Deborah Swarray v. Alexandria Department of Community and Human Services ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Ortiz and Senior Judge Clements
DEBORAH SWARRAY
MEMORANDUM OPINION*
v. Record No. 0630-22-4 PER CURIAM
JUNE 27, 2023
ALEXANDRIA DEPARTMENT OF COMMUNITY AND
HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
James C. Clark, Judge
(Adam D. Elfenbein; Elfenbein Law PLLC, on briefs), for appellant.
(Joanna C. Anderson; Jill A. Schaub; Matthew W. Greene, Special
Assistant City Attorney; Luis E. Chinchilla, Guardian ad litem for
the minor children; Greene Law Group PLLC, on brief), for
appellee.
Deborah Swarray (mother) appeals the circuit court’s orders terminating her parental
rights to her two minor children under Code § 16.1-283(C)(2) and approving the foster care goal
of adoption. Mother argues that the circuit court erred by finding that the Alexandria
Department of Community and Human Services (the Department) proved by “clear and
convincing evidence that [she] failed to substantially remedy the conditions which led to or
required the continuation of the children’s foster care placement.” She also asserts that the
circuit court erred in finding that termination of her parental rights was in the best interests of the
children. After examining the briefs and record in this case, the panel unanimously holds that
oral argument is unnecessary because “the appeal is wholly without merit.” Code
§ 17.1-403(ii)(a); Rule 5A:27(a). We find no error and affirm the circuit court’s judgment.
*
This opinion is not designated for publication. See Code § 17.1-413.
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)). Here, the Department was the prevailing party.
Mother and Russell Clinton Smith, Jr. (father) are the biological parents to R.S. and S.S.,
the two children who are the subject of this appeal.2 In January 2020, the Department received a
report that mother gave birth to R.S., who was born substance exposed; both he and mother
tested positive for cocaine.3 Mother agreed to enter a 30-day inpatient treatment program. The
Department entered into a safety plan with father, who agreed to care for R.S. when he was
released from the hospital. The safety plan specified that mother could not have unsupervised
contact with R.S.
In early March 2020, after her release from inpatient treatment, mother agreed to submit
to a drug screen; she tested positive for cocaine. The Department also learned that the parents
had violated the safety plan when father went to the grocery store and left R.S. alone with
mother. On March 9, 2020, the City of Alexandria Juvenile and Domestic Relations District
Court (the JDR court) entered an emergency removal order and placed R.S. in the Department’s
1
The record in this case was sealed. Nevertheless, the appeal requires unsealing relevant
portions of the record to resolve the issues mother has raised. “To 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
Father also appealed the circuit court’s orders terminating his parental rights to R.S. and
S.S. and approving the foster care goal of adoption. See Smith v. Alexandria Dep’t of Cmty. &
Hum. Servs., No. 0894-22-4 (Va. Ct. App. Jun. 27, 2023).
3
During its investigation, the Department learned that mother had an older child; Fairfax
County had removed the child from her care because of her substance abuse, and her parental
rights to that child were voluntarily terminated in 2014.
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custody. After entering a preliminary removal order, the JDR court adjudicated R.S. to be
abused or neglected and entered a dispositional order, which father appealed.
The circuit court also found that R.S. was abused or neglected but ordered that he be
returned to father’s custody with a protective order, prohibiting mother from having
unsupervised contact with R.S. On September 9, 2020, the Department returned R.S. to father’s
custody. Four days later, the Department made an unannounced visit to the home. Father was
not home. R.S. was with mother and another individual who had not been approved to supervise
mother’s visits. Due to the violation of the circuit court’s orders and the lack of relative
placement options, the Department removed R.S. from the home and placed him in foster care.
Following the entry of the emergency and preliminary removal orders, the JDR court adjudicated
that R.S. was abused or neglected and entered a dispositional order.
Approximately six weeks after R.S. entered foster care, mother gave birth to S.S., who
was born premature and substance exposed. Both mother and S.S. tested positive for cocaine.
Considering the family’s history and the removal of R.S., the JDR court entered emergency and
preliminary removal orders for S.S., and the Department placed her with R.S. in the same foster
home. The JDR court subsequently adjudicated that S.S. was abused or neglected and entered a
dispositional order.
After the children entered foster care, the Department established requirements mother
had to complete before she could be reunited with R.S. and S.S. Mother had to participate in
substance abuse and mental health treatment. She also had to submit to random drug screenings.
In the Spring of 2021, mother tested positive for drugs once and two other tests were presumed
positive because “the temperature was not within range for testing.” The Department had
difficulty conducting additional drug screens because mother lost her identification card and
refused a hair follicle test for cultural reasons and an oral swab test due to allergies.
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In addition, the Department referred mother for a parental capacity assessment, which she
completed in 2021. Mother informed the evaluator, Dr. Mohamed Mansaray, of her family
history. When mother was 16 years old, she came to the United States as a refugee from Africa.
