Tonya J. Cogar, s/k/a Tonya Lopez Cogar v. Shenandoah Valley Department of Social Services ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Alston and AtLee
UNPUBLISHED
Argued by teleconference
TONYA J. COGAR, S/K/A
TONYA LOPEZ COGAR
MEMORANDUM OPINION* BY
v. Record No. 0673-17-3 JUDGE RICHARD Y. ATLEE, JR.
DECEMBER 27, 2017
SHENANDOAH VALLEY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
Shelly R. James (John Elledge & Associates, on brief), for
appellant.
James B. Glick; Eric D. Swortzel, Guardian ad litem for the minor
children (Vellines, Glick & Whitesell, P.C., on brief), for appellee.
Tonya J. Cogar appeals a decision of the Circuit Court of Augusta County terminating
her parental rights to two of her children. We affirm.
I. BACKGROUND
The facts and legal proceedings in this case unfolded over the course of approximately
two years. In April 2015, the Shenandoah Valley Department of Social Services (“DSS”)
removed two children from Tonya J. Cogar (“mother”): her daughter “A.” (born in 2010) and
her son “M.” (born in 2013). In April 2016, the Juvenile and Domestic Relations District Court
of Augusta County (“the J&DR court”) terminated mother’s parental rights to those children.
Mother appealed that decision to the Circuit Court of Augusta County (“the circuit court”),
which terminated her parental rights in April 2017. Mother now appeals that decision.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
We view the evidence in the light most favorable to the party that prevailed below, and
draw all reasonable inferences from the evidence in that party’s favor. Boatright v. Wise Cty.
Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 (2014). Here, DSS prevailed in
the circuit court. The facts were as follows.1
DSS removed the children in April 2015. The circuit court summarized the issues
precipitating that removal:
[T]he reason for the removal was that Cogar had taken the children
to Augusta Health with “concerns that [they had been] ‘injected
with GPS tracking devices,’ and that they were ‘left with a
pedophile and the Mexican Cartel.’” In addition, Cogar
“apparently expressed concerns . . . that [the children] had been
‘injected with needles that were still in their legs, and the children
[had] microchips implanted in them.’” Cogar reported that the
children’s father had “wired the house” and that he was “directing
water toward the flooring within the home so as to soften the
flooring and cause an explosion . . . with the electrical wiring
beneath the residence.”
(Citations omitted) (quoting psychological evaluation (all but first alteration in original)
(referring to mother as “Cogar”) (quoting foster care service plan)). Mother reported to the
evaluating psychologist previous diagnoses of attention deficit disorder and bipolar disorder.
She also confirmed that, near the time the children were removed, Augusta Health diagnosed her
as “delusional.”
Unable to locate a relative with whom to place the children, DSS placed them in a foster
home. The foster care service plan developed by DSS, and approved by the J&DR court,
included requirements that mother attend scheduled visitations with the children, maintain stable
housing, maintain stable employment, “report any changes in her whereabouts” and contact
information, cooperate with the “Promoting Safe and Stable Families” program, and “attend,
1
Unless otherwise indicated, the quotations that follow are from the circuit court’s
detailed letter opinion, issued May 8, 2017.
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participate in, and successfully complete any services recommended from the [psychological]
evaluation.” The psychological evaluation recommended “participation in psychiatric treatment
as soon as possible,” “individual counseling or psychotherapy,” and “participation in an intensive
parenting education program.” The evaluation also observed that mother had “a history of a
documented bipolar disorder, yet she has not been taking any mood stabilizing medication
recently.”
DSS arranged a supervised visitation schedule for mother, but mother was frequently late
for visits, and missed several outright. Within six months of the removal of her children, mother
quit her job as a nurse’s aide and moved to West Virginia. When that occurred, “the weekly
[visitation] schedule was reduced to every alternate week, at [mother]’s request.” After June
2016, visitation ceased entirely.2
DSS often had difficulty finding mother, who lived in multiple locations over a short
span of time. She acknowledged failing “to keep [DSS] informed of her physical residence”
after moving to West Virginia in 2015. Even her address at the time of trial was unclear:
[W]hen asked about her current address, [mother] initially
responded, with some lack of certainty, that she lived . . . in West
Virginia. After the question was asked multiple times, and after
[mother] evaded answering it, she testified that she had recently
returned to Virginia and finally said, “Well, I am homeless.”
