Lisa Michelle Whitmer v. Spotsylvania County Department of Social Services ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Senior Judge Annunziata
UNPUBLISHED
LISA MICHELLE WHITMER
v. Record No. 0882-20-2
SPOTSYLVANIA COUNTY DEPARTMENT
OF SOCIAL SERVICES MEMORANDUM OPINION*
PER CURIAM
ROBERT ALLEN WHITMER MARCH 30, 2021
v. Record No. 0903-20-2
SPOTSYLVANIA COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ricardo Rigual, Judge
(Joseph M. Kirchgessner; Woehrle Dahlberg Yao, PLLC, on brief),
for appellant Lisa Michelle Whitmer. Appellant submitting on
brief.
(Gary D. Godman; Williams Stone Carpenter Buczek, PC, on
brief), for appellant Robert Allen Whitmer. Appellant submitting
on brief.
(Robin N. Krueger; Carolyn S. Seklii, Guardian ad litem for the
minor children; Sullivan & Seklii, PLC, on briefs), for appellee.
Appellee and Guardian ad litem submitting on briefs.
Lisa Michelle Whitmer (mother) and Robert Allen Whitmer (father) appeal the circuit
court’s orders terminating their parental rights to four of their children. Mother and father argue that
the circuit court “erred in finding reasonable and appropriate efforts were made by the [Spotsylvania
County] Department of Social Services when ordering termination” under Code § 16.1-283(B) and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(C)(2). Mother and father also assert that the circuit court erred in finding that termination of their
parental rights was in the children’s best interests. Furthermore, mother and father contend that the
circuit court “erred in refusing to transfer custody” of two of their children to their adult child, who
was “a willing and able relative.” 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.
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 and father are the biological parents to five children, four of whom are the
subjects of these appeals.2 The Spotsylvania County Department of Social Services (the
Department) first became involved with the family in 2008 after there was a founded disposition
against father for physical neglect. In February 2015, father attempted to commit suicide by
driving his vehicle into a tree. Mother and father were intoxicated at the time. The Spotsylvania
County Juvenile and Domestic Relations District Court (the JDR court) awarded custody of the
children, who ranged in age from one to eight years old, to their maternal grandparents, Wanda
and Richard Morris.
1
The record in these cases was sealed. Nevertheless, the appeals necessitate unsealing
relevant portions of the record to resolve the issues appellants have 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 and father’s oldest child is an adult.
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The parents moved in with the grandparents. Mother consumed alcohol and tested
positive for THC and opiates. Mother pleaded guilty to five counts of contributing to the
delinquency of a minor. In July 2015, the JDR court issued a child protective order, which
prohibited the parents from residing with the maternal grandparents and having any unsupervised
contact with the children. The JDR court also found that the children were abused or neglected.
The Department offered substance abuse treatment to mother and father, but they did not
attend. The JDR court ordered the parents to attend a parenting class, which they did not
complete. The Department provided “a variety of services,” including supervised visitation, to
the family. Mother and father attended forty-three out of a scheduled 144 visits.
In March 2017, the JDR court renewed the child protective order.3 In June 2017, the
police responded to the maternal grandparents’ house and found mother and father alone with the
children, in violation of the child protective order. Mother was intoxicated and belligerent, and
the children reported that they were afraid of mother.
After the incident with the police, the Department removed the children and placed them
in foster care. Mother did not have any further contact with the children. On July 21, 2017, the
JDR court adjudicated that the children were at risk of being further abused. Father’s visitation
with the children ended in September 2017. The Department stopped offering services to mother
and father and changed the foster care goal to adoption.
On May 4, 2018, the JDR court entered permanency planning orders approving the foster
care goal of adoption. The JDR court’s rulings were appealed to the circuit court, which also
approved the foster care goal of adoption after conducting a de novo hearing. Father appealed
the circuit court’s ruling to this Court. We summarily affirmed the circuit court’s ruling. See R.
3
The child protective order expired in March 2019.
