. was not able to participate in the legal proceedings. This is the
extent of mother’s due process argument, which she makes for the first time on appeal. Thus,
mother’s claim of constitutional error is procedurally barred pursuant to Rule 5A:18, “No ruling
of the trial court . . . will be considered as a basis for reversal unless an objection was stated with
reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court
of Appeals to attain the ends of justice.” “The Court of Appeals will not consider an argument
on appeal which was not presented to the trial court. Rule 5A:18 applies to bar even
constitutional claims.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (citation omitted). Mother gives no reason for this Court to invoke the good cause or
ends of justice exceptions in Rule 5A:18. Thus, we will not address this due process argument.
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2. Age of Discretion of A.O.
Mother next argues that the circuit court
abused [its] discretion and committed reversible error [when it]
ruled that the minor child lacked the capacity, information,
intelligence and judgment to exercise her veto power in the
termination of her mother’s and grandmother’s parental rights.
This ruling was erroneous in that the minor child demonstrated an
understanding of the court process, understood that she might have
a veto, was a strong advocate for herself, and was recognized by
the court to have the capacity to make decisions about what church
to attend.
Code § 16.1-283(G) states that “residual parental rights shall not be terminated if it is
established that the child, if he is 14 years of age or older or otherwise of an age of discretion as
determined by the court, objects to such termination.” If the child is younger than fourteen,
the determination of whether or not the child has reached an “age
of discretion” is committed to the sound discretion of the trial
court. However, if the evidence proves that a child is “sufficiently
mature to have intelligent views and wishes on the subject” of the
termination proceeding, then the trial court should conclude that a
child who is younger than fourteen has reached the “age of
discretion.” When determining whether a child is mature enough
to have intelligent views and wishes on the subject, the trial court
should consider all of the circumstances, including the “capacity,
information, intelligence, and judgment of the child.” The trial
court’s determination will be reversed on appeal only for an abuse
of discretion.
Hawks v. Dinwiddie Dep’t of Soc. Servs., 25 Va. App. 247, 253, 487 S.E.2d 285, 288 (1997)
(internal citations omitted). This Court said that the “focus of the inquiry is whether the child,
regardless of how old he or she may be, is mature enough to intelligently consider the
circumstances and ramifications of the termination proceeding.” Id. at 255, 487 S.E.2d at 289.
When asked to consider whether A.O. was of an age of discretion, the circuit court stated,
The Court does have a vivid recollection of the interaction that this
Court saw with the questions that were posed to her. I watched her
very carefully. And it’s a shame, it’s an absolute shame, that what
she has been put through for the last 2 years by her mother, by her
sister, by her grandmother, by Mr. Manship, and all these other
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problems that have been unnecessarily caused. It has affected her
capacity, her information, her intelligence, and her judgment. It’s
this Court’s belief that because of the interaction by her
grandmother and others that she has, as some say, been “drinking
the Kool-Aid.” I think she’s been manipulated. She does not have
veto power as far as this Court is concerned, as she has not reached
the age of discretion.
Evidence in the record supports the court’s conclusion that A.O. has been manipulated
and is not otherwise of an age of discretion. A.O. expressed sadness when she had to leave the
Burka family. After a few months with the Burns family, A.O. reported in therapy that she
enjoyed her time at her foster home and liked going on outings and trips with the Burns family,
and liked their four dogs. In December 2011, after nine months with the Burns family, A.O.
reported to her therapist that she liked her foster home placement and enjoyed living with the
Burns. She reported a positive connection with her foster family, and expressed her desire to
remain in the home because she felt stable. After she was removed from the Burns family, she
shared with the therapist her hopes to return to the Burnses’ home. A.O. also expressed to her
therapist confusion and anger towards her biological family and did not understand her family’s
motivation to regain custody of her. A.O.’s anger was focused on mother and grandmother.
However, A.O. testified at the hearing, in mother’s and grandmother’s presence, that she did not
like anything about the Burkas or Burnses except going to the movies, and she wanted to live
with mother or grandmother. A.O. also testified that at her age she did not need any guidance,
only love, further demonstrating her lack of judgment.
In February 2011, sixteen months before the circuit court hearing, a clinical psychologist
evaluated A.O. and noted that “her judgment and insight appeared impaired” and she “has
retreated into a world of fantasy and escapism” and has resorted to lying as “an automatic
self-protective mechanism.” In August 2011, a therapist noted that A.O. “reports feeling torn
between what her biological family tells her and what she feels.” In February 2012, A.O.
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reported that she behaves in a manner she thinks her biological family wants her to behave and
she feels her family wants her to act out. The therapist concluded that A.O. was unable to make
the connection that her behaviors lead to consequences.
Based on the above evidence, the circuit court did not abuse its discretion in finding that
A.O. was not of an age of discretion to veto the termination of her mother’s parental rights.
3. Sufficiency of the Evidence for Termination of Mother’s Parental Rights
Mother’s third assignment of error is that the circuit court
abused its discretion [and] committed reversible error when it ruled
that the mother failed to maintain continuing contact with and to
substantially plan for the future of the minor child for a period of
six months after the child’s placement in foster care
[notwithstanding] the reasonable and appropriate efforts of the
social, medical[,] mental health and other rehabilitative agencies to
communicate with the parent and to strengthen the parent/child
relationship.