But as a young child, rebels had kidnapped her and forced her to become a child soldier in Sierra
Leone. Her captors forced her to use cocaine daily and sexually abused her; she became
pregnant at age ten.
Mother suffered from nightmares and flashbacks from her childhood; she also had trouble
focusing and sleeping. She indicated that she heard and saw things that others did not, but this
stopped after she started taking medication. Mother had started counseling, and even though she
stopped attending, she continued to take her medication. She also reported that she had stopped
using cocaine and had been sober since January 2021. Mother admitted that “stress and sadness”
trigger her substance abuse.
Mother also discussed her relationship with father. Mother reported that father had been
physically and verbally abusive toward her; once, he hit her in the head with a hammer. She
claimed that she had ended their nine-year relationship after the children entered foster care.
At the conclusion of mother’s assessment, Dr. Mansaray opined that mother’s childhood
trauma greatly affected her and her decision-making ability. He diagnosed mother with
post-traumatic stress disorder and “substance use disorder, severe.” Although mother interacted
“appropriately” with R.S. and S.S. and had a “strong desire to be a good parent,” Dr. Mansaray
expressed concern about her stability because she was “early in her recovery” and had not
addressed her history of trauma. She also lacked parenting skills, which admittedly could be
attributed to her childhood, and had “very poor” cognitive functioning. Dr. Mansaray opined
that mother was “at a moderate to high level of risk for child neglect.” Dr. Mansaray
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recommended that mother participate in substance abuse treatment, parenting classes, parenting
coaching, individual psychotherapy, and case management services.
The Department referred mother to a substance abuse therapist, a trauma therapist, and
case management services. Mother felt “overwhelmed” and said there were “too many
services.” She did not complete the case management assessment. In 2021, her participation in
substance abuse treatment was “inconsistent.” She stopped psychotherapy after a few sessions
with the trauma therapist because “it was too much for her.”
The Department also required mother to have stable housing and employment. Mother
and father had lived together in the same home for eight years before the Department’s
involvement. Mother left the home and stayed in a shelter for a while before she moved to a
one-bedroom apartment in March 2021. While the children were in foster care, mother worked
as a home health care worker, but she was unemployed at the time of the circuit court hearing.
The Department also offered weekly supervised visitation and parent coaching to mother.
The Department arranged for transportation for mother to and from her visitations. Although
mother’s interactions with the children improved over time, her visitations never progressed
beyond supervised visits because of her “inconsistency” with substance abuse treatment and drug
screening and her refusal to participate in trauma therapy.
As a result of mother’s failure to comply with the services and address her substance use
and mental health, the JDR court approved the foster care goal of adoption and terminated
mother’s parental rights. Mother appealed to the circuit court.
On March 21, 2022, the parties appeared before the circuit court. The Department
explained its “four areas of concern” with mother’s ability to care for the children, namely
“ongoing mental health and substance abuse issues,” “housing stability issues,” the “lack of
awareness and insight into what brought both children into [foster] care,” and the “history of
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domestic violence between the two parents.” Moreover, the nature and extent of the parents’
relationship was “unclear.”
After the JDR court terminated her parental rights, mother’s participation and
engagement with the Department’s services improved. Mother’s “long history of trauma,”
however, caused her to self-medicate with cocaine when she was stressed. Therefore, the
Department was skeptical that mother could have a “sustained period of sobriety and stability”
and remained concerned that she would revert to self-medicating to cope with the stress of
parenting, employment, and health situations.
The Department presented evidence that R.S. and S.S. had been placed in the same foster
home and were doing well. Both were current with their vaccinations and attended day care
together. The Department explained that it was pursuing adoption because mother had only just
started addressing her “long history of trauma” and substance abuse.
After the Department presented its evidence, mother’s trauma therapist, Dr. Markeya
Jones, testified. Mother started seeing Dr. Jones in the Fall of 2020 but stopped after four weeks
and did not resume therapy until the Fall of 2021, just a few months before the circuit court
hearing. Dr. Jones diagnosed mother with “complex trauma,” resulting from her childhood.
Mother’s coping skills included substance abuse. Dr. Jones noted that mother had “a lot of
flashbacks and thoughts about what happened to her,” and she was “work[ing] through those
moments.” They were focusing on mother’s traumatic history and discussing ways of coping
with stress, other than substance use. Dr. Jones opined that mother required at least six months
of consistent therapy to make progress in addressing her trauma history.
Mother testified about her weekly participation in counseling and substance abuse
treatment; she also continued to take her prescribed medications. After submitting to a drug test
as recently as one month before the circuit court hearing, mother indicated that she had tested
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negative and been “drug-free” for 14 months. Mother emphasized how much she enjoyed
visiting with the children and that she wanted them returned to her.