Pressed further, she said that she was currently staying with
“Poppy,” whose name, she believes, is “Valentine—maybe.” She
has been with him for approximately three weeks (she was not
certain of the time), at a house somewhere in Stuarts Draft (she
could not be more specific), and she did not know the street or post
office address. Asked whether she intended to remain in Virginia,
her response was that she “would like to—maybe.” She testified
2
The visits ceased for what appear to have been several reasons, among them mother’s
deteriorating relationship with DSS and the absence of any legal requirement that DSS provide
mother with visitation, once the J&DR court terminated mother’s parental rights in April 2016.
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that she is seeking employment and housing, but she offered no
details of her efforts or prospects for success in either endeavor.
(Footnote omitted).
Mother’s employment status was similarly unsatisfactory. In July of 2015, she left her
job at Shenandoah Nursing Home, where she had worked for two-and-a-half years. She moved
that October to West Virginia, remaining there until apparently moving back to Virginia just
before the 2017 trial. During her time in West Virginia, she never worked, notwithstanding her
testimony that her CNA license remained valid.
Mother did not participate in psychiatric treatment, although she testified that her family
doctor prescribed medication that she was taking at the time of the termination proceeding. (The
record does not disclose what that medication was.) Mother reported attending some counseling
sessions in West Virginia, but DSS could not confirm this because mother provided no contact
information for the provider. No evidence was presented that mother completed the “Promoting
Safe and Stable Families” program. Mother participated in two sessions of a fifteen-session
parenting program, then moved to West Virginia. She testified that she was ineligible for
participation in a parenting program in West Virginia.
II. ANALYSIS
Mother assigns the following error: “The trial court erred in terminating
Appellant/Mother’s parental rights because the condition that led to the children going into foster
care had been remedied and because DSS’s behavior in this case was ‘good cause’ for her failure
to maintain a relationship with her children.”
A. Standard of 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.” Farley v.
Farley, 9 Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). That presumption is rooted in a circuit
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court’s “broad discretion in making the decisions necessary to guard and to foster a child’s best
interests.” Id. at 328, 387 S.E.2d at 795. A circuit court’s decision “based on evidence heard ore
tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.”
Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).
B. Applicable Statute
The circuit court found that termination of mother’s parental rights was in the best
interests of the children, and terminated those rights pursuant to Code § 16.1-283(C)(1) and
(C)(2). A court may terminate parental rights under subsection (C)(1) if it finds, by clear and
convincing evidence, that:
The parent or parents have, without good cause, failed to maintain
continuing contact with and to provide or substantially plan for the
future of the child for a period of six months after the child’s
placement in foster care notwithstanding the reasonable and
appropriate efforts of social, medical, mental health or other
rehabilitative agencies to communicate with the parent or parents
and to strengthen the parent-child relationship.
A court may terminate parental rights under subsection (C)(2) if it finds, by clear and convincing
evidence, that:
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.
The subsections provide different mechanisms and justifications for termination. Subsection
(C)(1) addresses a parent’s failure to maintain contact with a child or to plan for that child’s
future; subsection (C)(2) addresses a parent’s failure to remedy the conditions that caused a child
to enter foster care, or required the continuation of the child’s stay in foster care. “[E]ach
subsection, although similar in nature, is written as a distinct and grammatically independent
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provision of the statute” and the different subsections “set forth 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). Thus here, although the
circuit court made findings that termination was supported under both subsections, a finding as
to either subsection alone would have justified termination. For the reasons we outline below,
we find that termination was justified under subsection (C)(2). In light of that finding, we need
not address whether termination was justified under subsection (C)(1).
C. Preservation of Error
To begin, we address DSS’s argument that mother failed to preserve the errors she now
alleges on appeal and that this failure violates Rule 5A:18 and requires dismissal of her appeal.
See Rule 5A:18 (stating, in part, that “[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling”). Mother filed no transcripts in this case. Rather, she filed in the circuit court a copy of
the circuit court’s letter opinion, designating it as her “Statement of Facts.” She included with
this pleading a two-page document containing a summary of the arguments she had made at trial.
She directs our attention to these two pages as the location of the preservation of her assigned
error.
The problem with this pleading is that it was filed outside the deadline contained in Rule
5A:8. Pursuant to Rule 5A:8(c), “[a] written statement of facts, testimony, and other incidents of
the case becomes a part of the record when: (1) within 55 days after entry of judgment a copy of
such statement is filed in the office of the clerk of the trial court.” The circuit court entered
termination orders on April 10, 2017. Fifty-five days from that date would be June 4, 2017.