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Whitmer v. Spotsylvania Cnty. Dep’t of Soc. Servs., Record Nos. 0083-19-2, 0084-19-2,
0085-19-2, and 0086-19-2 (Va. Ct. App. July 23, 2019).
On September 6, 2019, the JDR court terminated mother’s and father’s parental rights to
the four children. On November 27, 2019, the parties appeared before the circuit court.4 After
hearing the evidence and argument, the circuit court issued a letter opinion. The circuit court
found that mother and father lived at a motel in Stafford County and hoped to move to a
townhome nearby. The circuit court found that mother worked at a gas station and intended to
obtain her driver’s license after she paid her outstanding fees to the Department of Motor
Vehicles. Mother had completed probation and the court-ordered alcohol safety action program
(ASAP), substance abuse treatment, and a batterer’s intervention program. The circuit court
noted that “because each of these programs were completed pursuant to a [c]ourt order, none
demonstrate [m]other taking personal initiative to address the roots of the circumstances that led
to neglect.” In addition, the circuit court found that mother refused “to reflect on her behavior
with a critical eye,” especially when she asserted that “she had always been a good mother to her
children.”
The circuit court found that father was employed and claimed to have no problems with
substance abuse. The circuit court concluded that like mother, father had not shown that he was
committed to resolving the conditions that led to the children’s neglect. Although father was
seeing a psychiatrist for his mental health, the circuit court found that father had “demonstrated
continued willingness to minimize and excuse the conduct which had created the need for foster
care.”
4
The transcript of the circuit court hearing was filed late on October 26, 2020; therefore,
it is not part of the record. Rule 5A:8(a).
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The circuit court found that throughout the history of the case, mother and father had “not
demonstrated much interest in personally taking custody” of the children. Mother and father
reported unsuccessful attempts to contact the Department, but they failed to provide any written
correspondence with the Department or requests for services. The circuit court found that the
Department offered rehabilitative services to the parents for years, and its efforts were
“reasonable” and “appropriate.”
At the time of the circuit court hearing, the four minor children ranged in age from six to
twelve. The circuit court found that the children had been “coping well” in foster care. The
younger two children were placed together in a “stable” foster home, while the older two
children were in a “new” foster home. After a “thorough review of the pleadings, counsel’s
argument, and the law,” the circuit court held that the termination of both mother’s and father’s
parental rights was in the children’s best interests. The circuit court terminated mother’s and
father’s parental rights under Code § 16.1-283(B) and (C)(2). These appeals followed.
ANALYSIS
Res judicata and collateral estoppel
Mother and father challenge the circuit court’s ruling terminating their parental rights and
finding that their adult child was not an option for relative placement. The Department argues that
res judicata and collateral estoppel prohibit the parents from making their arguments on appeal.
The Department emphasizes that mother did not appeal the permanency planning orders approving
the foster care goal of adoption and that although father appealed the permanency planning orders,
he did not assign error to the circuit court’s ruling that adoption was in the children’s best interests.
The Department contends that after this Court summarily affirmed the circuit court’s ruling
regarding the permanency planning orders, res judicata and collateral estoppel apply.
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“Res judicata involves both issue and claim preclusion.” Lane v. Bayview Loan Servicing,
LLC, 297 Va. 645, 653 (2019) (quoting Funny Guy, LLC v. Lecego, LLC, 293 Va. 135, 142
(2017)). “While claim preclusion bars relitigation of a cause of action, issue preclusion bars
relitigation of a factual issue.” Id. “Whether a claim or issue is precluded by a prior judgment is a
question of law this Court reviews de novo.” Id.“Rule 1:6 embodies the common law principle of claim preclusion in Virginia.” Id. at 654.
A party whose claim for relief arising from identified conduct, a
transaction, or an occurrence, is decided on the merits by a final
judgment, is forever barred from prosecuting any second or
subsequent civil action against the same opposing party or parties
on any claim or cause of action that arises from that same conduct,
transaction or occurrence, whether or not the legal theory or rights
asserted in the second or subsequent action were raised in the prior
lawsuit, and regardless of the legal elements or the evidence upon
which any claims in the prior proceeding depended, or the
particular remedies sought.