Mother’s fourth assignment of error is that the circuit court
abused its discretion [and] committed reversible error when it ruled
that the mother had been unwilling or unable within a reasonable
period of time not to exceed twelve (12) months from the time the
child was placed in foster care to remedy substantially those
conditions which led to the child’s placement in foster care
[notwithstanding] the reasonable and appropriate efforts of social,
medical[,] mental health or other rehabilitative agencies.
We consider mother’s third and fourth assignments of error together as the issues are closely
related.
It was only necessary for the circuit court to find clear and convincing evidence that DHS
met its burden of proof under either Code § 16.1-283(C)(1) or Code § 16.1-283(C)(2). Before
residual parental rights can be terminated under Code § 16.1-283(C)(1), a court must find, based
on clear and convincing evidence, that:
The parent or parents have, without good cause, failed to maintain
continuing contact with and to provide or substantially plan for the
future of the child for a period of six months after the child’s
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placement in foster care notwithstanding the reasonable and
appropriate efforts of social, medical, mental health or other
rehabilitative agencies to communicate with the parent or parents
and to strengthen the parent-child relationship.
Alternatively, under Code § 16.1-283(C)(2), a court must find that:
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.
“When addressing matters concerning a child, including the termination of a parent’s
residual parental rights, the paramount consideration of a trial court is the child’s best interests.”
Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991). “The trial court’s judgment, ‘when based on evidence heard ore tenus, will not be
disturbed on appeal unless plainly wrong or without evidence to support it.’” Id. (quoting Peple
v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)).
“The preservation of the family, and in particular the parent-child
relationship, is an important goal for not only the parents but also
government itself. While it may be occasionally necessary to sever
the legal relationship between parent and child, those
circumstances are rare. Statutes terminating the legal relationship
between parent and child should be interpreted consistently with
the governmental objective of preserving, when possible, the
parent-child relationship.”
Lowe v. Dep’t of Public Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986) (quoting Weaver
v. Roanoke Dep’t of Human Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980)).
Mother complains that DHS did not inform her about the emergency removal hearing or
the thirty-day adjudicatory hearing, did not mail her copies of foster care plans, did not include
her in the family partnership meetings, and did not begin her visitation with A.O. until six
months after she initiated contact with DHS.
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However, mother testified that on July 19, 2010, she and grandmother had an argument
and grandmother called the police who arrested mother. As mother was sitting in the back of the
police car, she told the police officer everything she could possibly tell her “to get my daughter
away from my mother.” She told the officer that the police were looking for A.O. and gave the
name of the social worker, Gaymon, and by her own admission, mother was aware of A.O.’s
removal. Mother was incarcerated for seventy-five days and released September 13, 2010. She
was incarcerated at the time of the emergency removal hearing and at the thirty-day hearing,
where the JDR court determined that A.O. had been abused or neglected. Although she left
early, mother attended the September 30, 2010 dispositional hearing where the court approved
the foster care plan on file for A.O., and the dispositional order states that the foster care plan
was sent by the court to mother. Further, the only family partnership meeting in this case
occurred on July 27, 2010, while mother was incarcerated. Therefore, mother’s arguments
concerning lack of notice and involvement are without merit.
As for visitation, mother was infrequently involved in A.O.’s case and in the beginning
her involvement was too inconsistent for visitation, which began in March 2011. Further, A.O.
did not want contact with mother at first because she had been hurt by mother coming and going
in her life. Mother’s position over and beyond the six-month time period after A.O. was placed
in foster care, see Code § 16.1-283(C)(1), was that she was getting herself together, she was not
able to care for A.O., and she supported A.O. living with grandmother. Therefore, the evidence
supports the circuit court’s finding that mother failed to maintain continuing contact with and
substantially plan for the future of A.O. within the six months after A.O.’s placement in foster
care.
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Mother argues that her actions were not the cause of the child being placed into foster
care and that she was stable, had a home, and was financially supported by her daughter and
husband by the time of the hearing in circuit court in June 2012.
This Court has previously noted that the
twelve-month time limit [in Code § 16.1-283(C)(2)] . . . was
designed to prevent an indeterminate state of foster care “drift” and
to encourage timeliness by the courts and social services in
addressing the circumstances that resulted in the foster care
placement. L.G. v. Amherst County DSS, 41 Va. App. 51, 56, 581
S.E.2d 886, 889 (2003). Within this “reasonable period” time
frame, the various supportive and rehabilitative agencies must use
“reasonable and appropriate efforts” to assist the parent in
remedying those conditions. Code § 16.1-283(C)(2). “If the
parent fails to substantially remedy those conditions within twelve
months the court may act to prevent the child from lingering in
foster care.” L.G., 41 Va. App. at 57, 581 S.E.2d at 889.
Akers v. Fauquier Cnty. Dep’t of Soc. Servs., 44 Va. App. 247, 256-57, 604 S.E.2d 737, 741
(2004).
