Rachel Emily Jenkins v. Tazwell County Department of Social Services ( 2020 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges O’Brien, Malveaux and Senior Judge Frank
    UNPUBLISHED
    RACHEL EMILY JENKINS
    MEMORANDUM OPINION*
    v.     Record No. 0789-20-3                                         PER CURIAM
    DECEMBER 29, 2020
    TAZEWELL COUNTY DEPARTMENT
    OF SOCIAL SERVICES
    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
    Jack S. Hurley, Jr., Judge
    (Amanda Shea Hale, on brief), for appellant. Appellant submitting
    on brief.
    (Penny E. Nimmo; Gabrielle de Courcy, Guardian ad litem for the
    minor children; Broadwell, Gillespie & Nimmo, P.C.; The de Courcy
    Law Firm, on brief), for appellee. Appellee and Guardian ad litem
    submitting on brief.
    Rachel Emily Jenkins (mother) appeals the orders terminating her parental rights to her
    children. Mother argues that the circuit court erred by terminating her parental rights under Code
    § 16.1-283(B) and (C) because she was not responsible for the actions ultimately leading to the
    emergency removal of the children and the evidence was sufficient to prove that the conditions
    which resulted in the abuse or neglect could be substantially corrected or eliminated so the children
    could be returned home safely. Upon reviewing the record and briefs of the parties, we conclude
    that the circuit court did not err. Accordingly, we 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)).
    Mother is the biological mother to the four children who are the subject of this appeal,
    A.S., E.S., C.M.S., and C.L.S. Mother and the children’s father, Josh Skipworth (father), had
    “an extremely volatile relationship” and a history of domestic violence.2 In 2018, the Tazewell
    County Department of Social Services (the Department) received reports alleging drug abuse and
    domestic violence in the home while the children were present. Mother had tested positive for
    drugs, was evicted from her apartment, and was charged with multiple felonies. The Department
    had developed safety plans and agreed to the maternal grandmother supervising mother, so that
    mother was not left unsupervised with the children. Then, for approximately one month, the
    Department lost contact with mother and did not know where she or the children were.
    On July 19, 2018, the maternal grandmother and the four children were riding in a car
    operated by the maternal grandmother’s husband. He was driving while intoxicated and
    assaulted the maternal grandmother, causing her to have a “a busted lip and bruises” on her face.
    He left the maternal grandmother and the four children, who ranged in age from four months to
    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
    Father signed an entrustment agreement, and the Tazewell County Juvenile and
    Domestic Relations District Court terminated father’s parental rights.
    -2-
    four years old, on the side of Highway 460. The police arrested the maternal grandmother’s
    husband for felony child neglect, driving under the influence with minors in the vehicle, and
    domestic assault. Despite this incident, mother continued to leave the children in the care of the
    maternal grandmother. The Department spoke with the maternal grandmother, who indicated
    that she intended to reconcile with her husband if he agreed to counseling after his release from
    incarceration. The Department determined that it was best to remove the children and attempted
    a relative placement with the paternal grandmother, but the children were more than the paternal
    grandmother could handle. On July 27, 2018, the Department placed the children in foster care.
    The Tazewell County Juvenile and Domestic Relations District Court (the JDR court)
    entered an emergency removal order and preliminary removal order. The JDR court
    subsequently adjudicated that the children were abused or neglected and entered a disposition
    order.
    While the children were in foster care, mother alternated residing with the maternal
    grandmother in Virginia and with father in West Virginia, which impacted the Department’s
    ability to provide her with services. The Department required mother to participate in parenting
    classes, in-home services, and random drug screens. Mother completed the parenting classes,
    but she did not demonstrate what she had learned. Mother also needed to obtain and maintain
    stable housing and employment, which she did not do.
