Crystal Lynn Olmstead v. City of Newport News Department of Human Services ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Raphael
UNPUBLISHED
Argued at Norfolk, Virginia
CRYSTAL LYNN OLMSTEAD
MEMORANDUM OPINION* BY
v. Record No. 1076-21-1 JUDGE JUNIUS P. FULTON, III
AUGUST 2, 2022
CITY OF NEWPORT NEWS DEPARTMENT
OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Tyneka L.D. Flythe, Judge
Charles E. Haden for appellant.
Patrick C. Murphrey, Assistant City Attorney II (Polly Chong,
Guardian ad litem for the minor child, on brief), for appellee.
Crystal Lynn Olmstead (mother) appeals the circuit court’s order terminating her parental
rights toward her daughter. Mother argues that the circuit court erred in finding that the evidence
was sufficient to terminate her parental rights under Code § 16.1-283(C)(2). Specifically, mother
argues that the circuit court erred in finding that the evidence was sufficient to demonstrate that
termination was in the best interests of the child. Moreover, mother argues that the evidence at trial
demonstrated that the Newport News Department of Human Services (the Department) “failed to
make ‘reasonable and appropriate efforts’ to assist [mother] ‘to remedy substantially the conditions
which led to the child’s foster care placement.’” We find no error and affirm the decision of the
circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
“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.” Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep’t of
Hum. Servs., 63 Va. App. 157, 168 (2014)). In this case, the Department prevailed below.
Mother and James Armstrong (father) are the biological parents to the child who is the
subject of this appeal.2 On May 16, 2017, mother was before the Newport News Juvenile and
Domestic Relations District Court (JDR court) for a foster care dispositional hearing pertaining
to the child’s brother and a preliminary protective order involving the child and the child’s older
sister. During that hearing, mother “became upset” and “shattered the glass on the entrance
door” as she left the courtroom. Consequently, mother was charged with destruction of property.
When she returned to the courtroom for a hearing on the protective order later that day, the court
discovered that mother had been in a confrontation with her boyfriend, Calvin Green, who “was
[previously] court ordered not to be around the children.”3 Based on concerns regarding
“domestic violence within the home,” the JDR court removed the child and her sister from
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
2
The child has two older siblings who are emancipated and, therefore, not involved in
these proceedings. Father also was not involved in these proceedings as he previously signed an
entrustment agreement with the Department whereby he agreed that his parental rights would be
terminated.
3
The Department became aware of another incident involving Mr. Green in mother’s
home in April 2021, which resulted in Mr. Green being charged with “aggravated assault, simple
assault.”
-2-
mother’s care. At the time of the removal, the child’s initial foster care goal was to return home
concurrent with relative placement.
From the very beginning of the child’s foster care placement, the Department was
concerned about mother’s mental instability, housing, substance abuse, and “general parenting.”
Consistent with the Department’s responsibility to provide reasonable and appropriate efforts to
remedy the conditions which led to the foster care placement, the Department not only identified
the obstacles to reuniting mother and child but provided services to help her achieve the goal of
returning the child to her home. Mother’s parental capacity evaluation demonstrated findings of
“narcissistic personality disorder” and a tendency to “exploit others to her own advantage.”
Mother participated in mental health skill building and individual counseling with a family
therapist in 2017 and 2018. The evaluation also noted a history of substance abuse, including
alcohol, cocaine, and marijuana. Mother received services to address her substance abuse issues
in 2017. However, she tested positive for cocaine as recently as April 2021. Consequently, a
family engagement specialist provided mother with family counseling services with an emphasis
on addressing mother’s history of substance abuse and stabilizing her housing and mental health.
As for mother’s housing, prior to the child’s entry into foster care the Department
discovered that mother had been living in housing that she could not afford, prompting the
Department’s “housing broker team [to assist] her with getting out of the housing and putting her
into housing that she could afford.” During that period, the housing broker team provided
mother “several thousands [of] dollars[’] worth of financial assistance . . . to move into a place
that she could afford based off of her income.” Nevertheless, mother did not meet her rent
obligations and “was again homeless.” By the time the family engagement specialist became
involved in this matter when the child was removed to foster care, “referring [mother] to the
housing broker team was [no longer] an option.”