While arguably it was grandmother’s immediate actions that led to A.O.’s foster care
placement, mother’s position that she could not take A.O. certainly contributed to A.O.’s
continued placement in foster care, as mother maintained that she was unable to take A.O. until
she petitioned for custody of A.O. thirteen months after A.O. was placed in foster care. Even
after she petitioned for custody, she represented several times that she could not care for A.O.
and wavered on whether or not she wanted A.O. to live with grandmother. “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). While mother testified
that she had housing and the financial support of her husband at the time of the circuit court
hearing, as of January 2012 she still represented that she could not take care of A.O. Therefore,
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the circuit court did not abuse its discretion in finding that mother was unwilling or unable to
remedy the circumstances that led to A.O.’s placement in foster care.
Mother further complains that the evidence does not support the circuit court’s
determination (1) that the efforts extended by DHS to strengthen the parent-child relationship
were reasonable and appropriate, and (2) that the services offered to mother were reasonable.
DHS did not offer many services to mother; the record only supports that a psychological
evaluation was recommended to her and scheduled, but she did not submit to the evaluation.
While DHS communicated with mother to an extent and facilitated supervised visitation with
A.O., DHS did not provide further services to mother because of her stated position that she was
not a placement option for A.O.
The statutory language contained in Code § 16.1-283(C)(1)
requires “reasonable and appropriate” efforts to be made to provide
services. We must interpret the statutory mandate in accordance
with the language chosen by the legislature. “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, 7 (1992)
(emphasis added).
In Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 288 S.E.2d 410 (1982), the
father was not offered any services, because DSS maintained that he never contacted it or
requested any assistance, and failed, without good cause, to communicate with the children for
twelve months or failed to make reasonable progress under the foster care plan to eliminate the
conditions that led to the children’s foster care placement. The Supreme Court assumed that
DSS made out a prima facie case for termination of father’s parental rights, and then stated that
where there is “undisputed evidence that a parent has not been offered or provided services, the
prima facie case is overcome, and the party moving for termination is put to the burden of
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proving the factors listed in § 16.1-283(C)(2). And in the absence of such proof, reversal of a
termination order is required.” Id. at 243, 288 S.E.2d at 414. The Court added, “This is not to
say that the Division must force its services upon an unwilling or disinterested parent. But that is
not the situation here; because Woodson was not offered any services, we have no way of
knowing whether he would have been willing or interested.” Id. at 243-44, 288 S.E.2d at 415.
This case is easily distinguished from Harris because in Harris, the father had no contact
with DSS, while in this case mother contacted DHS and made known her position that she was
not a placement option for A.O. As our Supreme Court stated, DHS is not required to force its
services upon an unwilling or disinterested parent. Id. at 243, 288 S.E.2d at 415. Further,
mother was offered a referral for a psychological evaluation in order to have unsupervised
visitation with A.O., but mother did not complete the evaluation. It was reasonable for DHS to
not provide further efforts or services for mother based on her inconsistent involvement and
consistent representation that she was not a placement option. Therefore, the circuit court did
not abuse its discretion in finding that DHS extended (1) reasonable and appropriate efforts to
communicate with mother and to strengthen the parent-child relationship, and (2) reasonable and
appropriate efforts to remedy the conditions that led to or required A.O.’s continuation in foster
care as it related to mother.
4. Due Process Claims
Mother’s final assignment of error is that the circuit court’s
failure to provide the mother with notice of emergency removal
hearing, notice of adjudicatory hearing, failure to appoint a
guardian ad litem for her while she was incarcerated, act of
permitting her attorney to withdraw prior to hearing terminating
her parental rights and denying her motion for a continuance was a
denial of her constitutional right to due process.
Mother did not argue before the circuit court that any of the above actions were a denial
of her constitutional rights; thus, she makes this argument for the first time on appeal. Mother
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argues in her reply brief that she “implicitly” argued below that she was denied due process.
However, the record reflects no mention of the deprivation of any constitutional right or due
process in mother’s argument in the circuit court.
Rule 5A:18 is clear that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling . . . .”
“‘Rule 5A:18 applies to bar even constitutional claims.’” Stokes v. Commonwealth, 61 Va. App.
388, 396, 736 S.E.2d 330, 335 (2013) (quoting Farnsworth v. Commonwealth, 43 Va. App. 490,
500, 599 S.E.2d 482, 487 (2004)). “As such, even due process claims will not be considered for
the first time on appeal.” Id. The purpose of Rule 5A:18 is to “‘allow correction of an error if
possible during trial, thereby avoiding the necessity of mistrials and reversals.’” Id. at 397, 736
S.E.2d at 335 (quoting Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232
(1986)). “By failing to raise this argument to the trial court, appellant deprived the trial court of
the opportunity to consider whether his procedural due process rights were violated.” Id.Mother did not request appellate review under either the good cause or ends of justice exceptions
in Rule 5A:18, and therefore we will not address mother’s fifth assignment of error as it is
procedurally defaulted.
