Robert C. Macias v. Hopewell Department of Social Services ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Senior Judge Annunziata
UNPUBLISHED
ROBERT C. MACIAS
v. Record No. 0392-20-2
HOPEWELL DEPARTMENT
OF SOCIAL SERVICES
ROBERT C. MACIAS
MEMORANDUM OPINION*
v. Record No. 0394-20-2 PER CURIAM
NOVEMBER 4, 2020
HOPEWELL DEPARTMENT
OF SOCIAL SERVICES
ROBERT C. MACIAS
v. Record No. 0395-20-2
HOPEWELL DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Carson E. Saunders, Jr., Judge
(Paul S. Roskin; Vergara & Associates, on briefs), for appellant.
Appellant submitting on briefs.
(Joan M. O’Donnell; Jessica V. Bailey, Guardian ad litem for the
minor children; Old Towne Lawyer, LLC, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Robert C. Macias (father) appeals the circuit court’s orders terminating his parental rights to
his three children. Father argues that the circuit court erred by finding that there was sufficient
evidence to terminate his parental rights under Code § 16.1-283(B) and (C)(2). Upon reviewing the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
record and briefs of the parties, we conclude that the circuit court did not err. Accordingly, we
affirm the decision of the circuit court.
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)).
Father and Nicole Johnson (mother) are the biological parents to the three children who
are the subject of this appeal.2 On March 13, 2018, the Hopewell Department of Social Services
(the Department) received a report that mother had overdosed on heroin in the home while the
children were present. The Department entered into a safety plan with father stating that mother
had to be supervised around the children. On March 26, 2018, mother was arrested for
assaulting father, and the Hopewell Juvenile and Domestic Relations District Court (the JDR
court) issued an emergency protective order.3 On April 3, 2018, the Department received
another report that mother had overdosed in the home with the children present. The Department
tested father for drugs, and he tested positive for opiates and benzodiazepines.
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 circuit court terminated mother’s parental rights, and she appealed the circuit
court’s rulings. See Johnson v. Hopewell Dep’t of Soc. Servs., Record No. 0567-20-2.
3
The domestic assault and battery charge was dismissed ultimately.
-2-
On April 4, 2018, the Department removed the children from their parents’ care and
placed them in foster care because mother and father could not identify any possible relative
placements. The children were two, seven, and eight years old. The JDR court entered an
emergency removal order and a preliminary removal order. The JDR court subsequently
adjudicated that the children were abused or neglected and entered a dispositional order.
The Department was concerned about mother’s and father’s unstable housing, domestic
violence, and drug abuse. The Department required father to participate in a psychological and
parental capacity evaluation, individual counseling, couple’s counseling, parenting classes, and
substance abuse treatment. The Department also required father to submit to random drug
testing and to maintain safe and stable housing. Father was inconsistent in complying with the
required services.
The parents had a history of domestic violence. Beginning in August 2010 and
continuing until March 2018, mother had been arrested for assault and battery against father on
three occasions, with all charges being nolle prosequied or dismissed. During the same time
period, father had been arrested for assault and battery against mother on five occasions, with all
charges ultimately being nolle prosequied or dismissed.4 The Department required mother and
father to participate in counseling for domestic violence, so they went to an assessment for
domestic violence. Mother and father enrolled in a domestic violence program, but they stopped
participating in the program because of its cost. Father enrolled in a Batterer’s Intervention
Group and attended five out of seventeen sessions. Two or three weeks before the circuit court
hearing, mother and father told the Department that they had completed a domestic violence
program, but the Department was unable to confirm their participation.
4
On August 21, 2012, the JDR court found that the facts were sufficient to find guilt for
father but deferred the disposition of an assault and battery charge; the JDR court dismissed the
matter in 2014.
-3-
Father participated in a psychological evaluation, and it was recommended that he
complete substance abuse counseling, attend narcotics anonymous meetings, and participate in
psychotherapy. The Department was unable to verify father’s participation in counseling.
Father enrolled in substance abuse treatment but was discharged for being noncompliant. Father
had been taking Suboxone and was referred to a program at District 19, but he later enrolled
himself in a methodone program in Newport News, where he had moved.
In addition to its other referrals and services, the Department arranged for father to visit
with and call the children. Initially, the visitations were arranged with the foster parents directly,
but subsequently stopped because “the relationship between the foster parents and parents
became strained.” The foster mother testified that during several visits, the parents argued with
each other in front of the children, which upset the children. Thereafter, the Department
supervised the visitations and telephone calls. Father regularly attended the visits and
participated in the phone calls.
