Ruyekia Silver v. Norfolk Department of Human Services ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Malveaux and Senior Judge Frank
UNPUBLISHED
RUKEYIA SILVER
MEMORANDUM OPINION*
v. Record No. 0830-20-1 PER CURIAM
FEBRUARY 23, 2021
NORFOLK DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
(Romy L. Radin, on brief), for appellant.
(Bernard Pishko, City Attorney; Heather L. Kelley, Deputy City
Attorney; B. Cullen Gibson, Guardian ad litem for K.C., a minor
child; Tanya L. Lomax, Guardian ad litem for E.B., a minor child, on
brief), for appellee.
Rukeyia Silver (mother) appeals the orders terminating her parental rights to her child,
E.B., approving the foster care goal of adoption for E.B., adjudicating that her child, K.C., was
abused or neglected, and approving the foster care plan for K.C. Mother argues that the circuit
court “erred in finding that there was sufficient evidence” to terminate her parental rights to E.B.
and that termination of her parental rights was not in E.B.’s best interests. She further contends
that the circuit court “erred in finding that there was sufficient evidence” to adjudicate that K.C.
was abused or neglected and that the Norfolk Department of Human Services (the Department)
“failed to exercise reasonable efforts to prevent removal of K.C.” 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 circuit court. See Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
On appeal, “we view the evidence in the light most favorable to the prevailing party, in
this case, the Department, and grant to it all reasonable inferences fairly deducible from the
evidence.” King v. King George Dep’t of Soc. Servs., 69 Va. App. 206, 210 (2018) (quoting
C. Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 420-21 (2012)).
On February 1, 2016, the Department removed mother’s two older children from her care
after she was arrested and her placement option with a family friend “fell through.”2 The
Department investigated the family and became concerned about the family’s “chronic
homelessness,” mother’s mental health, and the domestic violence between mother and her
boyfriend, Shawnte Walker. Despite the evidence to the contrary, mother denied any history of
domestic violence or mental health concerns.
The Norfolk Juvenile and Domestic Relations District Court (the JDR court) issued a
child protective order prohibiting Walker from having contact with mother and the children, and
it returned custody of the children to mother, over the Department’s objection. The Department
continued to provide services to mother, but she denied needing services.
Mother, however, participated in a psychological and parenting capacity evaluation with
Dr. Cathy Tirrell, a clinical psychologist. Mother reported having a “very complicated medical
history,” including diagnoses of epilepsy, sickle cell anemia, traumatic brain injury, pulmonary
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
Mother’s two older children are not the subject of this appeal. At the beginning of the
circuit court hearing, mother withdrew her appeals concerning the termination of her parental
rights to her older children.
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embolism, borderline diabetes, and Chiari malformation; Dr. Tirrell was unable to independently
verify mother’s assertions because no medical records were provided. Dr. Tirrell reported that
mother did not believe that the Department needed to be involved in her and her family’s lives,
and mother was “irritable and frustrated” with the Department’s case. Mother denied that
Walker had been physically aggressive towards her, and she believed that a no-contact order was
unnecessary. Mother did not accept any responsibility for the Department’s involvement.
Dr. Tirrell found mother to be “resourceful” and noted that mother tried “very hard so that the
children’s needs [were] met.” Dr. Tirrell was concerned, however, that mother’s stress impacted
“her patience, her frustration, tolerance, [and] her ability to respond appropriately to her
children’s cues.” Dr. Tirrell had “a lot of concerns about her being at home [with children]
without support.”
Mother and Walker were engaged in additional domestic violence incidents resulting in
emergency protective orders and Walker’s arrest. The children were placed back in foster care
for a few months before they were returned to mother’s care again for a trial home placement. In
August 2017, the Department removed the children from mother’s care for the last time after
learning that mother continued to violate the child protective order and have contact with
Walker.
After the Department placed the two older children in foster care, mother gave birth to
E.B. in September 2017.3 The Department removed E.B. from mother’s care shortly after his
birth due to concerns about her history of homelessness, her mental health and treatment, and
“her ability to protect the children.” The Department continued to provide services to mother
and arranged for visitation. The Department, however, was unable to verify mother’s attendance
at individual counseling appointments and domestic violence classes.
3
Walker is E.B.’s biological father.
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For several weeks between December 2018 and January 2019, mother left the Norfolk
area and reportedly traveled to Maryland and Delaware for brain surgery.4 Despite requests from
the Department, mother provided no medical documentation that she had brain surgery; instead,
in January 2019, mother gave birth to K.C., unbeknownst to the Department.5 Mother returned
to Norfolk and left K.C. in the care of LaTonya Jackson, a former CASA worker for mother’s
two older children.6 Mother never lived with Jackson, but K.C. lived with Jackson for
approximately three months.
The Department became aware of the situation with K.C. in April 2019, after mother
filed a petition requesting that legal and physical custody of K.C. be shared between her and
Jackson. After learning of the pending custody petition and investigating the situation, the
Department removed K.C. from Jackson’s home due to its “lack of knowledge of [K.C.’s] birth,
lack of cooperation, and [its] inability to vet out a suitable placement option.” The Department
determined that Jackson was not an appropriate placement because she was aware of mother’s
history with the Department and the services needed but did not inform the Department of K.C.’s
birth and had allowed mother to visit the child.