B. Grandmother’s Appeal of the Termination of Mother’s Parental Rights, Record No. 1471-12-4
1. Grandmother’s Standing to Contest the Issue
Because it determines whether we may address several of grandmother’s assignments of
error, we first address the cross-error assigned by DHS. DHS argues that the circuit court erred
in determining that grandmother “has standing to contest the termination of the residual parental
rights of the biological mother.” Issues of standing are questions of law that this Court reviews
de novo. Kelley v. Stamos, 285 Va. 68, 73, 737 S.E.2d 218, 220 (2013). “The general
requirements of standing have often been stated: ‘The purpose of requiring standing is to make
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certain that a party who asserts a particular position has the legal right to do so and that his rights
will be affected by the disposition of the case.’” Id. (quoting Goldman v. Landsidle, 262 Va.
364, 371, 552 S.E.2d 67, 71 (2001)). Simply put, “one cannot raise third party rights.” DePriest
v. Commonwealth, 33 Va. App. 754, 761, 537 S.E.2d 1, 4 (2000). Exceptions to the standing
rule only apply to certain challenges under the First Amendment, and where “‘individuals not
parties to a particular suit stand to lose by its outcome and yet have no effective avenue of
preserving their rights themselves.’” Tucek v. Commonwealth, 44 Va. App. 613, 617 n.3, 606
S.E.2d 537, 539 n.3 (2004) (quoting DePriest, 33 Va. App. at 762, 537 S.E.2d at 4).
Grandmother did not have any legal right to assert that mother’s parental rights should
not be terminated. Parental rights to A.O. only belonged to mother and the biological father.
Grandmother had not adopted A.O. Grandmother was not the parent possessing the right to the
child or the child affected by the parent’s rights. See Wright v. Alexandria Div. of Soc. Servs.,
16 Va. App. 821, 433 S.E.2d 500 (1993) (child had standing to raise violation of mother’s
constitutional rights in a termination of parental rights case). Further, grandmother had an
effective avenue for preserving her custody of A.O., which was to file a petition for custody as
she did on March 14, 2012. We hold that the circuit court erred in finding that grandmother had
standing to challenge the termination of mother’s parental rights. Consequently, as grandmother
lacked standing to assert mother’s parental rights in the circuit court, it follows that she also
lacks such standing to challenge the judgment of the circuit court in three of her assignments of
error on appeal relating to mother’s parental rights, namely, that the circuit court erred in finding
“that there was clear and convincing evidence that termination of [mother’s] residual parental
rights was in the best interests of [A.O.]”; “that there was clear and convincing evidence to
support termination of [mother’s] residual parental rights, satisfying the statutory factors listed in
Virginia Code § 16.1-283(C1) and (C2)”; and “that [A.O.] was not otherwise at an age of
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discretion [to object to the termination of mother’s parental rights], under Virginia Code
§ 16.1-283(G).” Grandmother only has standing to appeal the circuit court’s findings made in
connection with the change in permanency goal and with regard to grandmother’s petition for
custody.
2. Grandmother’s Guardianship
Grandmother argues that the circuit court “erred in approving the goal of adoption for
[A.O.] because [grandmother] is [A.O.’s] legal guardian.” Grandmother argues that her
guardianship of A.O. is a distinct concept from custody. She asserts that “no order of the Trial
Court transferred, terminated, or otherwise ended [grandmother’s] guardianship,” as no court
order includes the word “guardianship,” and because grandmother’s Maryland guardianship
order remains effective, her consent is required before A.O. can legally be adopted.4 We
disagree.
Virginia JDR and circuit courts have subject matter jurisdiction to determine the custody,
control, or disposition of a child within its jurisdiction alleged to be abused or neglected or where
the termination of residual parental rights is sought. See Code §§ 16.1-241(A) and 16.1-244. If
a child is found to be abused or neglected, Code § 16.1-278.2 allows for a JDR court to order
transfer of legal custody to a local board of social services and terminate the rights of the parent
4
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified in
Virginia as Code § 20-146.1, et seq., addresses child custody determinations and proceedings,
including proceedings for abuse, neglect, guardianship, and termination of parental rights. Code
§ 20-146.1. The parties did not brief or argue in this Court the impact of the UCCJEA on the
ability of the circuit court to terminate mother’s parental rights or grandmother’s guardianship.
Moreover, it appears that prior to entry of the final orders of the circuit court, the Circuit Court
for Montgomery County, Maryland determined that it did not have jurisdiction over A.O. and
recognized Virginia’s authority over the matter, citing A.O.’s legal residence in Virginia, the
lawful return of A.O. to Arlington County Child Protective Services as her custodian after she
was missing with grandmother in Maryland, and grandmother’s participation in the multiday
hearing in Arlington County Circuit Court. Thus we need not and do not address either the
application or the impact of the UCCJEA on the termination of mother’s parental rights and, by
extension, on grandmother’s guardianship.