That being a Sunday, the copy of mother’s written statement of facts was due to be filed on or
before Monday, June 5, 2017. Although the certificate mother included when she filed the
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statement of facts indicates that the pleading was filed June 5, 2017, the circuit court’s clerk’s
office stamp, and handwritten details written onto that stamp, show that it was actually filed in
the clerk’s office on June 9, 2017. Because this filing comes outside the 55-day deadline, we
cannot consider the two-page recitation of mother’s arguments or the attached copy of the letter
opinion.
However, the circuit court’s letter opinion is included elsewhere in the record. For that
reason, we can and do consider the letter opinion, and we treat it as a statement of facts for
purposes of this appeal. Rule 5A:18’s contemporaneous objection requirement serves “to inform
the trial judge of the action complained of in order to give the judge the opportunity to consider
the issue and to take timely corrective action, if warranted, in order to avoid unnecessary appeals,
reversals and mistrials.” Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885,
886 (1992). We find that the circuit court’s letter opinion clearly addresses the arguments
mother now raises on appeal. Thus mother’s brief complies with Rule 5A:18, and we consider
her arguments on the merits.
D. Code § 16.1-283(C)(2)
Mother appears to misunderstand both the language of the termination statute, and the
circuit court’s application of that statute in this case, as evidenced by the following assertion at
oral argument:
[T]he court has to find as a matter of law, based on clear and
convincing evidence, that there’s been . . . “a failure to remedy the
conditions that led to the placement” in foster care. While perhaps
it would be easier, and maybe even better, if the statute were
worded differently, the statute does not say “the conditions that
continue to keep” the children in foster care. The statute plainly
says “fail to remedy conditions that led to” the placement.
Oral Argument Audio at 12:57 to 13:38 (Nov. 29, 2017). In fact, Code § 16.1-283(C)(2) says
precisely what counsel for mother claims it does not, namely that the termination may not occur
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unless it is proven that the “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.” (Emphasis added). When this was pointed out to mother’s counsel, she
responded: “Our position is that, that, that first sentence, first part, ‘to remedy substantially the
conditions that led to’ is what the judge found in this case.” Oral Argument Audio at
15:30-15:48 (Nov. 29, 2017). This assertion is belied by the opinion letter of the circuit court,
which states: “It is not so much [mother]’s failure to remedy the condition which led to the
removal of the children; rather, it is her unwillingness to do the things that were not
unreasonably required of her to prevent the continuation of the removal.” We agree with this
conclusion.3
Shortly after DSS removed the children, mother moved out of state. As the circuit court
noted:
Whatever benefit she might have derived from relocating to West
Virginia, she acknowledged that the consequences included (a) her
leaving her employment, (b) her leaving her residence here,
(c) complicating her ability to work with the Department to regain
custody of her children, and (d) a significant reduction in the
frequency of her visits.
The circuit court went on to observe that mother was “by her own assessment, homeless, or, at
best, living with a man whose name she does not know, in a house which she cannot locate, for a
period she cannot project; that is hardly an ideal situation.”
3
We also observe that mother’s assignment of error appears to reference only her
preferred portion of subsection (C)(2), by asserting that “the condition that led to the children
going into foster care had been remedied.” The assignment of error does not address the
language in subsection (C)(2) about “the conditions which . . . required continuation of the
child’s foster care placement.” Notwithstanding mother’s failure to mention this portion of
subsection (C)(2) in her assignment of error, we address it in this opinion, given its centrality in
the circuit court’s reasoning.
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Mother failed to keep DSS adequately informed of her whereabouts, did not obtain
adequate psychiatric treatment or psychological counseling, did not complete a parenting
program, remained unemployed throughout the majority of the time the case was pending, and
was sporadic in her visitation. These failures were of her own making. It is both unfair to the
children, and contrary to the controlling statute, that mother be given an indefinite period within
which to remedy “the conditions which . . . required continuation of the child[ren]’s foster care
placement.” Code § 16.1-283(C)(2). Her failure to do so requires affirmance.
III. CONCLUSION
The circuit court’s decision to terminate mother’s parental rights under Code
§ 16.1-283(C)(2) was supported by clear and convincing evidence, was in the best interests of
the children, and was not plainly wrong.
Affirmed.
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