On August 16, 2019, the JDR court entered a dispositional order after adjudicating that
K.C. was abused or neglected.
4
A hearing was scheduled for January 25, 2019, and the JDR court noted that “mother
just had brain surgery.”
5
Walker is K.C.’s biological father.
6
In September 2017, Jackson was terminated from the CASA program due to boundary
issues and “overidentifying” with mother.
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The JDR court also entered orders terminating mother’s parental rights to E.B. and
approving the foster care plans for E.B. and K.C.7 Mother appealed the JDR court’s orders to the
circuit court.
On February 13 and 14, 2020, the parties appeared before the circuit court. The
Department presented evidence that E.B. was doing well in foster care and had met his
developmental milestones. K.C. also was doing well in foster care and was receiving
occupational therapy.
Furthermore, the Department presented evidence that mother had not complied with its
requirements. In December 2019, the Department had requested verification of mother’s
employment, but she never provided it. Mother also did not inform the Department of her
current address, as she indicated that she was considering relocating. Mother and Walker
continued to have contact with one another throughout the duration of the case, even though
mother denied it. Their contact with one another oftentimes involved domestic violence. In
September 2019, mother had reported that Walker had vandalized her van. Generally, however,
mother was not “forthcoming” about any domestic violence incidents and denied their
occurrences. The Department had not seen any change in mother’s “ability to be protective of
her children” since the Department first became involved with the family in 2016.
Mother testified about her efforts to complete the Department’s requirements. She had
participated in individual counseling “on and off for a year.” She was employed periodically
while the children were in foster care. At the time of the circuit court hearing, she was receiving
disability, had registered with two temporary staffing agencies, and was enrolled in a business
program with an online university.
7
Walker voluntarily terminated his parental rights to E.B. and did not appeal the JDR
court’s rulings regarding K.C.
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Mother acknowledged that she had “struggled” with housing and homelessness in the
past. She had lived in two domestic violence shelters and at least three other residences. At the
time of the circuit court hearing, she was renting a room in a house. Mother told the circuit court
that since her current residence was not suitable, she was on a waiting list for housing and also
was looking for housing and a job in North Carolina.
Mother testified that she had completed the required domestic violence classes and
parenting classes. Mother acknowledged that her relationship with her older children’s father
involved domestic violence. When their relationship ended, mother “rekindle[d]” her
relationship with Walker, which ultimately resulted in the births of E.B. and K.C. Mother
explained that she had denied any abuse between her and Walker because she did not realize at
the time that domestic violence involved more than physical abuse. She admitted at trial that
their relationship had involved verbal, emotional, and mental abuse.
Mother claimed to have been in a car accident in Maryland in January 2019, and
subsequently gave birth to K.C. She testified that she was unaware that she was pregnant.
Shortly after giving birth, she said that she was transferred to a hospital in Delaware for brain
surgery. Mother testified that as a result of the surgery, she had “significant memory loss.”
Mother stated that she lost her paperwork documenting the surgery and could not afford to have
additional copies made. On cross-examination, mother disagreed with the Maryland medical
records that indicated that she had been seen by a doctor when she was seven weeks pregnant
with K.C., that she had been hospitalized for placenta previa bleeding from December 25, 2018
through January 5, 2019, and that she had a scheduled caesarian section. She could not explain
why the Maryland medical records did not “mention anything” about a car accident.
Mother expressed her desire for E.B. and K.C. to return to her care. She claimed to be
able to provide them with a “safe, stable environment.”
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After hearing the evidence and argument, the circuit court took the matter under
advisement. On February 19, 2020, the circuit court entered orders terminating mother’s
parental rights to E.B. and approving the foster care goal of adoption for E.B. The circuit court
also entered an adjudicatory order and a dispositional order for K.C., finding that K.C. was
abused or neglected and approving the foster care plan. Mother timely noted her appeal.
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)).
Termination of parental rights
Mother argues that the circuit court erred in finding that there was sufficient evidence to
terminate her parental rights to E.B. and that termination was in his best interests. Mother
emphasizes that she participated in domestic violence classes and learned that domestic violence
encompasses more than physical abuse. She contends that she had separated from Walker and
“want[ed] to protect her children and keep them safe.” She also notes that she completed parenting
classes and that her “health problems prevented her from completing services in a timely fashion.”
The circuit court terminated mother’s parental rights under Code § 16.1-283(B) and (C)(2).
A court may terminate parental rights if:
The parent or parents, without good cause, have been unwilling or
unable within a reasonable period of time not to exceed 12 months
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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.
Code § 16.1-283(C)(2). “[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 v. Stafford Dep’t of Soc. Servs., 69
Va. App. 539, 552 (2018) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271
(2005)).
