Shawn Bradley Holley v. Amherst Dept of Soc Service ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
SHAWN BRADLEY HOLLEY
MEMORANDUM OPINION *
v. Record No. 3397-02-3 PER CURIAM
JUNE 10, 2003
AMHERST COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
(P. Scott De Bruin; De Bruin & Layne, P.C.,
on brief), for appellant.
(J. Thompson Shrader; Jennifer R. Tuggle;
J. Thompson Shrader & Associates, P.C., on
brief), for appellee.
(Wanda Phillips Yoder, on brief), Guardian
ad litem for Wilson Andrew Holley.
Shawn Bradley Holley (father) appeals a decision of the
trial court terminating his parental rights to his son Wilson,
pursuant to Code § 16.1-283(B) and (C). On appeal, father
contends the trial court erred by (1) admitting into evidence
two reports of a court-appointed special advocate (CASA), and
(2) finding the Amherst Department of Social Services (Amherst
DSS) had provided him with adequate services. We find this
appeal to be without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
We view the evidence in the light most favorable to the
prevailing party below and grant to it all reasonable inferences
fairly deducible therefrom. See Logan v. Fairfax County Dep't
of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
So viewed, the evidence established Wilson was born on November
21, 1997 and has never been in father's custody. Wilson
remained with his mother, Penny L. Stanley (mother) until he was
placed in the care of the Lynchburg Department of Social
Services (Lynchburg DSS).
In June 1999, Lynchburg DSS received a child neglect
complaint that Wilson had been seen trying to cross a busy city
street after he had been left unattended by mother. Lynchburg
DSS received additional complaints, and the Lynchburg Juvenile
and Domestic Relations District Court awarded Wilson's paternal
grandmother, Diane Holley, custody on August 23, 1999.
On October 18, 2000, Diane Holley approached Amherst DSS
seeking to place Wilson with it. She explained she could no
longer care for Wilson because of interference from mother.
Rick Groff, a senior social worker, testified that at
approximately the same time he had received a complaint of
neglect. The complaint came from the police department. The
police had been summoned to Diane Holley's residence. When they
arrived, the officers discovered father unconscious in the front
yard and Wilson wandering, unattended, in the road. Father was
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later convicted of child neglect based upon the incident. Diane
Holley signed an entrustment agreement with Amherst DSS, and
Wilson was placed with his half-siblings (mother's other
children) in the foster care of the Smith family.
On December 21, 2001, Amherst DSS petitioned the court to
terminate father's residual parental rights. Between the time
of Wilson's foster care placement and the date of the
termination petition, father was either incarcerated or in a
state hospital for all but an eight-week period. During the
eight weeks father was not detained, he was provided supervised
visitation with Wilson.
Groff testified he met with father on November 1, 2001, to
discuss the requirements for Wilson's return from foster care.
Groff referred father to parenting classes, "children in the
middle" classes, and counseling. Father made initial contact to
receive class schedules but was again incarcerated before
beginning any classes or counseling. Father attended his
scheduled visits with Wilson for a six-week period before his
incarceration.
Father admitted he suffered from mental health problems and
alcohol addiction. He was institutionalized at Western State
Hospital for depression. Father admitted he was convicted of
child neglect following the incident at his mother's house. He
had also been twice charged with assaulting his mother, which
resulted in one conviction. Appellant had also been convicted
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on numerous charges of public drunkenness. At the time of the
circuit court hearing, father was incarcerated awaiting trial on
charges of hit and run, driving while intoxicated, and driving
after having been declared an habitual offender. Father
asserted if he gained custody of Wilson he would arrange for the
boy to live with his grandmother in Danville, Virginia.
ANALYSIS
CASA REPORTS
At trial, Amherst DSS sought to introduce two CASA reports
and their attachments. The CASA advocate who prepared the
reports was out of the country and unable to testify at trial.
Melanie Wright, a CASA advocate manager, testified the reports
were prepared by case worker Jill Fernandez. Father objected to
the admission of the reports, arguing they contained
inadmissible hearsay and that their admission violated his due
process rights by depriving him of the opportunity to
cross-examine a witness against him.
Hearsay
Father concedes Code § 9.1-153 allows the court to admit as
evidence CASA reports. He also correctly notes that the CASA
advocate who prepared the report "may testify if called as a
witness." Code § 9.1-153. He argues the statute "violates
. . . the hearsay rule . . . ."
"While in the construction of statutes the
constant endeavor of the courts is to
ascertain and give effect to the intention
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of the legislature, that intention must be
gathered from the words used, unless a
literal construction would involve a
manifest absurdity. Where the legislature
has used words of a plain and definite
import the courts cannot put upon them a
construction which amounts to holding the
legislature did not mean what it has
actually expressed."
Barr v. Town & Country Properties, 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172
S.E. 445, 447 (1934)).
Code § 9.1-153 requires the CASA advocate to "[s]ubmit to
the court [] a written report of his investigation in compliance
with the provisions of § 16.1-274. The report . . . may include
recommendations as to the child's welfare." Code § 16.1-274
directs the advocate to "file such report with the clerk of the
court directing the investigation." The CASA reports were
properly prepared and filed, and the trial court did not err by
admitting the reports and their attachments pursuant to Code
§ 9.1-153.
Due Process
Appellant contends the admission of the CASA reports under
Code § 9.1-153 violated his due process rights by depriving him
of an opportunity to confront the witnesses against him.
When a state infringes upon a parent's
constitutional right to the companionship of
his or her child in order to protect the
child from abuse and neglect, it must
satisfy the mandates of procedural due
process. Therefore, if the state seeks to
sever the parent-child relationship, the
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state is required to provide the parent with
"fundamentally fair" procedures in the
termination proceeding.
Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 829,
433 S.E.2d 500, 505 (1993) (citations omitted). In this case,
appellant was provided an extensive two-day hearing, was
provided the opportunity to cross-examine witnesses against him,
including a CASA representative, and his parental rights were
terminated only after the trial court concluded the petition was
supported by clear and convincing evidence. Father "was
afforded the process that []he was due in protecting h[is]
liberty interest in enjoying the companionship of h[is] child.
Nothing in the Constitution guarantees continuation of the
parent-child relationship once fundamentally fair procedures
have been followed to prove parental unfitness." Id. at 830,
433 S.E.2d at 505.
SUFFICIENCY
Father argues the evidence was insufficient to support the
trial court's conclusion that Amherst DSS provided him all
reasonable and appropriate services as required by Code
§ 16.1-283.
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
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determine what constitutes reasonable and
appropriate efforts given the facts before
the court.
Ferguson v. Stafford Dep't of Social Services, 14 Va. App. 333,
338, 417 S.E.2d 1, 4 (1992).
The record reveals father has been incarcerated or
hospitalized for mental illness for most of Wilson's life.
During a brief period when he was not detained, he allowed
Wilson to wander in the roadway near railroad tracks as he lay
unconscious and intoxicated in his mother's yard. Father was
convicted of child neglect. Despite being advised to complete
parenting classes and substance abuse classes, father did not
even start the courses before again being incarcerated. His
continued incarceration prevented Amherst DSS from providing
father with more extensive services.
[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights or negate the Department's obligation
to provide services, it is a valid and
proper circumstance which, when combined
with other evidence concerning the
parent/child relationship, can support a
court's finding by clear and convincing
evidence that the best interests of the
child will be served by termination.
Id. at 340, 417 S.E.2d at 5.
We conclude that this record contains sufficient evidence
that the trial court did not err in terminating father's
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parental rights. Accordingly, we summarily affirm the decision
of the trial court. See Rule 5A:27.
Affirmed.
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