-3-
During the pendency of this case, mother was able to find housing on her own; however,
the Department was concerned that she was again “living outside of her financial means.” At the
time, she received a monthly income of $769 and her monthly rent was $850. According to the
Department’s family engagement specialist, around this period, “[t]here were times when it did
not appear that the information [mother] provided to the agency was forthcoming.” Specifically,
mother falsely advised the Department that her mother was assisting with her rent payments. By
February 2018, mother had defaulted on her rent payments. Several months later, mother met
with the family engagement specialist and produced an alleged verification letter, without
signatures, indicating that she was current on her rent payments. In speaking with the apartment
complex, however, the family engagement specialist discovered that the complex had drafted no
such verification letter and that mother continued to be “significantly behind on her rent and at
that time her lease was up and that they were not going to be offering her the opportunity to
renew her lease.”
From October 2018 through March 2019, mother was homeless and staying with
“different friends.” Mother found new housing, a three-bedroom home, in March 2019 and she
was not homeless at the time of the circuit court hearing. The home “always appeared clean and
well furnished”; however, the Department remained concerned about mother’s ability to pay
rent. By July 2019, she was $350 behind on rent. During a meeting with the family engagement
specialist at that time, mother produced a “binder to show all of her bills” and asserted that she
was current on her payments. Upon further inspection, however, the family engagement
specialist discovered that mother “had just made multiple copies [of the bills] and put them in the
binder to make it appear[ ] to be more than one payment but it was just really the same bill and
she hadn’t paid any of the utilities since she had moved in.” While the family engagement
specialist stated that mother maintained “good contact” with the Department, mother’s pattern of
-4-
not being forthcoming with her information required the Department to independently verify the
information mother would report. The Department received no verification regarding mother’s
claims that she had stable employment.
The family engagement specialist also facilitated mother’s visitation with the child.
According to the family engagement specialist, there were instances in 2017 when mother told
the child’s sister, who resided in the same foster home as the child at the time, “that she felt like
harming herself.” There was another incident in which mother and the child’s sister “were
cursing at each other and [mother] was threatening to block [the child’s sister] from contacting
her on social media.” In addition, during that time, mother was frequently late to visitations.
The JDR court suspended mother’s visitation with the child from September 2017 through July
2018.
As for relative placement, the Department initially considered maternal grandmother as a
possible option. The child’s sister had lived with maternal grandmother since around the time
she had “ag[ed] out of foster care.” Thereafter, however, maternal grandmother “did not contact
the agency in order to pursue placement with [the child].” The Department then investigated
nine other relatives for the child’s potential placement, including father and paternal
grandmother. These investigations were unsuccessful.
In February 2019, the Department petitioned to terminate mother’s parental rights as to
the child, then eleven years old. The JDR court entered an order terminating mother’s parental
rights with respect to the child under Code § 16.1-283(C)(2) in April 2020. Mother timely filed a
notice of appeal to the circuit court.
At trial in the circuit court, the Department presented evidence that the child had a
positive relationship with her foster mother. The family services specialist testified that the child
initially had some “behavioral issues,” including damaging property within the foster home, but
-5-
had greatly improved over the past two years of living in the foster home. The foster mother
“implemented a lot of services and actually assisted [the child] a lot within the foster home.”
The foster mother addressed the child’s “behavioral issues” and worked with the child on “some
of her hygiene things that she ha[d] been having trouble with.” The family services specialist
stated that the child respected her foster mother and was comfortable in the foster home. While
living in the foster home, the child also received a variety of services, including medication
management, case management, individual therapy, after-school therapy, and in-home therapy.