Rule 1:6(a).
The Department argues that mother and father cannot challenge the termination orders
because their claims for relief arise out of the “same conduct, transaction or occurrence” as the
permanency planning orders. See C. Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375,
428 (2012) (quoting Rule 1:6). We disagree.
First, we note that the Department had a stricter burden at the termination hearing than it did
at the permanency planning hearing. The Department had to present clear and convincing evidence
that termination was in the best interests of the children. See D. Farrell v. Warren Cnty. Dep’t of
Soc. Servs., 59 Va. App. 342, 347 (2012). However, at the permanency planning hearing, it only
had to prove that adoption was in the children’s best interests by a preponderance of the evidence.
See Boatright v. Wise Cnty. Dep’t of Soc. Servs., 64 Va. App. 71, 79 (2014); Padilla v. Norfolk
Div. of Soc. Servs., 22 Va. App. 643, 645 (1996).
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The circuit court previously considered the circumstances as of November 19, 2018, when it
heard the evidence and argument regarding the foster care goal of adoption. At the termination
hearing, the circuit court considered the circumstances as of November 27, 2019, when it heard the
evidence and argument regarding the termination of parental rights. The circuit court’s letter
opinion details the new evidence it considered and was presented at the termination hearing, such as
mother’s and father’s current circumstances and the children’s well-being. In addition, the focus on
relative placement at the permanency planning hearing was on the maternal grandmother, but the
focus on relative placement at the termination hearing was on the parents’ adult child. Therefore,
the causes of action were different, and res judicata, or claim preclusion, does not apply.
The Department also argues that the parents are estopped from raising their current
arguments regarding the termination of their parental rights because they did not ask for the children
to be returned to them previously when the foster care goals of adoption were approved, nor did
they ask for additional services; therefore, the Department asserts that they cannot raise those issues
now. “Issue preclusion, also known as collateral estoppel, precludes ‘parties to the first action and
their privies’ from relitigating ‘any issue of fact actually litigated and essential to a valid and final
personal judgment in the first action.’” Lane, 297 Va. at 654 (emphasis omitted) (quoting Funny
Guy, LLC, 293 Va. at 142).
The circuit court entered the termination orders on June 29, 2020. On March 16, 2020, in
response to the COVID-19 global pandemic, the Chief Justice of the Supreme Court of Virginia
declared a judicial emergency at the request of the Governor, as authorized by Code
§ 17.1-330(A), and tolled all case-related deadlines for filings in the district and circuit courts.
See Order Declaring A Judicial Emergency In Response to COVID-19 Emergency (Mar. 16,
2020). By orders dated March 27, 2020, April 22, 2020, May 6, 2020, June 1, 2020, and June
22, 2020 (collectively “the Judicial Emergency Orders”), the Chief Justice extended the period of
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judicial emergency. The Judicial Emergency Orders provided that case-related deadlines for
filings in the district and circuit courts were tolled under Code § 17.1-330(D), for the duration of
the orders. See Order Extending Declaration of Judicial Emergency (Mar. 27, 2020); Third
Order Extending Declaration of Judicial Emergency (Apr. 22, 2020); Fourth Order Modifying
and Extending Declaration of Judicial Emergency (May 6, 2020); Fifth Order Modifying and
Extending Declaration of Judicial Emergency (June 1, 2020); Sixth Order Extending Declaration
of Judicial Emergency (June 22, 2020).
By order of July 8, 2020, the Chief Justice again extended the Declaration of Judicial
Emergency, but ordered that “beginning on July 20, 2020, for cases in the district and circuit
courts, there shall be no further tolling of statutes of limitation or other case-related deadlines.”
Seventh Order Extending Declaration of Judicial Emergency (July 8, 2020). “Deadlines
regarding filings made pursuant to Part Five A of the Rules of the Supreme Court of Virginia
with the clerk of the circuit court are no longer tolled.” Id.
