Kimberly N. Willoughby v. Albemarle County Department of Social Services ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Alston and Decker
Argued at Richmond, Virginia
UNPUBLISHED
KIMBERLY N. WILLOUGHBY
MEMORANDUM OPINION* BY
v. Record No. 1619-17-2 JUDGE ROBERT J. HUMPRHEYS
AUGUST 28, 2018
ALBEMARLE COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
(Holly R. Vradenburgh; Lunsford & Vradenburgh, LLC, on brief),
for appellant. Appellant submitting on brief.
Amanda E. B. Farley, Senior Assistant County Attorney
(B. Stephanie Commander, Guardian ad litem for the minor children;
Albemarle County Attorney’s Office, on brief), for appellee.
Kimberly Willoughby (“Willoughby”) appeals an order of the Circuit Court of Albemarle
County (“circuit court”) terminating her parental rights of her four minor children. Specifically,
Willoughby argues that “[t]he trial court erred as a matter of law by referencing information
regarding the appellant’s experience with the criminal justice system collected from a previous,
unrelated hearing in the announcement of its judgment.” And that “[t]he trial court erred by not
finding that the appellant was afforded a reasonable amount of time under Virginia Code
§ 16.1-283(B)(2) to correct the conditions in which the neglect occurred before terminating her
residual parental rights.”
“When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 (2014)
(quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). So viewed,
the evidence is as follows.
Willoughby’s four minor children, H.N., J.W., D.W., and S.B., were removed from her
home by the Albemarle County Department of Social Services (“DSS”) in early 2016 following
a finding by the Albemarle County Juvenile & Domestic Relations District Court (“JDR court”)
that the children were being abused and neglected. Two months after the removal, a
dispositional hearing was held, and a foster care service plan was entered, with a goal of “return
to own home.” Meanwhile, the children remained in foster care with weekly supervised visits.
Another hearing four months later reiterated the goal of return to own home, with the children
still in foster care. DSS recommended services for Willoughby including individual therapy, a
substance abuse evaluation, and a psychological evaluation.
In February of 2017, the JDR court heard a hearing on DSS’s petition for a permanency
planning hearing with a changed goal of adoption and the termination of Willoughby’s parental
rights. The JDR court terminated these rights and approved the plan goal of adoption.
Willoughby appealed to the circuit court, which upheld the termination and adoption order.
Willoughby now appeals that decision to this Court.
Willoughby argues that the circuit court erred when, during the termination hearing, it
referred to Willoughby testing positive for cocaine on the date of sentencing for an unrelated
criminal forgery charge, over which the the same circuit court judge also presided. “[T]he
admissibility of evidence is within the discretion of the trial court and [an appellate court] will
not reject the decision of the trial court unless [it] find[s] an abuse of discretion.” Midkiff v.
Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). “Only when reasonable jurists
could not differ can we say an abuse of discretion has occurred.” Thomas v. Commonwealth, 44
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Va. App. 741, 753, 607 S.E.2d 738, 743 adopted upon reh’g en banc, 45 Va. App. 811, 613
S.E.2d 870 (2005) (internal quotations and citations omitted). On appeal, “[t]he burden is on
appellant to show that the trial court’s admission of evidence constitutes reversible error.” Dunn
v. Commonwealth, 20 Va. App. 217, 220, 456 S.E.2d 135, 136 (1995).
Although the same judge heard both the criminal matter and the termination of parental
rights matter associated with Willoughby, all the evidence relating to the criminal matter that the
circuit court referenced was admitted at the termination of parental rights hearing through
Willoughby’s own evidence. In fact, Willoughby herself testified regarding her experience with
the criminal justice system. Willoughby also testified that she was currently incarcerated after
being convicted of “[d]riving with suspended, [sic] falsifying myself to a police officer and
falsely signing two tickets.” When asked about her drug tests after leaving a substance abuse
and mental health center, Willoughby said they are all clean “except for the one that Judge
Higgins gave me when she put me in jail.” When counsel for DSS asked Willoughby about her
cooking cocaine for her boyfriend and testing positive on her court date, Willoughby said it was
“[b]ecause I had in [sic] my hands, and [cocaine] goes through the pores of your skin.”
Furthermore, while the circuit court judge questioned Willoughby about her drug use at the end
of cross-examination, the following exchange occurred without objection:
THE COURT: and on being positive for cocaine, as I – with the
test about how you had cooked the crack, you made crack and you
got it into your pores. Am I recalling correctly?
THE WITNESS: Yeah. You can touch it. If you touch it in your
hands, it absorbs in your system.
THE COURT: And this was after you had been in [the treatment
center]?
THE WITNESS: Yes, ma’am.
THE COURT: And the person that you were cooking it for was
Lawrence [Willougby’s boyfriend], correct?