    In addition, the Department required mother to abstain from drug use and criminal
    activities, but she continued to abuse drugs and get arrested for criminal activity. On August 23,
    2018, mother tested positive for THC, buprenorphine, and cocaine, and she admitted to daily
    consumption of vodka. Mother was referred to a facility where she could “try to get detoxed,”
    but she refused to go. Mother also was referred to Alcoholics Anonymous (A.A.) and Celebrate
    Recovery, and although she reported going to A.A. meetings, she did not provide proof of
    -3-
    attendance. In September 2018, mother tested positive for marijuana twice and reportedly had
    been in a domestic violence incident with father. She was referred for domestic violence support
    and encouraged again to seek substance abuse treatment, but mother did not follow through with
    the referrals. On October 2, 2018, mother was at the Department for a supervised visit and was
    arrested for a probation violation. On November 19, 2018, mother tested positive for
    methamphetamines, amphetamines, and marijuana and was visibly under the influence at a
    scheduled supervised visitation. Again, mother was advised to go to substance abuse treatment,
    but she refused. Mother and father also continued to engage in domestic violence, and mother
    refused to seek domestic violence services. On November 22, 2018, mother was arrested in
    West Virginia for possession with intent to distribute a Schedule II drug; she possessed sixty
    grams of marijuana.3 In December 2018, mother tested positive for THC. Mother was
    incarcerated from January 2019 until March 2019, when she started probation.4
    The Department arranged for weekly supervised visitation between the children and
    mother. The children’s behavior deteriorated after they visited with mother. For example, A.S.
    and E.S. would throw tantrums, have nightmares, and wet their bed after visits with mother.
    Mother last visited with the children on May 15, 2019, before she was incarcerated again.
    In May 2019, mother and father informed the Department of their intention to reconcile
    and co-parent the children. The Department required them to participate in couple’s counseling.
    3
    At the time of the circuit court hearing, mother’s West Virginia criminal charges were
    still pending.
    4
    In October 2019, the circuit court found that mother had violated her probation after she
    was arrested for possessing marijuana and scales and sentenced her to four months’
    incarceration.
    -4-
    The Department reminded mother that she needed to obtain employment and abstain from drug
    use and criminal activity. This was the last time that mother spoke with the Department.5
    Thereafter, the Department pursued termination because mother had not demonstrated
    stability or compliance. On June 19, 2019, the JDR court approved the foster care goal of
    adoption. On December 5, 2019, the JDR court terminated mother’s parental rights to the
    children. On December 12, 2019, mother appealed the JDR court’s permanency planning and
    termination orders to the circuit court.
    On May 14, 2020, the parties appeared before the circuit court. The circuit court
    dismissed mother’s appeal of the permanency planning orders, as they were not timely appealed.
    The Department presented evidence that the children were doing well in foster care. The
    children had been living with the same foster family since they entered foster care. When the
    children first entered foster care, A.S. claimed that she had been sexually abused, and A.S. and
    E.S. had night terrors and would wet their beds or clothes after visiting mother. Consequently,
    A.S. and E.S. attended individual counseling. Counseling and the cessation of mother’s visits
    helped A.S. and E.S. because by the time of the circuit court hearing, A.S. and E.S. were no
    longer having night terrors or bathroom accidents. The younger two children did not have any
    behavioral issues. The children and their foster family had bonded, and the foster parents wanted
    to adopt them.
    The Department presented evidence that mother did not have a viable plan to care for the
    children, and she had not complied with the Department’s requirements for reunification.
    Mother was unemployed and did not have stable housing. When asked about how she would
    support her children, mother testified that she had tried unsuccessfully to find a job but admitted
    5
    Mother left a voicemail for the social worker in October 2019 after she was released
    from incarceration, but the social worker was unable to reach her and talk with her.
    -5-
    that her criminal record “doesn’t look very good” to employers. She also expressed a desire to
    “get a home,” but at the time of the circuit court hearing, she was living with the maternal
    grandmother and her husband, who left the maternal grandmother and the children on the side of
    the road which led to the children’s placement in foster care. Furthermore, mother continued to
    have contact with father daily but denied any domestic violence between them for the past “six
    or seven months.”
