Teresa Grimes Guynn and Steven D. Guynn v. Pulaski County Department of Social Services ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Argued at Salem, Virginia
TERESA GRIMES GUYNN AND
STEVEN D. GUYNN
MEMORANDUM OPINION * BY
v. Record No. 1370-10-3 JUDGE ROBERT J. HUMPHREYS
DECEMBER 28, 2010
PULASKI COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge1
Terri Morrison Bowles (Debra K. Sifford; Bowles Law Office, on
brief), for appellants.
Clifford L. Harrison (Michael J. Sobey, Guardian ad litem for the
infant children; Harrison & Turk, on brief), for appellee.
Teresa Grimes Guynn (“mother”) and Steven D. Guynn (“father”) appeal the termination
of their parental rights in and to their twin daughters C.G. and V.G., born August 27, 2007.
Mother and father specifically allege the circuit court erred in (1) finding the Pulaski County
Department of Social Services (“the Department”) made reasonable and appropriate efforts to
assist mother in remedying the situation that led to the placement of the children in foster care,
(2) finding that father, without good cause, has been unwilling or unable to substantially remedy
the conditions which led to or required the placement of the children in foster care, (3) finding
the children were in fact neglected or abused and that the abuse or neglect presented a serious
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Retired Judge J. Colin Campbell signed the statement of facts attesting to the “accurate
and complete memorialization of the testimony and incidents of trial.”
and substantial threat to the children’s lives, health or development, (4) finding that the
conditions which resulted in such neglect or abuse could not be substantially corrected or
eliminated so as to allow the children’s safe return to the parents within a reasonable period of
time, and (5) dismissing mother’s and father’s petitions for custody and visitation. Finding no
error in the circuit court’s decision, we affirm.
I. Analysis
“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 County Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463
(1991). On appeal, we presume the trial court “‘thoroughly weighed all the evidence, considered
the statutory requirements, and made its determination based on the child’s best interests.’” Id.
(quoting Farley v. Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990)). “For purposes of
appellate review, a trial court’s determination is considered to have settled all conflicts in the
evidence in favor of the prevailing party, and the prevailing party’s evidence is entitled to all
reasonable inferences fairly deducible therefrom.” Farley, 9 Va. App. at 328, 387 S.E.2d at 795.
“A trial court’s determination of matters within its discretion is reversible on appeal only for an
abuse of that discretion . . . and a trial court’s decision will not be set aside unless plainly wrong
or without evidence to support it.” Id. (citations omitted).
A. The Department’s alleged failure to provide reasonable and appropriate services to mother
Mother first contends the circuit court erred in finding the Department made reasonable
and appropriate efforts under Code § 16.1-283(C)(2) 2 to help her remedy the situation leading to
2
Code § 16.1-283(C)(2) provides in pertinent part:
The residual parental rights of a parent or parents of a child placed
in foster care as a result of court commitment . . . may be
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the children’s placement in foster care. Specifically, mother complains that because she “was
not allowed to ask the Department about the results” of her psychological evaluation or “how the
results related to the services [the Department] offered to the mother,” there was “not sufficient
evidence before the court to know whether or not the Department made reasonable and
appropriate efforts to help mother with services to meet the goal of return home.” Mother’s
argument is without merit.
In accordance with Code § 16.1-283(C)(2), the circuit court may terminate the residual
parental rights of a parent whose child has been placed in foster care if the parent, without good
cause, has been unwilling within a reasonable period of time to remedy the circumstances that
led to the placement of the child in foster care. As mother correctly notes, “the statutory
language contained in Code § 16.1-283(C)[(2)] requires ‘reasonable and appropriate’ efforts to
be made to provide services” to the parent before termination of parental rights can occur.
terminated if the court finds, based upon clear and convincing
evidence, that it is in the best interests of the child and that:
* * * * * * *
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. Proof that the parent or
parents, without good cause, have failed or been unable to make
substantial progress towards elimination of the conditions which
led to or required continuation of the child’s foster care placement
in accordance with their obligations under and within the time
limits or goals set forth in a foster care plan filed with the court . . .
shall constitute prima facie evidence of this condition. The court
shall take into consideration the prior efforts of such agencies to
rehabilitate the parent or parents prior to the placement of the child
in foster care.
