Robert B. Green, Sr. v. Richmond Dept. Soc. Servs. ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
ROBERT B. GREEN, SR.
MEMORANDUM OPINION ∗
v. Record No. 1694-01-2 PER CURIAM
JANUARY 8, 2002
RICHMOND DEPARTMENT OF SOCIAL SERVICES
AND PHYLLIS GREEN
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Judge
(Robert W. Carll, on brief), for appellant.
(Kate D. O'Leary, Assistant City Attorney;
Louise Adamson; James Cooke, Guardian
ad litem for the Infant Child, on brief),
for appellees.
Robert B. Green, Sr. (father) appeals the decision of the
circuit court approving the foster care service plan and
transferring custody to mother. On appeal, he contends the trial
court failed to make a finding that the plan was in the child's
best interests. Upon reviewing the record and briefs of the
parties, we conclude that this appeal is 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
On appeal, we view the evidence and all the reasonable
inferences in the light most favorable to appellee as the party
prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,
391 S.E.2d 344, 346 (1990). So viewed, the evidence showed that
Phyllis Green (mother) filed a petition on August 22, 2000,
pursuant to Code § 16.1-278.5, asking the juvenile and domestic
relations district court (juvenile court) to evaluate and
determine that her daughter, Latoya, is a child in need of
supervision. Mother advised that Latoya, then thirteen years old,
had a habit of leaving home without consent or reasonable cause
and staying away for long periods of time. Mother described in
her affidavit how, on August 21, 2000, around 8:00 p.m., while she
and Latoya visited Byrd Park, Latoya asked to use the restroom and
never returned.
On October 17, 2000, the juvenile court conducted a hearing
on mother's petition. It sustained the petition, referred Latoya
for evaluation and services, and awarded custody to the Richmond
Department of Social Services (RDSS).
On December 13, 2000, RDSS prepared a foster care service
plan for Latoya. The plan's goal was to return Latoya home, and
the target date for achieving that goal was July 31, 2001.
On April 25, 2001, the trial court conducted a hearing to
determine whether to approve the foster care service plan and
return Latoya to mother. Shannon Krone, the RDSS social worker
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who prepared the foster care plan, testified that Latoya came into
RDSS custody on October 17, 2000, after her third incident of
running away. Ten days later, on October 27, 2000, Latoya ran
away from RDSS custody after leaving to go to school. Mother
contacted RDSS in December 2000, and told them she had found
Latoya. RDSS allowed Latoya to stay with mother because "Latoya
was willing to stay there and not run away." Krone felt that
returning Latoya to mother was an appropriate goal because RDSS
obtained custody of Latoya through a CHINS 1 petition rather than
because of any abuse or neglect by mother.
In a December 15, 2000 social history, Krone noted that
Latoya "is unable to resolve conflict and . . . runs away to avoid
problems." Latoya indicated to Krone that she had several friends
with whom she would stay when she ran away. Latoya told Krone she
ran away from mother because mother derided and criticized her for
her sexual behavior. She told Krone she ran away from RDSS
custody because she did not want to be placed in a foster home.
Mother is a Master Sergeant with the United States Army. She
is able to provide housing and support for Latoya. Mother
indicated a strong desire to regain custody of Latoya and a
willingness to seek and participate in any services suggested by
RDSS. She described her relationship with Latoya as positive and
1
"CHINS" is an acronym that stands for child in need of
supervision or child in need of services. See S.G. v. Prince
William County Dep't Soc. Servs., 25 Va. App. 356, 359 n.3, 488
S.E.2d 653, 655 n.3 (1997).
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loving. Mother did not know why Latoya began running away or why
she continued to do so. According to mother, Latoya has been
unable to give any specific reasons for her actions.
Father objected to mother regaining custody of Latoya.
Father has been incarcerated since 1995, after being convicted of
abducting and sexually assaulting mother. He contends mother is
not taking proper care of Latoya as evidenced by her running away
and having problems. Father expressed hopes that his mother or an
aunt, both of whom live in Maryland, would gain custody of Latoya;
however, he conceded that neither has filed a custody petition.