    Mother admitted that she had tested positive for drugs while the children were in foster
    care and that she had not completed substance abuse treatment but claimed to have attended A.A.
    meetings. Mother’s probation officer testified that she had not followed through with substance
    abuse treatment, and she was the subject of a police investigation for allegedly distributing
    “massive amounts of marijuana.”6 Her probation officer stated that although he had not had
    problems with mother, she had had “a hard time getting structured enough to do the things she
    need[ed] to do all of the time.” Mother admitted that she had “messed up” but loved her children
    and did not agree to the termination of her parental rights.
    After hearing the evidence and arguments, the circuit court considered the totality of the
    evidence, including mother’s drug use, unemployment, and instability. The circuit court held
    that it was in the children’s best interests to terminate mother’s parental rights. On June 8, 2020,
    the circuit court entered orders terminating mother’s parental rights under Code § 16.1-283(B),
    (C)(1), and (C)(2). This appeal followed.
    ANALYSIS
    “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
    6
    Mother denied distributing marijuana but admitted to posting a video on social media of
    herself possessing marijuana.
    -6-
    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.
    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)).
    Mother argues that the circuit court erred in terminating her parental rights because she
    was not responsible for the actions leading to the children’s removal. The children had been in
    the care of the maternal grandmother when her husband drove them while intoxicated and left
    them on the side of the road. Mother acknowledges that she was aware of the incident and
    “allowed” the children to remain with the maternal grandmother “per the safety plan not of her
    own decision.” Mother asserts that the Department’s safety plan prevented her from “performing
    as a mother.” Mother, however, fails to recognize that the Department never placed the children
    with the maternal grandmother. Rather, the Department had developed a safety plan in which
    the maternal grandmother supervised mother and the children because of mother’s drug use, the
    domestic violence in the home, mother’s eviction, and her pending criminal charges. Mother’s
    actions led to the removal of the children because she required supervised visitation and could
    not care for the children herself.
    Similarly, in Eaton v. Washington Cnty. Dep’t of Soc. Servs., 
    66 Va. App. 317
     (2016),
    this Court rejected Eaton’s argument that she was not responsible for the actions leading to the
    removal of the child when the child was in the custody of others. Id. at 325. We found that
    Eaton had ignored the fact that the child was in the custody of others because a Tennessee court
    had found that she could not take care of the child. Id. At the time of the termination hearing,
    Eaton still was not in a position to care for the child. Id. at 325-26.
    -7-
    Here, the circuit court found that the evidence was sufficient to terminate mother’s
    parental rights under Code § 16.1-283(B), (C)(1), and (C)(2). Mother argues that the conditions
    that resulted in the abuse or neglect could have been substantially corrected to allow the children
    to return home. Mother asserts that she “was working toward rehabilitating her environment and
    exercising more disciplined behavior” than she had in the past. She emphasizes that she was
    doing well on probation, maintaining sobriety, attending A.A. meetings, working on her GED,
    and trying to find a job.
    Code § 16.1-283(B) states a parent’s parental rights may be terminated if:
    1. The neglect or abuse suffered by such child presented a serious
    and substantial threat to his life, health or development; and
    2. It is not reasonably likely that the conditions which resulted in
    such neglect or abuse can be substantially corrected or eliminated
    so as to allow the child’s safe return to his parent or parents within
    a reasonable period of time. In making this determination, the
    court shall take into consideration the efforts made to rehabilitate
    the parent or parents by any public or private social, medical,
    mental health or other rehabilitative agencies prior to the child’s
    initial placement in foster care.