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Ferguson v. Stafford County Dep’t of Social Services, 14 Va. App. 333, 338, 417 S.E.2d 1, 9
(1992). However, “‘[r]easonable and appropriate’ efforts can only be judged with reference to
the circumstances of a particular case.” Id. Thus, whether or not the Department’s efforts
constitute “reasonable and appropriate efforts” depends largely upon the very specific factual
scenario before the court. Id. at 338, 417 S.E.2d at 10.
In mother’s case, the Department provided various and extensive services to assist
mother in remedying the situation leading to the children’s placement in foster care. Indeed, the
Department referred Susan Lindsey, an expert in early childhood development, to the family
shortly after the children’s premature birth, in order to assist with the children’s development and
to help correct their “failure to thrive.” From December 10, 2007 to April 16, 2008, and again
from September to October of 2008, mother received help from the Infant and Toddler
Connection, Medicaid, CHIP and early intervention, and case management. Mother also
received food stamps. After the children’s placement in foster care in October of 2008, the
Department provided mother with parenting classes, bi-weekly visitation with the children,
housing assistance, attendance at Family Assessment and Planning Team meetings (“FAPT”),
and counseling.
Nevertheless, mother contends the Department failed to provide her with the
“specialized” services she requires to understand the needs of her children or to help with their
therapy. Mother notes that, according to her psychological evaluation, her “fund of information
is limited,” she is “unable to recognize deficits or areas of needed improvement,” and she “lacks
insight” into the “gravity of the circumstances that have led to the necessity of social services
intervention.” The evaluator concluded, “given her cognitive/intellectual functioning, supportive
and directive assistance in developing and maintaining a reasonable parenting plan and sanitary
environment in the home are liable to yield the greatest immediate benefits.” Such was the goal
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behind many of the services offered; mother simply failed to comply with those services.
Moreover, the record indicates that mother understood the requirements of the foster care plan.
In fact, although mother was low functioning, she was aware the children were diagnosed
with a failure to thrive and she, thus, took the children to all of their medical appointments. The
children were up to date on their shots at the time of their removal from mother’s home.
Mother’s compliance with CHIP was minimal at first, but then she became more cooperative.
Mother never attended any FAPT meetings, but she did eventually attend parenting meetings.
Additionally, mother’s suggestion that she is incapable of understanding the importance of
keeping her house clean is belied by the fact that she cleaned up the house after each of the
Department’s visits and by her testimony that she now keeps a clean house. Mother also
apparently understands that she is required to maintain suitable housing, as evinced by her
testimony that she currently has a nice apartment, all the utilities are turned on, and she has
plenty of groceries. Finally, mother submitted to her psychological evaluation, as required.
And yet, although mother was aware of the children’s considerable needs, she repeatedly
failed to appear for the children’s visits with Lindsey, where she would have learned how to help
with the children’s therapy. The only reason given for her failure to attend these sessions was
that mother did not like Lindsey. Contrary to her assertion, the record fails to show that mother
did not understand or realize the importance of attending Lindsey’s sessions with the children.
Rather, the circuit court adopted Lindsey’s opinion and found that mother’s inability with the
children resulted more from her lack of interest and failure to pay attention than from her mental
deficiency.
We conclude on these facts that the circuit court did not err in finding mother failed to
show she was “unable to learn or to be taught” how to remedy the circumstances that led to the
children’s placement in foster care. Rather, mother exhibited a mere unwillingness or inability to
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comply with the Department’s efforts, or to remedy substantially the conditions that led to the
children’s placement in foster care. Moreover, mother’s assertion that the Department was
required to provide “specialized” services in response to her psychological evaluation is not
supported by the record, especially in light of the fact that mother failed to call the evaluator as
an expert witness at trial. The circuit court found the Department provided reasonable and
appropriate services to mother in its effort to meet its goal of returning the children home. The
record supports that finding. We will, thus, affirm the circuit court on this issue.