After hearing all the evidence and arguments, the circuit court considered the length of
time the children had been in foster care and that mother still needed “more time” before she was
able to care for them. Thus, the circuit court found that it was in the children’s best interests to
terminate mother’s parental rights under Code § 16.1-283(C)(2) and approve the foster care goal
of adoption. Mother appeals.
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)).
Mother challenges the circuit court’s orders terminating her parental rights and approving
the foster care goal of adoption.4 The circuit court terminated mother’s parental rights under
Code § 16.1-283(C)(2), which authorizes a court to terminate parental rights if:
4
The Department argues that mother did not preserve her assignments of error because
she did not move to strike the evidence. We disagree. “This Court has held that ‘[c]ounsel may
meet the mandates of Rule 5A:18 in many ways. For instance, counsel may make clear the
ground for [her] objection in a motion to strike the evidence or in closing argument.’” Moncrief
v. Div. of Child Support Enf’t ex rel. Joyner, 60 Va. App. 721, 729 (2012) (quoting Lee v. Lee,
12 Va. App. 512, 515 (1991)). Furthermore, if “a trial court is aware of a litigant’s legal position
and the litigant did not expressly waive such arguments, the arguments remain preserved for
appeal.” Canales v. Torres Orellana, 67 Va. App. 759, 771 (2017) (en banc) (quoting Brown v.
Commonwealth, 279 Va. 210, 217 (2010)). Mother preserved her arguments in her closing
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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.
Mother contends that the Department failed to prove by clear and convincing evidence that she
had failed to substantially remedy the conditions that led to or required the children’s
continuation in foster care.5 She emphasizes that she had made “substantial progress” with her
therapy, and if given more time, she could demonstrate her progress.
“[R]egardless of [which] subsection of Code § 16.1-283 the Department proceeds under,
it must prove each of its allegations by clear and convincing evidence before the . . . court may
terminate a parent’s parental rights to his or her child.” D. Farrell v. Warren Cnty. Dep’t of Soc.
Servs., 59 Va. App. 342, 347 (2012). “We have defined clear and convincing evidence as ‘that
measure or degree of proof which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.’” C.S. v. Va. Beach Dep’t of Soc.
Servs., 41 Va. App. 557, 565-66 (2003) (quoting Gifford v. Dennis, 230 Va. 193, 198 n.1
(1985)). “It is intermediate, being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear
and unequivocal.” Id. at 566 (quoting Gifford, 230 Va. at 198 n.1); see also In re Scott, 297 Va.
166, 185 (2019).
arguments, and the circuit court was well aware of mother’s position challenging the termination
of her parental rights.
5
In mother’s opening brief and reply brief, she also argues that the circuit court violated
her due process rights and the Department failed to provide her with reasonable and appropriate
services. Rule 5A:20(c) requires us to hold that these arguments are waived because they were
not part of mother’s assignments of error. Fox v. Fox, 61 Va. App. 185, 202 (2012).
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“[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, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t
of Soc. Servs., 46 Va. App. 257, 271 (2005)). Mother had a traumatic childhood, which she
occasionally relived through flashbacks. She also had a history of relying on cocaine to
self-medicate when experiencing stress. Although mother had started trauma therapy, her
therapist opined that she required at least six months of consistent therapy to make progress in
dealing with her trauma history. Moreover, mother had not consistently engaged with substance
abuse treatment and case management services until a few months before the circuit court
hearing. Mother was “early in her recovery” and had not demonstrated a “sustained period of
sobriety and stability.”
During the trial, mother argued that she needed “more time to continue to work on her
[parenting] skill set,” especially considering her “massive history of trauma” and “massive
history of self-medicating.” The circuit court acknowledged mother’s request for “more time,”
but also considered that the children had been in foster care for “about 18 months.” In fact, both
children had been in foster care for most of their lives. “Code § 16.1-283(C)(2)’s twelve-month
time limit ‘was designed to prevent an indeterminate state of foster care “drift” and to encourage
timeliness by the courts and social services in addressing the circumstances that resulted in the
foster care placement.’” Thach, 63 Va. App. at 171 (quoting L.G. v. Amherst Cnty. Dep’t of Soc.
Servs., 41 Va. App. 51, 56 (2003)).
The Department had provided mother with numerous services, including referrals for
therapy, substance abuse treatment, and case management services; however, mother only
belatedly committed to trauma therapy and needed at least an additional six months of treatment.
She had not resolved her substance abuse, nor demonstrated sufficient stability. Indeed, despite
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the services she received, she had not progressed from unsupervised visits with the children. “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)).
CONCLUSION
Considering the totality of the circumstances, the circuit court did not err in finding that it
was in the children’s best interests to terminate mother’s parental rights under Code
§ 16.1-283(C)(2) and approve the foster care goal of adoption.
Affirmed.
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