Thus, the sixty-day period within which to file the transcript from the November 27, 2019
circuit court hearing recommenced on July 20, 2020. See id.; Rule 5A:8(a) (“The transcript of any
proceeding is a part of the record when it is filed in the office of the clerk of the trial court no
later than 60 days after entry of the final judgment.”). The transcript was due on September 18,
2020, but it was filed late on October 26, 2020, and is, therefore, not part of the record.
Accordingly, we are unable to determine whether the parents were relitigating the same factual
issues in the permanency planning hearing and the termination hearing. Thus, we will not consider
the Department’s arguments regarding collateral estoppel. “In the absence [of a sufficient record],
we will not consider the point.” Dixon v. Dixon, 71 Va. App. 709, 716 (2020) (quoting
Robinson v. Robinson, 50 Va. App. 189, 197 (2007) (alteration in original)).
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Termination of parental rights
Mother and father argue that the circuit court “erred in finding reasonable and appropriate
efforts were made by the [Spotsylvania County] Department of Social Services when ordering
termination” under Code § 16.1-283(B) and (C)(2). Mother and father also assert that the circuit
court erred in finding that termination of their parental rights was in the children’s best interests.
“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)).
The circuit court terminated mother’s and father’s parental rights under Code
§ 16.1-283(B) and (C)(2). 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.
Mother and father argue that the circuit court erred in finding that the Department made
reasonable and appropriate efforts to rehabilitate them. Mother and father emphasize that the
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Department admitted that it did not provide any services to them after the children were removed
in June 2017.
“Code § 16.1-283(B) requires only that the circuit court consider whether rehabilitation
services, if any, have been provided to a parent. Nothing in Code § 16.1-283 or the larger
statutory scheme requires that such services be provided in all cases as a prerequisite to
termination under subsection B.” Eaton v. Washington Cnty. Dep’t of Soc. Servs., 66 Va. App.
317, 327-28 (2016) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 268
(2005)). “Subsection B does not create specific time frames, ‘nor does it mandate that a public
or private agency provide any services to a parent after the child enters foster care.’” Toms, 46
Va. App. at 269 (quoting Kate D. O’Leary, Termination of Parental Rights in Virginia, 17 J. Civ.
Litig. 17 (2005)).
This Court’s opinion in R. Whitmer, Record Nos. 0083-19-2, 0084-19-2, 0085-19-2, and
0086-19-2, and the circuit court’s letter opinion detail the numerous services offered to the
family by the Department. The circuit court found that “when given the chance by [the
Department] to address the underlying substance abuse,” the parents refused, and substance
abuse was “a major contributor to the events of June 2017,” which caused the children to enter
foster care. The circuit court noted that despite the child protective orders, the Department
“remained committed to maintaining the relationship between the children and their parents” and
offered supervised visitations; however, mother and father attended less than a third of the
possible visits. The circuit court concluded that mother and father “failed to demonstrate that
they were taking [the Department’s] rehabilitative efforts seriously,” and their “ambivalence
towards the supervised visitations along with the Protective Order violation demonstrated the
parents’ lack of respect for the rehabilitative process and the gravity of the situation.” Both
mother and father offered excuses about their past conduct. The record supports the circuit
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court’s finding that despite all the services offered, mother and father did not substantially
remedy the conditions that led to the children’s neglect.
“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 v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 319 (2013) (quoting Logan,
13 Va. App. at 128). “‘[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 children had been in foster care for
approximately two and a half years. One child had been diagnosed with attention deficit
hyperactivity disorder (ADHD) and was “receiving daytime treatment at school to help address
behavioral trouble.” Another child was diagnosed with ADHD and depression. All the children
received therapy “to help them cope with their neglect.” Meanwhile, mother and father had
made “no serious attempts to regain custody,” even after the child protective order expired in
March 2019. “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 (quoting Kaywood v. Halifax Cnty. Dep’t of Soc.
Servs., 10 Va. App. 535, 540 (1990)).
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Based on the record, the circuit court did not err in terminating mother’s and father’s
parental rights under Code § 16.1-283(B) and finding that termination was in the children’s best
interests.5
Relative placement
Mother and father contend that the circuit court “erred in refusing to transfer custody” of
two of their children to their adult daughter, who was “a willing and able relative.”
Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to a person with a legitimate interest.” Code § 16.1-283(A). “This Court has held that
this provision obligates [DSS] ‘to produce sufficient evidence so that the court may properly
determine whether there are relatives willing and suitable to take custody of the child, and to
consider such relatives in comparison to other placement options.’” Castillo, 68 Va. App. at 567
(quoting Brown v. Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 217 (2004)). Accord
Hawthorne v. Smyth Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 136 (2000); Logan, 13
Va. App. at 131.
“Although mandatory, this obligation is limited.” Castillo, 68 Va. App. at 567. We have
never “suggest[ed] that the Department has a duty in every case to investigate the home of every
relative of the children, however remote, as a potential placement.” Sauer v. Franklin Cnty.
Dep’t of Soc. Servs., 18 Va. App. 769, 771 (1994). Instead, our precedent establishes that the
5
“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 and
father’s parental rights under Code § 16.1-283(B), we, therefore, do not need to reach the
question of whether mother’s and father’s parental rights should also have been terminated under
Code § 16.1-283(C)(2).
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statutory prerequisite is satisfied when the relative testifies before the circuit court, so that it may
consider the suitability of placing the child with that relative, as compared with other placement
options. See Castillo, 68 Va. App. at 568 (trial testimony of “several relatives” and evidence of
Department’s investigation provided circuit court with “ample evidence” to consider relative
placements); Brown, 43 Va. App. at 218 (statute satisfied where grandmother “testified at the
hearing and informed the court of her ‘suitability and willingness’ to take [minor] into her
custody); Hawthorne, 33 Va. App. at 139 (statute satisfied where the trial court heard testimony
of father’s aunt concerning her willingness and suitability for placement before it ordered the
termination of his parental rights).
Here, mother’s and father’s adult daughter testified at the circuit court hearing. Mother
and father rely on her testimony, as well as the Department’s evidence at trial, to support their
argument that the circuit court erred in terminating their parental rights, as opposed to awarding
custody of two of their children to their adult daughter. However, as discussed above, the
transcript of the circuit court hearing was not timely filed and, therefore, is not part of the record
on appeal. Rule 5A:8. We find that the transcript from the circuit court hearing is indispensable
to a determination of the parents’ third assignment of error on appeal. “If . . . the transcript is
indispensable to the determination of the case, then the requirements for making the transcript a
part of the record on appeal must be strictly adhered to. This Court has no authority to make
exceptions to the filing requirements set out in the Rules.” Shiembob v. Shiembob, 55 Va. App.
234, 246 (2009) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)); see also Bay v.
Commonwealth, 60 Va. App. 520, 528-29 (2012). Mother and father assert that the circuit court
erred by refusing to consider their adult daughter as a relative placement for two of their
children, but they did not provide this Court with a sufficient record to review their arguments.
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“The burden is upon the appellant[s] to provide [the appellate court] with a record which
substantiates the claim of error. In the absence [of a sufficient record], we will not consider the
point.” Dixon, 71 Va. App. at 716 (second and third alterations in original) (quoting Robinson,
50 Va. App. at 197); see also Rule 5A:8(b)(4)(ii). We conclude that a transcript from the circuit
court hearing or a written statement of facts in lieu of a transcript from that hearing is
indispensable to resolving mother’s and father’s third assignment of error.
CONCLUSION
For all of the foregoing reasons, the circuit court’s ruling is affirmed. However, we find
that there are typographical errors in several of the final orders. Specifically, the orders
terminating mother’s parental rights to the four children and father’s parental rights to the
youngest child, D.A.W., mistakenly state that the circuit court terminated the parental rights
under Code § 16.1-283(C)(1), instead of under Code § 16.1-283(B). In addition, in paragraph
three of the order terminating father’s parental rights to the youngest child, D.A.W., the order
mistakenly states mother’s name – as opposed to father’s name. We remand the matters to the
circuit court for it to correct the typographical errors in these orders.
Affirmed and remanded.
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