    Furthermore, the following is prima facie evidence for Code § 16.1-283(B)(2):
    a. The parent or parents have a mental or emotional illness or
    intellectual disability of such severity that there is no reasonable
    expectation that such parent will be able to undertake
    responsibility for the care needed by the child in accordance with
    his age and stage of development;
    b. The parent or parents have habitually abused or are addicted to
    intoxicating liquors, narcotics or other dangerous drugs to the
    extent that proper parental ability has been seriously impaired and
    the parent, without good cause, has not responded to or followed
    through with recommended and available treatment which could
    have improved the capacity for adequate parental functioning; or
    c. The parent or parents, without good cause, have not responded
    to or followed through with appropriate, available and reasonable
    rehabilitative efforts on the part of social, medical, mental health or
    -8-
    other rehabilitative agencies designed to reduce, eliminate or
    prevent the neglect or abuse of the child.
    Id.
    After hearing the evidence and argument, the circuit court found that the Department had
    presented clear and convincing evidence for the second and third prima facie factors. The circuit
    court found that mother had “a major drug problem” and that “no treatment was ever followed
    through on, ever, and in addition to [the Department] recommending it, begging for it, referring
    [mother] to it and nothing ever happened.” Although the circuit court recognized mother’s
    attendance at “some A.A. meetings,” it also found that A.A. was “a support group” and mother
    never attended substance abuse treatment.7 Mother also did not participate in other required
    services, other than a six-week parenting class that took her six months to complete.
    Furthermore, the circuit court found that mother may have completed the parenting class, but she
    did not apply what she had learned.
    At the time of the circuit court hearing, the children had been in foster care for almost
    twenty-two months. Mother had not completed the Department’s requirements and was not in a
    position to care for the children. “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 v. Arlington Cnty. Dep’t of Hum. Servs., 
    62 Va. App. 296
    ,
    322 (2013) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 
    10 Va. App. 535
    , 540
    (1990)). Considering the totality of the evidence, the circuit court did not err in finding that it
    7
    The circuit court also recalled that it had ordered mother to participate in substance
    abuse treatment when she had appeared previously before the court on a criminal matter, so she
    had “defied the [c]ourt’s order” by not completing substance abuse treatment.
    -9-
    was in the children’s best interests to terminate mother’s parental rights and that the evidence
    was sufficient to support termination under Code § 16.1-283(B).8
    The Department requested an award of attorney’s fees and costs incurred on appeal. This
    Court may award appellate attorney’s fees “[i]n any case where attorney fees are recoverable
    under Title 16.1 or Title 20 relating to . . . the control or disposition of a juvenile and other
    domestic relations cases arising under Title 16.1 or Title 20, or involving adoption under Chapter
    12 (§ 63.2-1200 et seq.) of Title 63.2 . . . .” Rule 5A:30(b)(1). Code § 16.1-278.19 allows a
    court to award attorney’s fees and costs “on behalf of any party as the court deems appropriate
    based on the relative financial ability of the parties and any other relevant factors to attain
    equity.” Here, the circuit court found that mother was indigent and appointed counsel for her.
    Therefore, we deny the Department’s request.
    CONCLUSION
    For the foregoing reasons, the circuit court’s ruling is affirmed.
    Affirmed.
    8
    The circuit court also terminated mother’s parental rights under Code § 16.1-283(C)(1)
    and (C)(2). “When a trial court’s judgment is made on alternative grounds, we need only
    consider whether any one of the alternatives is sufficient to sustain the judgment of the trial
    court, and if so, we need not address the other grounds.” Kilby v. Culpeper Cnty. Dep’t of Soc.
    Servs., 
    55 Va. App. 106
    , 108 n.1 (2009); see also Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs.,
    
    46 Va. App. 1
    , 8 (2005) (the Court affirmed termination of parental rights under one subsection
    of Code § 16.1-283 and did not need to address termination of parental rights pursuant to another
    subsection). Because we find that the circuit court did not err in terminating mother’s parental
    rights under Code § 16.1-283(B), we, therefore, do not need to reach the question of whether
    mother’s parental rights also should have been terminated under Code § 16.1-283(C)(1) and
    (C)(2).
    - 10 -
    

Document Info

Docket Number: 0789203

Filed Date: 12/29/2020

Precedential Status: Non-Precedential

Modified Date: 12/29/2020