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pursuant to Code § 16.1-283. We have said that the “General Assembly contemplated that once
a trial court terminated a person’s parental rights, the next step was to determine who would have
custody of the child.” Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 196,
717 S.E.2d 811, 817 (2011). “Any order terminating residual parental rights shall be
accompanied by an order continuing or granting custody to a local board of social services, to a
licensed child-placing agency or the granting of custody or guardianship to a relative or other
interested individual . . . .” Code § 16.1-283. See also Code § 16.1-244 (Virginia circuit courts
have jurisdiction to determine the custody or guardianship of a child when custody or
guardianship is incidental to the determination of causes pending in such courts.). We also note
that under Maryland law a guardianship decree may be set aside or modified by a court having
jurisdiction over the custody or guardianship of the child, In re Arlene G., 483 A.2d 39, 42 (Md.
1984), and grandmother does not contest the circuit court’s jurisdiction on appeal.
We hold that grandmother’s foreign guardianship ended by operation of Virginia law
once mother’s parental rights were terminated. The order terminating mother’s parental rights
effectively set aside grandmother’s guardianship, when the circuit court, having considered
grandmother’s care of A.O., determined that it is in A.O.’s best interest to be in the custody of
DHS and placed for adoption with the consent of DHS, pursuant to Code § 16.1-283. Because
grandmother’s guardianship terminated concurrently with mother’s parental rights, it follows that
grandmother’s consent is not required to place A.O. for adoption.
3. Change in Permanency Goal
Grandmother’s second assignment of error is that the circuit court “erred in finding that
there was a preponderance of the evidence to support approval of the goal of adoption for
[A.O.].”
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“When addressing matters concerning a child, including the termination of a parent’s
residual parental rights, the paramount consideration of a trial court is the child’s best interest.”
Logan, 13 Va. App. at 128, 409 S.E.2d at 463. “‘In matters of a child’s welfare, trial courts are
vested with broad discretion in making the decisions necessary to guard and to foster a child’s
best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)).
The circuit court’s judgment will not be disturbed on appeal unless plainly wrong or without
evidence to support it. Id. “A preponderance-of-the-evidence standard governs judicial review
of the foster care plan recommendations . . . .” Najera v. Chesapeake Div. of Soc. Servs., 48
Va. App. 237, 240, 629 S.E.2d 721, 722 (2006).
Code § 16.1-282.1 provides that,
a permanency planning hearing shall be held within 11 months of
the dispositional hearing at which the foster care plan . . . was
reviewed if the child . . . (b) is under the legal custody of a local
board of social services . . . and has not had a petition to terminate
parental rights filed on the child’s behalf . . . . The board or child
welfare agency shall file a petition for a permanency planning
hearing within 10 months of the dispositional hearing at which the
foster care plan was reviewed pursuant to § 16.1-281. The purpose
of this hearing is to establish a permanent goal for the child and
either to achieve the permanent goal or to defer such action
through the approval of an interim plan for the child.
In this case the dispositional hearing was held on September 30, 2010, where the JDR
court ordered that the goal for A.O.’s placement was “return to own home,” (meaning with
grandmother). The court approved the September 2010 foster care plan, and ordered that the
“parents shall continue to utilize their best efforts to fulfill the requirements of the foster care
plan approved herein and orders[ ] of the court entered herein.” The plan required grandmother
to complete a psychological evaluation and follow through with all recommended services by
April 2011, secure stable housing and employment by November 2010, provide pertinent
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documents to verify permanent residence by November 2010, and provide proof of employment
and income to verify incoming finances by January 2011.
In July 2011, DHS identified the new permanency goal of adoption for A.O. and
requested termination of parental rights. On August 4, 2011 the JDR court approved a new
foster care plan and the goal of adoption. As of August 4, 2011, grandmother had not completed
the psychological evaluation required by the court, or followed through with any services that
might have been recommended as a result of the evaluation. Grandmother had only completed a
self-proclaimed “simple screen” of her mental health, which was not in compliance with the
court order. Grandmother’s need for a psychological evaluation was evident to the social
workers involved, based on her behavior and communications with them and A.O. At one point
grandmother had secured housing which a social worker visited in March 2011, but at the time of
the August 4th hearing she was in jail and she did not maintain residence at the previously
visited home. Grandmother had not provided sufficient proof of employment or verification of
her income beyond two personal checks. Foster parents testified that A.O. became upset and
confused and her behavior worsened after communicating with grandmother. Grandmother was
very uncooperative with the efforts of DHS and focused more on fighting with DHS than on
complying with the court orders to get A.O. back. Grandmother had a history with DHS
regarding neglect of her older granddaughter, Samantha. At times grandmother, Samantha, and
A.O. were homeless and lived in a car. Prior to removal, A.O. had very inconsistent schooling,
attending eleven different schools and at times no school at all while in grandmother’s custody.
“Virginia law recognizes the ‘maxim that, sometimes, the most reliable way to gauge a
person’s future actions is to examine those of his past.’” Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 267-68, 616 S.E.2d 765, 770 (2005) (quoting Petry v. Petry, 41 Va. App. 782,
793, 589 S.E.2d 458, 463 (2003)). This maxim certainly applies in grandmother’s case regarding
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A.O. as she failed to comply with the foster care service plan to improve her circumstances to
take care of A.O., and she demonstrated failure to properly care for A.O. in the past. The
evidence in the record before us supports that the circuit court’s order changing the goal from
return home to adoption was in the best interest of A.O.