By October 2018, the parents had moved out of Hopewell, which limited the
Department’s ability to provide services to them. Father had moved to an apartment in Newport
News to be closer to his job. Mother had moved to Ohio, but subsequently returned to Virginia.
In April 2019, mother and father moved to a three-bedroom mobile home in Newport News.
On May 3, 2019, the Department filed a petition for a permanency planning hearing and
recommended a foster care goal of adoption. On June 24, 2019, the JDR court approved the
foster care goal of adoption, and father appealed the JDR court’s ruling. On July 31, 2019, the
JDR court terminated father’s parental rights, and he appealed the rulings to the circuit court.
On January 31, 2020, the parties appeared before the circuit court. The social worker
testified that the parents had not made “significant progress” toward achieving the Department’s
goals. The social worker explained that when the Department asked father to do something,
-4-
there was “a lot of conniving, scheming, . . . [and] no services [had] been completed or proved to
be completed.” The Department had been unable to verify father’s participation and completion
of substance abuse treatment, anger management program, domestic violence program, and
counseling.
The Department presented evidence that when the children entered foster care, they
“basically did or [said] what they wanted.” The foster mother testified that the older two
children were “violent toward each other” and would physically fight one another. All three
children needed “extensive dental care” and had to be treated for worms. While in foster care,
the Department offered the children individual therapy and in-home counseling. The social
worker described the children as “more stable with their behaviors”; however, the foster mother
testified that the older child still needed to work on controlling her behavior.
Father testified that he met mother eleven years earlier, but they never married. Father
was the primary wage earner for the family. Father acknowledged that he and mother had had
some domestic problems in the past, and they had separated for a few months at a time. Father
also admitted to using drugs in 2018, which led to the removal of the children. Father explained
that he did not have sufficient money to go to a clinic, so he purchased Suboxone strips from a
friend. Then, he and mother separated; she moved to Ohio and he moved to Newport News after
finding a new job. He and mother later reunited and started living together in a three-bedroom
mobile home in Newport News. According to father, the police had not been called to their
residence. Father believed that the police intervention in the past was “a hundred percent
drug-related.”
Father testified that he and mother had been involved in substance abuse treatment at
Pinnacle Treatment Center, where they received methadone daily and participated in individual
and group counseling. Father also claimed that he and mother completed a thirty-six-hour
-5-
parenting class and that he completed an anger management class. Father believed that he had
met all of the Department’s requirements and was ready to have the children returned to his and
mother’s custody.
After hearing the evidence and argument, the circuit court terminated father’s parental
rights under Code § 16.1-283(B) and (C)(2) and approved the foster care goal of adoption. On
January 31, 2020, the circuit court entered orders memorializing its rulings. These appeals
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
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)).
Father argues that the circuit court erred in finding that there was sufficient evidence to
terminate his parental rights under Code § 16.1-283(B) and (C)(2). He contends that the
Department removed the children because of mother’s heroin overdose and the domestic
violence that occurred in March 2018, which led to mother’s arrest for assault and battery against
him. Father acknowledges that he had had a substance abuse problem, but stresses his
involvement in methadone treatment.
The circuit court terminated father’s parental rights under Code § 16.1-283(C)(2), which
states that a court may terminate parental rights if:
-6-
The 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 (quoting Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 271 (2005)).
The circuit court found that the Department had “asked and asked and asked and asked
for verification on the compliance of the requirements that [it] set out early on in order for
[father] and [mother] to substantially remedy the conditions that brought the children to foster
care.” The circuit court held that father had “not taken . . . steps to remedy” the conditions
leading to the children’s placement in foster care. The circuit court would not accept father’s
testimony “without any independent evidence” that he had completed all of his requirements
because there had been “multiple, multiple unsuccessful completions previously which were
documented by the Department . . . .”
Domestic violence was one of the reasons that the Department had removed the children
from the home. Considering father’s demeanor during the trial, the circuit court concluded that
father’s “anger issues have not been addressed.” The circuit court found that father had
“demonstrated in this courtroom the lack of control and anger” when he could not control his
emotions and his attorney had to tell him to “be quiet.”
The children had been in foster care since April 2018. The Department had been unable
to verify that father had completed the required services since the children entered foster care.
“It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find
-7-
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 terminating father’s parental rights under Code
§ 16.1-283(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 father’s parental
rights under Code § 16.1-283(C)(2), we, therefore, do not need to reach the question of whether
father’s parental rights should also have been terminated under Code § 16.1-283(B).
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
-8-