When the Department initially became involved with mother and her children, there were
concerns about domestic violence, homelessness, and mother’s mental health. Mother was
involved in an abusive relationship with her older children’s father and entered into another
abusive relationship with Walker. The Department presented evidence of assault and battery
charges, violations of a protective order, and other violent encounters between mother and
Walker, several of which occurred after mother’s completion of her domestic violence class.
Because of the ongoing domestic violence, the Department did not see any change in mother’s
“ability to be protective of her children.”
Moreover, at the time of the circuit court hearing, mother still had not obtained safe and
stable housing. She was renting a room in a house, which she acknowledged was not appropriate
for E.B. She testified about being on a waiting list for housing and that if a house became
available, she would need to present her birth certificate, which she did not have. She also had
considered moving to North Carolina, but nothing was definitive.
With respect to her mental health, mother admittedly engaged in individual counseling
“on and off for a year.” She resumed counseling in November 2019 but only attended “about
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three maybe four” sessions before she stopped going in December 2019. The Department was
unable to verify mother’s attendance.
E.B. was two years old at the time of the circuit court hearing and had been in foster care
for most of his life. The Department had been involved with the family before E.B.’s birth and
had offered numerous services to mother. Nevertheless, mother was not in a position to care for
E.B. “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 record, the circuit court did not err in terminating mother’s parental rights to E.B.
under Code § 16.1-283(C)(2) and finding that the termination was in E.B.’s best interests.
“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(C)(2), we, therefore, do not need to reach the question of whether
mother’s parental rights should also have been terminated under Code § 16.1-283(B).
Abuse & neglect
Mother argues that the circuit court erred in finding that there was sufficient evidence to
adjudicate that K.C. was abused or neglected. Mother contends that K.C. was in Jackson’s care at
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the time of the removal, and there was no evidence to prove that he was being abused or neglected
while in her care.
Code § 16.1-228(2) defines an abused or neglected child as any child: “[w]hose parents
or other person responsible for his care neglects or refuses to provide care necessary for his
health.” “[T]he statutory definitions of an abused or neglected child do not require proof of
actual harm or impairment having been experienced by the child.” D. Farrell v. Warren Cnty.
Dep’t of Soc. Servs., 59 Va. App. 342, 364 (2012) (quoting Jenkins v. Winchester Dep’t of Soc.
Servs., 12 Va. App. 1178, 1183 (1991)). Proof by a preponderance of the evidence is the
appropriate standard for abuse and neglect cases. See Cumbo v. Dickenson Cnty. Dep’t of Soc.
Servs., 62 Va. App. 124, 130 (2013).
As discussed above, at the time of K.C.’s birth, the Department already had removed
three of mother’s children from her care due to her inability to provide a safe and stable home for
them. Mother claimed that she was unaware that she was pregnant with K.C., but the
Department introduced evidence suggesting that mother had a seven-week sonogram and
prenatal care. Mother also was hospitalized for placenta previa bleeding from December 25,
2018 through January 5, 2019, and she had a caesarean section scheduled for K.C.’s birth.
During the circuit court hearing, mother claimed that the medical records were incorrect, but she
could not produce any records to corroborate her story that she had been in a car accident and
gave birth to K.C. thereafter.
At the conclusion of the evidence, the circuit court stated, “There have been some
things . . . along the way of this trial that . . . I think [mother] just hasn’t been entirely truthful
with us on everything.” “It is well established that the trier of fact ascertains a witness’
credibility, determines the weight to be given to their testimony, and has discretion to accept or
reject any of the witness’ testimony.” Layman v. Layman, 62 Va. App. 134, 137 (2013) (quoting
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Street v. Street, 25 Va. App. 380, 387 (1997) (en banc)). “This Court is bound by the credibility
findings of the circuit court.” Tackett, 62 Va. App. at 339.
Mother did not inform the Department about K.C.’s birth and subsequently left him in the
care of Jackson. The Department found that Jackson was not a suitable placement for K.C. The
executive director of Norfolk CASA opined that Jackson was incapable of “being in a protective
capacity for any of [mother’s] children” based on Jackson and mother’s relationship.
Throughout the Department’s involvement with mother, she had demonstrated that she
was incapable of rendering appropriate parental care. The circuit court found that K.C. was
abused or neglected because mother “neglect[ed] or refuse[d] to provide care necessary for his
health.” Code § 16.1-228(2). “When the trial court acts as a factfinder, as it did in this case, it
retains ‘broad discretion in making the decisions necessary to guard and to foster a child’s best
interests.’” C. Farrell, 59 Va. App. at 421 (quoting Farley v. Farley, 9 Va. App. 326, 328
(1990)). Considering the totality of the evidence, the circuit court did not err in finding that K.C.
was abused or neglected.
In addition, mother argues that the Department “failed to exercise reasonable efforts to
prevent removal of K.C.” because it could have pursued a protective order, instead of removing
K.C. Mother, however, never raised this argument with the circuit court. “The Court of Appeals
will not consider an argument on appeal which was not presented to the trial court.” Tackett, 62
Va. App. at 315 (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)); see Rule
5A:18.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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