B. The Department’s failure to consider father’s mental low functioning as being “good cause”
for his inability to remedy the conditions that led to the removal of the children, and its failure to
provide reasonable and appropriate services to address the conditions that led to the children’s
placement in foster care
Father contends on appeal that the Department erred in finding he failed to remedy the
conditions that led to the placement of the children in foster care “without good cause.” Father
contends his mental low functioning may have precluded him from complying with the services
provided by the Department, and he argues the Department did not provide the necessary
services to evaluate whether father could reasonably be expected to undertake the responsibility
for the care needed by his special needs children. Essentially, like mother, father contends the
evidence failed to show that the Department provided him with reasonable and appropriate
services.
In deciding whether to terminate the rights of a parent to his child, “‘the best interests of
the child must be the primary concern of the court.’” Richmond Dep’t of Soc. Servs. v. L.P., 35
Va. App. 573, 584, 546 S.E.2d 749, 754 (2001) (quoting Stanley v. Fairfax County Dep’t of Soc.
Servs., 242 Va. 60, 63, 405 S.E.2d 621, 623 (1991)). “The purpose of Code § 16.1-283(C)(2) is
to ensure, if possible, that the best interests of the child are achieved by ‘protecting the family
unit and attendant rights of both parents and child, while assuring resolution of the parent-child
relationship without interminable delay.’” Id. (quoting Lecky v. Reed, 20 Va. App. 306, 312,
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456 S.E.2d 538, 540 (1995)). “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
responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990).
Father argues that the services offered by the Department failed to address father’s
mental deficiency. Father alleges, “the first time the Department acknowledged father was low
functioning was at trial.” Father reasons that because the Department failed to tailor his services
to his specific mental deficit, the Department failed to affirmatively show he was unable
“without good cause” to remedy the conditions leading to the children’s placement in foster care.
However, though Susan Lindsey could not answer what if anything she did to ensure father
understood her instructions,” and though Department social worker Melodie DeCosta
acknowledged father may not have understood Lindsey’s instructions, the fact remains that father
failed to complete his required psychological evaluation, even though the Department scheduled
the evaluation three separate times. The Department’s alleged failure in addressing father’s
mental low functioning, thus, resulted from father’s unwillingness to cooperate with the
department, rather than from the Department’s failure to provide appropriate services.
Moreover, father concedes he understood many of Susan Lindsey’s instructions and, like mother,
father complied with many of the services offered by the Department. It, thus, appears that
father’s failure to comply with all of the requirements of the foster care plan did not result from
his mental deficiency, as he contends, but rather from his unwillingness to remedy the situation
that led to the children’s placement in foster care.
Because the circuit court’s finding that father was unwilling, without good cause, to
remedy the circumstances that led to placement of the children in foster care notwithstanding
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reasonable and appropriate efforts on the part of the Department is not plainly wrong, we will
affirm the circuit court on this issue.3
C. The finding of physical and medical neglect
Mother and father allege the circuit court erred in finding the children were neglected or
abused and that such neglect or abuse presented a serious and substantial threat to the children’s
lives, health or development. Mother and father maintain that the problems experienced by the
children resulted from the fact that they were born prematurely, rather than by any act or
omission on their part. The Department responds that this issue is barred by principles of res
judicata, since the question of whether or not the twins were abused or neglected was tried at the
original adjudicatory hearing, and the court’s finding as to the abuse or neglect was not appealed.
We agree with the Department.
Code § 16.1-253(A) provides in pertinent part that “[u]pon the motion of any person or
upon the court’s own motion, the court may issue a preliminary protective order, after a hearing,
if necessary to protect a child’s life, health, safety or normal development pending the final
determination of any matter before the court.” Code § 16.1-278.2(A) provides that “[w]ithin
seventy-five days of a preliminary protective order held pursuant to . . . a hearing on a
3
The Department argues that the question of whether the services offered by the
Department to both mother and father were reasonable is a matter that is barred on appeal by
principles of res judicata. The Department maintains that the inquiry into the reasonableness of
services offered by the Department is a matter that should be addressed by competent counsel at
the foster care plan hearings “and not collaterally attacked at the termination.” Essentially, the
Department would have us hold that by definition, the services offered by the Department are
reasonable because they were ordered by the court, and unless the reasonableness of those
services is appealed at the foster care level, it is a final finding as to the reasonableness of the
services. Because mother and father did not appeal the reasonableness of the services at the
foster care level, the Department urges that this Court find the first two assignments of error in
this appeal are not reviewable. We decline to do so. Contrary to the Department’s assertions,
the question of whether or not the Department offered reasonable services is not merely a matter
for the foster care hearing. The statutory scheme expressly requires the circuit court to find,
before terminating parental rights, that the Department offered reasonable services to the parent.