4. No Contact Order
Grandmother’s sixth assignment of error is that the circuit court “erred in granting a No
Contact order, as such order is not in the best interests of [A.O.], is contrary to her expressed
wishes, and is unduly broad in its terms.”
When addressing matters concerning a child, the paramount consideration of a court is
the child’s best interests. Logan, 13 Va. App. at 128, 409 S.E.2d at 463. A circuit court is vested
with broad discretion in making decisions to foster a child’s best interests, and on appellate
review a circuit court is presumed to have made its determination based on the child’s best
interests. Id. The circuit court’s judgment will not be disturbed on appeal unless plainly wrong
or without evidence to support it. Id.The circuit court ordered grandmother and mother to have no contact with A.O. until
A.O.’s eighteenth birthday without the prior express written permission of DHS. Evidence in the
record supports that no contact with grandmother is in A.O.’s best interests. When A.O. did not
have communication with grandmother, A.O. was improving and doing well in foster care.
When A.O. did have contact with grandmother, she became defiant, disrespectful, and rude.
Grandmother would confuse and upset A.O. A.O.’s therapist noted in February 2012 that A.O.
behaves in a manner she thinks her family wants her to behave and A.O. acknowledged that she
feels her family would want her to act out. Grandmother consistently worked to sabotage the
efforts of DHS designed to improve A.O.’s well-being. Grandmother initiated unauthorized
contact with A.O. at school and provided her with unauthorized cell phones. She also took A.O.
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away from her lawful custodian, DHS, for two weeks. This evidence clearly supports the circuit
court’s finding that the no contact order as it relates to grandmother is in A.O.’s best interest.
5. Failure to Appoint Counsel for A.O.
Grandmother’s seventh assignment of error is that the circuit court “erred in refusing to
appoint an attorney for [A.O.]” We affirm the circuit court’s judgment on this assignment of
error for the reasons stated in subsection (A)(1), supra.
C. Grandmother’s Petition for Custody, Case No. 1520-12-4
1. Rule 5A:18
In grandmother’s pro se petition for custody appeal, she alleges a number of errors in the
circuit court to which she never made specific objections on the pages she cited as preserving the
issues. Rule 5A:18, cited supra, “requires a litigant to make timely and specific objections, so
that the trial court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding
unnecessary appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d
185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278
(2004)). Because grandmother did not raise her objections before the circuit court, as required
by Rule 5A:18, we cannot consider the following assignments of error on appeal:
Before hearing evidence from pro se Appellant, the Trial Court
called her unfit, including observing, without any basis, that she
could not take care of herself and, in violation of federal law, that
she was too old.
Without hearing any evidence presented at Circuit Court trial [sic]
to support it, the Trial Court accused [A.O.] of being guilty of
stealing.
The Trial Court allowed testimony in violation of attorney-client
privilege and clergy-client privilege, even though pro se Appellant
did not waive those privileges.
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[T]he Trial Court [c]onsidered factors not allowed to be considered
under Virginia and Federal law in denying custody of [A.O.] to her
legal guardian, pro se Appellant, including economic hardship.
[T]he Trial Court [e]ntered an order that was arbitrary and
capricious and procedurally defective, in that it did not set forth
any findings of facts or clearly cite to any findings of fact to
support denial of custody to pro se Appellant.
[T]he Trial Court [f]ailed to find that [pro se] Appellant had met
all of the statutory requirements for the granting of custody of
[A.O.] to pro se Appellant in response to her 2012 Petition for
Custody, and ignored evidence that she had steady income from
social security and a job, obtained a psychological evaluation that
was not found by any court to be unsatisfactory, and had a home to
live in.
2. Rule 5A:20
Grandmother acting pro se also asserts several assignments of error for which she
provides no principles of law or authority to support her argument. Rule 5A:20 requires an
appellant to support her argument with law or authority: “The opening brief of appellant shall
contain: . . . (e) The standard of review and the argument (including principles of law and
authorities) relating to each assignment of error.” An argument amounting to no more than an
assertion that the circuit court’s action was contrary to the law or the evidence is inadequate and
constitutes a waiver of that issue. Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d
237, 249 (2010) (applying Rule 5:27(d) which requires that opening briefs before the Supreme
Court contain the “standard of review, the argument, and the authorities relating to each
assignment of error”). In Stokes v. Commonwealth, 49 Va. App. 401, 410, 641 S.E.2d 780, 784
(2007), this Court declined to address appellant’s contention because she cited no authority for
her assertion. Likewise, we will not consider the following unsupported arguments on appeal:
[The circuit court erred in] [r]esting [ ] its subject matter
jurisdiction ruling on the JDR court’s findings on subject matter
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jurisdiction and without having heard any testimony or evidence
that could [support] its ruling.
[The circuit court] showed extensive bias against pro se Appellant,
as evidenced by automatically sustaining Arlington DHS’s and the
GAL’s objections to questions asked by pro se Appellant without
allowing her to explain why the objections should not be granted,
while, in contrast, allowing such opportunity when Arlington DHS
counsel or the GAL were asking questions.