Mother presented testimony from the child’s brother, who was eighteen years old at the
time of the circuit court hearing. The child’s brother stated that he had been living with mother
in the same residence for the previous four months. The child’s older sister lived in the residence
as well. The child’s brother stated that there was no room currently available in the residence for
the child if she were to move there, but he offered to move out of the residence to make room for
the child if necessary. The child’s brother testified that he felt safe in the residence and that
mother was capable of taking care of the child and providing for her. On cross-examination, the
child’s brother admitted that the police had been called to the residence twice during the four
months he lived there, due to “violent crimes.” The first occasion involved a verbal altercation
between him and mother. The second occasion involved mother’s boyfriend, Mr. Green, “pistol
whipping” the child’s brother. The child’s brother stated that Mr. Green did not live in the
residence but “stay[ed] there from time to time.” According to the child’s brother, mother and
Mr. Green smoked marijuana in the residence.
Mother also testified at trial. She stated she had lived in her current residence between
two and three years, and her monthly payments for rent and utilities were between $800 and
$850. Mother testified that she was “a little behind” on rent but denied being in danger of
eviction. She was not currently receiving any type of housing assistance. As for her
-6-
employment, mother testified that she was currently working as a personal care assistant for the
elderly, earning $10 per hour and working twenty-five hours per week. Mother acknowledged
that Mr. Green still “comes around” the residence and that their relationship had continued
throughout the pendency of this case. She also stated she would be able to abstain from
marijuana use if the child returned home. When asked about testing positive for cocaine and
marijuana as recently as April 2021, mother stated that marijuana helped her with anxiety and
that her other prescribed medications must have caused her to have a “false positive” test for
cocaine. Mother testified that she was in a better position now to care for the child than where
she was at the beginning of this matter.
Before making its findings, the circuit court acknowledged that the child had reached the
age of fourteen during the pendency of the proceedings. In accordance with Code § 16.1-283, the
circuit court conducted an interview of the child in camera and concluded that the child did not
object to the termination of mother’s residual parental rights.
After weighing the evidence and the parties’ arguments, the circuit court found that mother,
“without good cause, has been unwilling or unable within a reasonable period of time, not to exceed
twelve months from the date the child was placed into foster care, to remedy substantially the
conditions which [led] or required the continuance of the child foster placement.” The circuit court
also found that “it is in the best interest of the child that at this time [mother’s] residual parental
rights be terminated.” The circuit court granted the Department authority to place the child for
adoption. Mother’s appeal followed.
ANALYSIS
Mother argues on appeal that the Department failed to demonstrate by clear and
convincing evidence that it was in the best interests of the child to terminate mother’s parental
rights. Mother also argues that the “evidence adduced at trial indicated that [the Department]
-7-
failed to make ‘reasonable and appropriate efforts’ to assist [mother] ‘to remedy substantially the
conditions which led to the child’s foster care placement.’” Mother maintains that the
Department ceased offering services, contrary to the statutory requirements, after the family
engagement specialist became “offended by instances of perceived dishonesty on the part of
[mother].” In response, the Department asserts that mother did not raise these specific arguments
with the circuit court so this Court should not consider them under Rule 5A:18. The Department
notes that mother did not move to strike the Department’s evidence and her closing argument
made no reference to whether the statutory criteria had been satisfied and instead merely
expressed “her willingness, her desire to have her child come and reside with her and that’s our
request, judge, that you deny the city’s petition and restore [the child] to her mother’s care.”
Nonetheless, “[i]n interpreting Rule 5A:18, the Supreme Court has . . . held that ‘if a trial court is
aware of a litigant’s legal position and the litigant did not expressly waive such arguments, the
arguments remain preserved for appeal.’” Moncrief v. Div. of Child Support Enf’t ex rel. Joyner,
60 Va. App. 721, 729 (2012) (quoting Brown v. Commonwealth, 279 Va. 210, 217 (2010)). For
purposes of this case, we assume without deciding that mother sufficiently preserved her
arguments for appeal and address whether the circuit court erred in terminating mother’s parental
rights.
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)
(quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)). “Where, as
here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be
disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty.
-8-
Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania
Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).
The circuit court terminated mother’s parental rights under Code § 16.1-283(C)(2), which
provides that a court may terminate parental rights if:
[t]he 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.