See Code § 16.1-283(C)(2).
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preliminary protective order held pursuant to § 16.1-253, a dispositional hearing shall be held if
the court found abuse or neglect and (i) removed the child from his home or (ii) entered a
preliminary protective order.” As the Department correctly notes, Code § 16.1-278.2(D)
provides that “[a] dispositional order entered pursuant to this section is a final order from which
an appeal may be taken in accordance with § 16.1-296.”
In the instant case, the children were removed from the home by preliminary protective
order on October 7, 2008 and placed in foster care on October 8, 2008. According to the
Department, the court held a dispositional hearing pursuant to Code § 16.1-253 resulting in a
finding of abuse or neglect. That finding was not appealed. The question of whether or not the
children were abused or neglected is, therefore, final for purposes of the instant appeal.
Mother and father also assign error to the circuit court’s finding that the neglect or abuse
suffered by the children “presented a serious and substantial threat to [their] life, health or
development,” in accordance with Code § 16.1-283(B)(1). 4 Mother and father argue that any
threat to the children’s lives resulted directly from the children’s premature birth, rather than
from any abuse or neglect. We disagree. Susan Lindsey testified that left in the care of mother
and father, the children developed cradle cap and their clothes were stained with vomit and filth.
4
Code § 16.1-283(B)(1) provides:
The residual parental rights of a parent or parents of a child found
by the court to be neglected or abused and placed in foster care as a
result of (i) court commitment; (ii) an entrustment agreement
entered into by the parent or parents; or (iii) other voluntary
relinquishment by the parent or parents may be terminated if the
court finds, based upon clear and convincing evidence, that it is in
the best interests of the child and that:
* * * * * * *
The neglect or abuse suffered by such child presented a serious and
substantial threat to his life, health or development[.]
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She stated they could not get the exercise they needed in order to develop properly because there
was no place on the floor for them to play and stretch. Both children had severe difficulty in
chewing their food and they, thus, lost weight in mother’s care; yet, mother and father refused to
attend half of the children’s visits with Lindsey, where they could learn how to help feed and
nurture them. Neither parent exhibited any interest in learning how to assist or care for the
children. In fact, mother and father cancelled all visits with the children in February of 2009,
and they refused to resume visitation in April of 2009, because they did not have the skills or the
finances to deal with these special needs children. Although both children made great strides
while in foster care, they were both still developmentally delayed and in need of constant care at
the time of the hearing.
On this evidence, the circuit court found these parents are low functioning adults who
lack the interest and ability to take care of these children with special needs and they lack the
skills and the ability to develop the skills to care for them. The circuit court noted the parents
would require constant monitoring. The guardian ad litem agreed that to allow mother and father
to parent the twins would require “someone looking over their shoulder forever,” and opined that
to return these children to mother and father would be “disastrous.” The court’s findings are
supported by the record and not plainly wrong. We, therefore, affirm.
D. The parents’ failure to remedy the conditions leading to foster care within a reasonable
period of time
Mother and father allege the circuit court erred in finding the Department gave them
enough time to remedy the conditions that led to the placement of the children in foster care.
The circuit court terminated mother’s and father’s residual parental rights under both
Code § 16.1-283(B)(1), (2) and Code § 16.1-283(C)(2). Code § 16.1-283(B) provides that the
court may terminate parental rights in cases where “it is not reasonably likely that the conditions
which resulted in” the child’s placement in foster care “can be substantially corrected or
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eliminated so as to allow the child’s safe return to his parent or parents within a reasonable
period of time.” Although Code § 16.1-283(B) does not elaborate on what is meant by a
“reasonable period of time,” Code § 16.1-283(B)(2)(c) suggests that a parent’s failure to follow
through with “appropriate, available and reasonable rehabilitative efforts” on the part of the
department “shall constitute prima facie evidence” that such conditions cannot be corrected
within a reasonable period of time. Code § 16.1-283(C)(2) suggests that the Department need
only give a parent up to twelve months to remedy the conditions that led to the placement of a
child in foster care. Again, “[i]t 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
responsibilities.” Kaywood, 10 Va. App. at 540, 394 S.E.2d at 495.
