Hameen Irvin v. Roanoke County Department of Social Services ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
UNPUBLISHED
HAMEEN IRVIN
MEMORANDUM OPINION*
v. Record No. 1719-17-3 PER CURIAM
JUNE 12, 2018
ROANOKE COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
J. Christopher Clemens, Judge
(Suzanne Moushegian; Moushegian Law, P.L.L.C., on brief), for
appellant. Appellant submitting on brief.
(Rachel W. Lower, Assistant County Attorney; Kelli C. Boyer,
Guardian ad litem for the minor child, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Hameen Irvin (father) appeals the circuit court’s order terminating his parental rights and
approving the goal of adoption. Father argues that the circuit court erred by (1) terminating his
parental rights to his child pursuant to Code § 16.1-283(C)(2) because the Roanoke County
Department of Social Services (the Department) “did not offer any services to [father] to remedy or
eliminate the conditions which led to the child’s foster care placement and the termination of the
residual parental rights of [father] was not shown to be in the best interest of [the child];” and
(2) approving the foster care plan’s goal of adoption because the Department “did not prove by clear
and convincing evidence that [father] deliberately failed to comply with services recommended by
[the Department], since no services were offered to him” and the goal of adoption was not in the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
best interest of the child. Upon reviewing the record and briefs of the parties, we conclude that the
trial court did not err. Accordingly, we affirm the decision of the trial court.
BACKGROUND
“On appeal, ‘we view the evidence and all reasonable inferences in the light most
favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.
Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.
Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).
Father and Kelly Combs (mother) are the biological parents to the child who was born in
December 2015 and is the subject of this appeal. The child was born substance exposed and
underwent methadone detoxification. Approximately one week after the child’s birth, mother tested
positive for methamphetamine, buprenorphine, and amphetamine. She admitted to using heroin and
methamphetamine two days prior to the child’s birth. After plans to release the child to mother and
his maternal grandmother failed, the City of Salem Juvenile and Domestic Relations District Court
(the JDR court) entered an emergency removal order, and the child was placed in foster care on
December 21, 2015.
At the time of the child’s removal, father was incarcerated at the local jail, awaiting trial on
federal charges. A social worker reviewed the situation with father in jail prior to the child being
placed in foster care. Beginning January 4, 2016, the Department sent several letters to father while
he was incarcerated at the local jail. The Department advised father of the child’s condition,
encouraged father to send pictures and letters, requested a list of possible relative placements, and
encouraged father to participate in substance abuse and parenting classes at the jail. Another social
worker visited father at the jail again on July 7, 2016, and explained the process required by any
relatives interested in becoming a placement option. The social worker also updated father on the
child’s condition and encouraged father to send pictures and letters. Father informed the social
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worker that he was “unable to participate in any substance abuse classes or services” during his
incarceration at the local jail.
On October 3, 2016, the JDR court entered a permanency planning order and approved the
goal of adoption. On October 31, 2016, the JDR court terminated father’s parental rights to the
child pursuant to Code § 16.1-283(C)(1).1 Father appealed both orders.
On February 14, 2017, father pleaded guilty to conspiracy to possess with intent to distribute
100 grams or more of heroin, and the United States District Court sentenced father to ninety months
in prison.
On September 21, 2017, the parties appeared before the circuit court for father’s appeals of
the JDR court’s orders. At the beginning of the hearing, father requested a continuance until he was
released from federal prison, which he told the court was expected to be in December 2019.2 The
circuit court denied the motion. The Department presented evidence that the child has remained
with the same foster family since he entered foster care and that he is in a potential adoption
placement. The social workers testified that although the child had ongoing medical needs, he had
made “significant progress” and was “developmentally normal.” The Department testified that
because of father’s incarceration, he has not met the child. The Department testified about the
efforts it made to update father and encourage him to participate in services offered at the jail. The
Department presented evidence about its investigation of alternative placement options, but none of
the relatives or individuals were viable placement options. Although given the opportunity, father
elected not to testify. After hearing all of the evidence and argument, the circuit court ordered that
father’s parental rights be terminated pursuant to Code § 16.1-283(C) and further found that the
1
The JDR court also terminated mother’s parental rights pursuant to Code
§ 16.1-283(C)(1).
2
Father’s counsel calculated his release date as December 20, 2021.
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termination of father’s parental rights was in the best interests of the child. On October 12, 2017,
the circuit court entered an order reflecting the termination of father’s parental rights pursuant to
Code § 16.1-283(C)(1) and (C)(2) and the approval of the foster care goal of adoption. This appeal
followed.
ANALYSIS
“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 Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190, 717 S.E.2d 811, 814
(2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d
13, 16 (1986)).
Termination of parental rights
Father argues that the circuit court erred by terminating his parental rights pursuant to Code
§ 16.1-283(C)(2) because the Department did not offer him any services and the termination was
not in the best interests of the child.
While the best interests of the child is “the paramount consideration of a trial court” in a
termination proceeding, Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409
S.E.2d 460, 463 (1991), terminations under the subsections of Code § 16.1-283(C) provide
“individual bases upon which a petitioner may seek to terminate residual parental rights,” City of
Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 563, 580 S.E.2d 463, 466
(2003). “Furthermore, each subsection, although similar in nature, is written as a distinct and
grammatically independent provision of the statute.” Id.
Father contends the evidence was insufficient to support the termination of his parental
rights pursuant to Code § 16.1-283(C)(2), but he does not challenge the termination pursuant to
Code § 16.1-283(C)(1). Father’s failure to challenge the termination under Code
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§ 16.1-283(C)(1) renders moot his claim regarding the termination under Code § 16.1-283(C)(2),
and we need not consider it. See Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 8,
614 S.E.2d 656, 659 (2005).
Permanency planning order
Father argues that the circuit court erred by approving the foster care goal of adoption
because the Department “did not prove by clear and convincing evidence that [father] deliberately
failed to comply with services recommended by the [Department], since no services were offered to
him, and that the foster care goal of adoption was not shown to be in the best interest of [the child].”
Contrary to father’s arguments, the Department was not required to offer him services while
he was incarcerated. See Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 163-64,
590 S.E.2d 575, 583 (2004). This Court has held that “[i]t would be patently unreasonable to
require the Department, under such circumstances, to continue to offer services.” Id. “[A]s long as
he was incarcerated, the Department would have had no avenue available to offer [father]
services aimed at assisting him in regaining custody of the child.” Id. at 164, 590 S.E.2d at 583.
Nevertheless, the Department visited father in jail and provided him with updates of the child. The
Department sought father’s input into possible relative placements and encouraged him to
participate in services while he was incarcerated.
Applying the correct standard of preponderance of the evidence, we find that the
Department presented sufficient evidence to support the foster care goal of adoption and that the
circuit court did not err in approving the goal and finding that adoption was in the child’s best
interest.3 At the time of the circuit court hearing, the child had been in foster care for almost his
entire life. Father had never met the child and had been incarcerated since before the child was
3
Proof by a preponderance of the evidence is the appropriate standard for review of
foster care plans. See Padilla v. Norfolk Div. of Soc. Servs., 22 Va. App. 643, 645, 472 S.E.2d
648, 649 (1996).
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born. Father told the circuit court that his expected release date is December 2019, but there was no
evidence that he had appropriate housing or employment upon his release.
“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 Cty. Dep’t of Human Servs., 62 Va. App. 296, 322, 746 S.E.2d 509, 522
(2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394
S.E.2d 492, 495 (1990)).
Based on the record, the circuit court did not err in approving the foster care goal of
adoption.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
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