“[S]ubsection C termination decisions hinge not so much on the magnitude of the
problem that created the original danger to the child, but on the demonstrated failure of the
parent to make reasonable changes.” Yafi, 69 Va. App. at 552 (alteration in original) (quoting
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271 (2005)).
“‘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.” Harrison v. Tazewell Cnty. Dep’t of Soc.
Servs., 42 Va. App. 149, 163 (2004) (quoting Ferguson v. Stafford Cnty. Dep’t of Soc. Servs., 14
Va. App. 333, 338-39 (1992)). The Department “is not required to force its services upon an
unwilling or disinterested parent.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App.
296, 323 (2013) (citing Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 243 (1982)); see
also Logan, 13 Va. App. at 130.
In this case, the circuit court considered that the Department initially removed the child from
mother’s care “due to an allegation of her being unsafe by way of a preliminary protective order.”
Following the removal, the Department offered mother services, including housing assistance,
mental health services, medical management, substance abuse, and family counseling. While
-9-
mother maintained “good contact” with the Department throughout the process, mother
demonstrated a pattern of dishonesty in her interactions with the Department and her issues
persisted. Mother has experienced a reoccurring problem of housing instability due to her
becoming financially overextended in her efforts to secure housing, despite agency counseling and
assistance. Mother also tested positive for marijuana and cocaine in April 2021, despite having
completed the Department’s substance abuse services. Violence in mother’s household also
persisted. Specifically, the child’s older brother was “pistol whipp[ed]” by mother’s boyfriend,
who had a history of domestic violence but nevertheless had continued a relationship with
mother. The circuit court explained that the child’s safety was “paramount,” and it was
concerned about the “continued abuse that is alleged to have occurred in the presence of the
home.”
Mother also argues that the Department failed to show that termination of mother’s
parental rights was in the best interests of child. We disagree. “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.” Tackett, 62 Va. App. at 319 (quoting
Logan, 13 Va. App. at 128); see also King v. King George Dep’t of Soc. Servs., 69 Va. App. 206,
211 (2018). “‘[T]here is no simple, mechanical, “cut and dried” way’ to apply the best interests
of the child standard.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 48 (2014) (quoting
Peple v. Peple, 5 Va. App. 414, 422 (1988)). “Instead, ‘the question must be resolved . . . in
light of the facts of each case.’” Id. (quoting Toombs v. Lynchburg Div. of Soc. Servs., 223 Va.
225, 230 (1982)).
At the time of the circuit court hearing, the child had been in foster care for over four
years. The evidence in the record suggests that the child’s current foster placement was
providing the child a safe and supportive environment. While in foster care, the child received a
- 10 -
variety of services, including medication management, case management, individual therapy,
after-school therapy, and in-home therapy. Moreover, the child’s foster mother assisted the child
with her hygiene and “behavioral issues.” According to the family engagement specialist, the
child was comfortable in the foster home and respected her foster mother. Further, based on the
circuit court’s in camera interview of the then-fourteen-year-old child, the circuit court
concluded that the child did not object to the termination of mother’s residual parental rights.
Despite all the Department’s services, mother still was not in a position to care for the
child. The circuit court found that “so much time ha[d] passed and there ha[d] been an inability,
no matter how much heart [mother had] probably tried to have in it, an inability to make the
necessary time frame in order to secure a safe place for [the child] to return to.” “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.” Tackett, 62 Va. App. at 322
(alteration in original) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535,
540 (1990)). Therefore, based on the totality of the evidence, we will not disturb the circuit
court’s ruling that there was clear and convincing evidence that it is in the child’s best interests
to terminate mother’s parental rights and that mother was unwilling or unable to remedy the
circumstances that led to the child’s removal within a reasonable period of time. Code
§ 16.1-283(C)(2).
Accordingly, we find that the circuit court did not err in terminating mother’s parental
rights as to her child under Code § 16.1-283(C)(2).
CONCLUSION
For the foregoing reasons, we affirm the decision of the circuit court.
Affirmed.
- 11 -