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THE WITNESS: I was cooking it in general.
THE COURT: But didn’t you testify you were cooking for
Lawrence? Mom would not let me come home, and I didn’t have a
place to go, so I went to Lawrence. He didn’t know how to cook
his own cocaine.
THE WITNESS: He knew how to cook his own cocaine, I’m sure.
I don’t know why I said that. I was intoxicated the day of the
court, Your Honor. You know that. You had me drug-tested.
Therefore, Willoughby made multiple admissions regarding her unrelated criminal case. These
admissions were admitted into evidence without objection. Accordingly, the record indicates
that the circuit court made references to Willoughby’s own admissions about the criminal case.
Willoughby made these admissions as part of her testimony during the termination of parental
rights hearing—they were admitted into evidence and ripe for consideration by the circuit court
as the trier of fact. Therefore, the circuit court did not err when it considered the fact that
Willoughby tested positive for cocaine on the date of her sentencing hearing for criminal forgery.
Willoughby additionally argues that the circuit court erred in finding she was afforded a
reasonable time to correct conditions of neglect. We disagree.
Willoughby’s residual parental rights were terminated pursuant to Code § 16.1-283(B).
Before residual parental rights can be terminated under Code § 16.1-283(B), a court must, among
other things, find by clear and convincing evidence that 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 within a reasonable period of time. Code
§ 16.1-283(B). “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. Code
§ 16.1-283(B). However, “Code § 16.1-283(B) requires only that the circuit court consider
whether rehabilitation services, if any, have been offered to a parent. Nothing in Code
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§ 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.” Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 268, 616 S.E.2d 765, 771 (2005). “The Department is not required ‘to force its
services upon an unwilling or disinterested parent.’” Logan v. Fairfax County Dep’t of Human
Dev., 13 Va. App. 123, 130, 409 S.E.2d 460, 463-64 (1991) (quoting Barkey v. Commonwealth,
2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986)).
Here, the children were removed from Willoughby’s care on February 11, 2016. The
removal hearings that are the subject of this appeal were held on June 19, 2017 and June 30,
2017, a year and four months after the children were removed. In that time, Willoughby was
offered multiple programs and services to substantially correct the behavior that led to the
removal of her children. Willoughby was given a substance abuse evaluation, a psychological
evaluation, referred to individual therapy once a week, referred to inpatient treatment at the Life
Center of Galax facility, referred to family treatment court, and assigned a parent mentor to help
her with transportation since she did not have a driver’s license. Despite all of these
opportunities, Willoughby was routinely unsuccessful in taking advantage of them. Willoughby
left the Galax treatment program before she was supposed to be released—she claimed she was
having an allergic reaction to the medications but never provided DSS with medical
documentation to substantiate her claim. Additionally, Willoughby moved frequently, making it
difficult for DSS to provide consistent transportation. Willoughby was offered work release, but
was terminated from the program because she came back from work intoxicated from consuming
two bottles of NyQuil. When questioned about her motives for drinking the NyQuil, Willoughby
said that she intended to harm herself. Moreover, Willoughby failed to enter the Family
Treatment Court program recommended by DSS. She was also ordered by DSS to wear a
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SCRAM1 bracelet for nine months for alcohol monitoring. In that time, there were at least six
violations. Furthermore, while the children were in foster care, Willoughby tested positive for
cocaine, oxycodone, and THC—she even appeared in court on a criminal matter while
intoxicated, which caused the court to revoke her bond. Once, Willoughby arrived drunk for a
supervised visit with the children. And, as the circuit court pointed out, Willoughby was
consistently involved in abusive and unhealthy relationships with men while the children were in
her care.
Finally, Willoughby herself acknowledged that the conditions which resulted in neglect
or abuse could not be substantially corrected or eliminated within a reasonable period of time.
When asked when she would be ready to get her children back, Willoughby said “[m]aybe a year
or so” from the date of the June 30th hearing. Accordingly, although it appears Willoughby did
make some efforts to correct the conditions which resulted in the neglect that led to the
children’s removal, the record supports the circuit court’s finding that it was not reasonably
likely that she would remedy the issues that resulted in the children’s foster care placement
within a reasonable time. While DSS provided Willoughby with a number of services, she
declined to take advantage of them and neither DSS nor the circuit court could force her to do so.
Logan, 13 Va. App. at 130, 409 S.E.2d at 463-64.
For the foregoing reasons, the judgment of the circuit court terminating Willoughby’s
parental rights is affirmed.
Affirmed.
1
SCRAM is an acronym for Secure Continuous Remote Alcohol Monitoring. The
SCRAM bracelet is a monitoring device worn around the ankle which measures blood alcohol
content through the wearer’s skin.
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