At the conclusion of the April 25, 2001 hearing, the trial
court found that mother had acted appropriately in caring for
Latoya, and it approved the foster care plan recommending return
home. By order dated June 22, 2001, the trial court approved the
foster care plan and transferred custody to mother.
ANALYSIS
On appeal, appellant contends the trial court approved the
foster care plan "without making a finding, supported by the
evidence, that it was in the child's best interest." In the trial
court's June 22, 2001 dispositional order, father's only objection
was "that the evidence presented was not sufficient for a finding
that it was in the child's best interest to transfer custody to
the mother." Therefore, on appeal, we limit our analysis to the
argument made before the trial court, namely, whether there was
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sufficient evidence that return home was in Latoya's best
interest.
The standard of proof in a proceeding approving or modifying
a foster care service plan is proof by a preponderance of the
evidence. See Richmond Dep't of Soc. Servs. v. Carter, 28 Va.
App. 494, 496-97, 507 S.E.2d 87, 88 (1998) (citing Padilla v.
Norfolk Div. of Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d 648,
649 (1996)). But see Code § 16.1-283(B) (requiring clear and
convincing evidence to terminate a parent's residual rights).
Code § 16.1-281 provides guidelines and procedures relating
to foster care plans. Code § 16.1-281(B) provides, in pertinent
part:
If consistent with the child's health and
safety, the plan shall be designed to
support reasonable efforts which lead to the
return of the child to his parents or other
prior custodians within the shortest
practicable time which shall be specified in
the plan. The child's health and safety
shall be the paramount concern of the court
and the agency throughout the placement,
case planning, service provision and review
process.
RDSS became involved with Latoya only after mother tried
several times to deal with Latoya's habit of running away. After
the third incident, mother, on her own initiative, petitioned the
juvenile court for help in seeking services and supervision for
Latoya. See Code §§ 16.1-278.4 (child in need of services) and
16.1-278.5 (child in need of supervision). Thus, involvement by
RDSS and the court was not due to abuse, neglect or abandonment.
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See Code § 16.1-278.2 (involving more serious situations of
parental unfitness or abuse, removing child through emergency
protective orders).
The trial court considered the circumstances under which
Latoya came before the court and heard evidence from mother, RDSS
and father. That evidence showed that mother cared deeply for
Latoya and was justifiably concerned when Latoya would suddenly
disappear for no apparent reason. Evidence further revealed that
Latoya ran away in October 2000 after being placed in RDSS
custody. She indicated that she did so because she feared being
placed in a foster home. Over a month after Latoya ran away from
RDSS custody, mother located her.
Mother maintained employment and provided for Latoya and
Latoya's brother, despite father's absence due to incarceration.
When Latoya would leave without permission, mother acted
appropriately, contacting authorities and searching for Latoya on
her own. The evidence demonstrated that mother attempted to
obtain counseling and was a caring and concerned parent who sought
services to assist her daughter. At the April 25, 2001 hearing,
the social worker, the attorney for RDSS, and Latoya's guardian ad
litem recommended approval of the foster care service plan's goal
of returning custody of Latoya to mother.
Despite father's hope that another relative gain custody of
Latoya, no relatives petitioned for custody or appeared at the
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hearing. Moreover, no relatives indicated to RDSS or the court a
willingness or ability to care for Latoya.
Everyone involved with Latoya's supervision after her
incidents of running away recommended returning custody to mother.
Implicit in the trial court's approval of the plan and finding
that mother had, at all times, acted appropriately was a finding
that returning Latoya to her mother was in Latoya's best interest.
Viewed in the light most favorable to RDSS and mother, the
trial court's implicit conclusion that returning custody to mother
was in Latoya's best interest was supported by a preponderance of
the evidence. For these reasons, the trial court did not err in
approving the foster care plan. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
Affirmed.
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