In this case, the Department worked with the parents from 2007 to 2009. During that
time, the Department provided Infant and Toddler assistance, food stamps, CHIP, Medicaid, case
management, attendance at FAPT meetings, parenting classes, psychological evaluations, and
counseling. Notwithstanding the Department’s efforts, mother and father repeatedly failed to
appear for Susan Lindsey’s development sessions with the children, they failed to sustain regular
and adequate housing, they failed to keep the house clean, they exercised sporadic visitation, and
they refused to visit with the twins any longer after February 24, 2009. When the Department
encouraged mother and father to resume visitation in April 2009, mother and father refused. In
March of 2009, mother and father expressly asked to execute a permanent entrustment agreement
so their friends, the Chafins, could adopt the children. By the time of the termination hearing,
the Department had been working with mother and father, to no avail, for more than two years.
Given this factual scenario, the circuit court was not plainly wrong in finding that mother
and father were unwilling within a reasonable period of time to remedy the circumstances that
led to the placement of the children in foster care. It is simply of no moment, under the facts
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presented in this case, that the children were not actually placed in foster care until October of
2008. The Department was working with this family as of late December 2007. Code
§ 16.1-283(C)(2) expressly provides that “the court shall take into consideration the prior efforts
of [the Department] to rehabilitate the parent or parents prior to the placement of the child in
foster care.” Nor is our analysis altered by the fact that mother and father obtained suitable
housing by the time of the hearing in January of 2010. The Department had moved for a change
of goal to adoption long before then. In short, mother and father were given a reasonable period
of time to correct the situation; they were simply unwilling to do so. We, thus, affirm the circuit
court on this issue.
E. The trial court’s dismissal of mother’s and father’s custody and visitation petitions
Lastly, mother and father contend the circuit court erred in dismissing the custody and
visitation petitions they filed in response to the Department’s petition for termination of their
residual parental rights. However, because mother and father failed to preserve this issue for
appeal, we do not consider it.
When the Department made the decision to file for termination of parental rights, mother
and father apparently filed a motion to amend to ask the court to award them custody and/or
visitation with the children. Mother and father allege that “based on the testimony of the parties,
the court should have concluded it was proper to resume visitation and consider the return of
custody at a later date.” However, mother and father did not assign error to the circuit court’s
dismissal of their petitions in the court below. The termination orders, upon which their
objections to the court’s rulings appear, do not mention these petitions for custody, and the
statement of facts in this case does not indicate that mother and father expressed any objection to
the court’s dismissal of them. Moreover, mother and father do not develop their argument or
otherwise support their assertion with any legal authority on brief. This issue is, therefore, not
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properly preserved for appeal, and we will not consider it. See Rule 5A:20(e) (“The opening
brief of appellant shall contain . . . [t]he standard of review and the argument (including
principles of law and authorities) relating to each assignment of error.”); see also Doering v.
Doering, 54 Va. App. 162, 171 n.3, 676 S.E.2d 353, 357 n.3 (2009) (“Unsupported assertions of
error do not merit appellate consideration.”). 5
II. Conclusion
For the foregoing reasons, we conclude the circuit court did not err in terminating the
residual parental rights of both of these parents. We, thus, affirm.
Affirmed.
5
The Department “affirmatively wishes to raise” the question of whether or not the
juvenile and domestic relations district courts of this Commonwealth lack jurisdiction to consider
custody petitions such as the ones filed by mother and father in this case. Because we find that
any error pertaining to the dismissal of the custody petitions is not properly preserved, we
decline the Department’s invitation to address the “proper procedure” for conferring jurisdiction
on such courts in similar cases. “[C]ourts are not constituted . . . to render advisory opinions, to
decide moot questions or to answer inquiries which are merely speculative.” Commonwealth v.
Harley, 256 Va. 216, 219-20, 504 S.E.2d 852, 854 (1998) (citations omitted).
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