[The circuit court erred in] [t]hreatening pro se Appellant with
contempt and jail for exercising her right to object to numerous
irregularities at the trial.
Pro se Appellant was prevented from seeing witnesses when they
testified during the hearing and the court refused to make
accommodation to allow pro se Appellant to see the witnesses
when they testified.
Appellant was denied full opportunity to make objections because
she was threatened with jail [ ] if she made objections.
3. The Merits of Grandmother’s Remaining Assignments of Error
Grandmother first alleges that the circuit court erred in failing to hear the case de novo
and showed extreme prejudice towards her and A.O. by reading as its findings of fact the
affidavit of Sherri Brothers that accompanied DHS’s petition for termination of parental rights in
the JDR court. Grandmother includes several subparts to support this assignment of error.
Grandmother argues that the circuit court erred when it “ignored evidence presented at the June
2012 de novo circuit court trial, by reading word-for-word from the September 8, 2011 Brothers
JDR Affidavit as his ‘findings of fact.’”
Grandmother attempts to analogize to Alexander v. Flowers, 51 Va. App. 404, 414, 658
S.E.2d 355, 359 (2008), where this Court reversed the circuit court for denying the mother a trial
de novo by reading the trial transcripts from the JDR court. That is not the case here, where the
circuit court found persuasive and read from an affidavit that was actually entered into evidence
and was thus properly before the court for consideration with the other evidence in the case.
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While DHS filed the affidavit in the JDR court, it also became a part of Exhibit 1 for DHS in the
case before the circuit court. The circuit court did as grandmother claims and read almost the
entire affidavit prior to announcing its ruling terminating mother’s parental rights. While
Brothers did not adopt the affidavit as her testimony when she testified, the exhibit was admitted
into evidence without objection by grandmother during the testimony of the first witness,
Tammee Gaymon.
If a litigant sits by and does not timely object to the admission of evidence, he or she
waives the objection and the fact-finder has the right and duty to “‘consider it along with all the
evidence and give it such weight as they think it is entitled to.’” Bitar v. Rahman, 272 Va. 130,
141, 630 S.E.2d 319, 325 (2006) (quoting TransiLift Equip., Ltd. v. Cunningham, 234 Va. 84,
91-92, 360 S.E.2d 183, 187-88 (1987)). When introducing Exhibit 1, DHS announced that it was
a compilation of orders from the JDR court, “up to and including the affidavits for termination.”
No party objected to this exhibit when DHS introduced it or at the conclusion of Brothers’
testimony, so the circuit court was free to consider the affidavit as evidence. Therefore, the
circuit court did not err in reading the affidavit as part of its findings of fact.
Grandmother also argues that the circuit court erred when it “allowed testimony on the
basis of evidence that was not disclosed to pro se Appellant in discovery.” There is no evidence
in the record before us that grandmother requested discovery. If grandmother desired discovery,
she “had the obligation to file an appropriate motion with the trial court, rather than waiting until
the morning of trial to object to the admission of any evidence.” Rappold v. Indiana
Lumbermens Mut. Ins. Co., 246 Va. 10, 14, 431 S.E.2d 302, 305 (1993). While the circuit court
issued a protective order governing discovery material in the termination of parental rights case,
there is no evidence that grandmother applied for a modification of the protective order for good
cause, as provided in paragraph 10 of the order. Instead, she stated on brief that it was
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impossible for her to do her own discovery because the petition for custody case was
consolidated with the termination of parental rights case only twelve days before the hearing
began. Considering that she did not request discovery, this argument that evidence was not
disclosed to her in discovery is without merit.
Grandmother next alleges several sub-assignments of error to support her broad
assertions that the circuit court “denied the right to a fair trial, and violated due process rights, as
provided for by the Court’s rules, guaranteed by the US Constitution, and showed extreme
prejudice.” Grandmother argues that
[b]ecause of the premature consolidation of the [petition for
custody] case with the already ongoing [termination of parental
rights] cases, [p]ro [s]e Appellant was denied the opportunity to do
discovery and call her own witnesses in the [petition for custody]
[c]ase, and was prohibited from fully reviewing and making copies
of discovery used by the other parties in the [termination of
parental rights] case.
Grandmother filed her petition for custody in the JDR court on March 14, 2012. On
April 5, 2012, the JDR court dismissed her petition and included in the order, “This case should
be heard in Circuit Court with the termination of parental rights case.” Grandmother filed her
notice of appeal in the circuit court on the same day. On June 8, the circuit court consolidated
the custody case with the termination of parental rights case, set to be heard on June 20.
There is no evidence that grandmother attempted to subpoena any witnesses who were
not able to attend the hearing because the date was set for June 20. The record is silent as to
what evidence grandmother expected to obtain in discovery, and there is no evidence that she
even requested discovery from DHS. She did not file a motion to modify the protective order on
discovery material in the termination of parental rights case related to her custody case, and she
did not ask the circuit court to allow expedited discovery under Rule 4:9(b)(ii) (“The court may
allow a shorter or longer time.”). Thus, grandmother fails to demonstrate how the decision to
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consolidate the cases for hearing on June 20, 2012 actually prejudiced her case. Absent a
showing of prejudice, we find no abuse in the circuit court’s discretion to consolidate the cases.
See Tazewell Oil Co. v. United Virginia Bank/Crestar Bank, 243 Va. 94, 112, 413 S.E.2d 611,
621 (1992) (finding no abuse in the court’s discretion to deny discovery absent a showing of
prejudice).
Grandmother next argues that the circuit court erred when it “[a]llowed introduction of
documents that were hidden from pro se Appellant and without giving her an opportunity to
review and object to them.” The only document grandmother complains of in the record is
Exhibit 1 for DHS, discussed supra. Although grandmother claims that she “promptly objected
to the introduction of Exhibit 1,” the record actually reflects that grandmother did not object to
the admission of Exhibit 1 when DHS introduced it. She only objected when the circuit court
read from the termination of parental rights affidavit just prior to announcing its decision after
five days of hearing evidence and argument. Grandmother did not ask to see the exhibit until the
court began to read the affidavit. Upon her objection, her counsel for the termination of parental
rights matter immediately shared the affidavit with grandmother. Before the court even finished
reading the affidavit, grandmother interrupted and offered her rebuttal to the affidavit, which she
had prepared and filed when the affidavit was submitted to the JDR court in December 2011.
Grandmother’s “rebuttal” is an eighteen-page document addressing each point made in the
affidavit. Thus, in addition to her objection not being timely, grandmother clearly had actually
seen the document she objected to on the basis that it was hidden from her.
Grandmother’s claim that she did not know Exhibit 1 contained the affidavit is incredible
because upon introducing Exhibit 1, counsel for DHS proffered without contradiction that it was
“a compilation of orders from the Juvenile Court, all of the relevant orders for the proceedings
that led to the termination, up to and including the affidavits for termination. And I have marked
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that as County Exhibit Number 1.” Grandmother had the opportunity to object or ask to view the
exhibit when the court asked, “Any objection?” To which grandmother did not respond. The
circuit court therefore did not err in admitting County Exhibit 1.
Finally, grandmother asserts several sub-assignments of error in support of her argument
that the “[circuit court] erred in denying [pro se] Appellant’s Petition for Custody of [A.O.]”
Grandmother argues that the circuit court “failed to find the necessary facts to support
that pro se Appellant was unqualified to have custody of [A.O.] based on the standards in the
statute and rules of the Commonwealth applied to the facts presented by witnesses at trial.”
On review “a trial court is presumed to have thoroughly weighed
all the evidence, considered the statutory requirements, and made
its determination on the child’s best interests.” [Farley, 9
Va. App. at 329, 387 S.E.2d at 796]. Furthermore, the evidence is
viewed in the light most favorable to the prevailing party below
and its evidence is afforded all reasonable inferences fairly
deducible therefrom. . . . The trial court’s judgment, “when based
on evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.” [Peple, 5
Va. App. at 422, 364 S.E.2d at 237].
Logan, 13 Va. App. at 128, 409 S.E.2d at 463 (emphasis added). When the circuit court acts as
the fact-finder, it has the responsibility of weighing the credibility of the witness and determining
the weight to be given to her testimony. Anderson v. Commonwealth, 282 Va. 457, 464, 717
S.E.2d 623, 626 (2011). In order to transfer custody of a child to a relative, Code
§ 16.1-283(A1) requires a court to find, based on a preponderance of the evidence, that the
relative is qualified to receive and care for the child and is committed to providing a permanent,
suitable home for the child, among other things.
The circuit court properly denied grandmother’s custody petition for the same reasons
that it approved the goal of adoption. As discussed supra, grandmother failed to comply with the
services required for reunification, all of which were aimed at improving her care of A.O. In the
past grandmother had not provided a stable home for A.O., by moving frequently and being
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homeless at times. She also had not ensured consistent schooling for A.O. The record also
indicates that A.O.’s behavior deteriorated with grandmother’s influence.
The circuit court clearly found that grandmother had no credibility:
This Court has listened to the testimony of [grandmother] very
carefully . . . . This Court has seen her to be [ ] aggressive, hostile,
angry, indignant at times, and out of control. She appears to be
unstable and out of touch with reality at times. She seems to be
more concerned with fighting DHS than what is in the best interest
of this child.
Thus, the circuit court did not believe grandmother’s assertions of her ability to care for A.O.
This Court is bound by the credibility findings of the circuit court. Denise v. Tencer, 46
Va. App. 372, 397, 617 S.E.2d 413, 426 (2005). Evidence in the record supports the circuit
court’s decision to deny grandmother’s petition for custody, and we will not disturb the ruling on
appeal.
CONCLUSION
For the foregoing reasons, we affirm the judgments of the circuit court in each of these
appeals.
Record No. 1519-12-4, affirmed.
Record No. 1471-12-4, affirmed.
Record No. 1520-12-4, affirmed.
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