Jorge Guevara-Martinez v. Alexandria Department of Community and Human Services ( 2024 )

VIRGINIA:
In the Court of Appeals of Virginia on Wednesday the 6th day of November, 2024.
Jorge Guevara-Martinez, Appellant,
against Record No. 1848-22-4
Circuit Court Nos. CJ22001017 and CJ22001018
Alexandria Department of Community and Human Services, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Beales, Huff, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey,
Friedman, Chaney, Raphael, Lorish, Callins, White and Frucci
On October 15, 2024, the appellee, by counsel, filed a petition requesting that the Court set aside the
judgment rendered on October 1, 2024, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the Court grants the petition for rehearing en banc and reinstates the appeal of those issues on the docket. The
Court stays the mandate previously entered in this case pending the Court’s en banc decision.
The parties must file briefs in compliance with the schedule set forth in Rule 5A:35(b).
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Causey and Callins
Argued at Winchester, Virginia
JORGE GUEVARA-MARTINEZ
MEMORANDUM OPINION* BY
v. Record No. 1848-22-4 JUDGE DORIS HENDERSON CAUSEY
OCTOBER 1, 2024
ALEXANDRIA DEPARTMENT OF
COMMUNITY AND HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
James C. Martin (Martin & Martin Law Firm, on briefs), for
appellant.
Helen T. Clemens (Joanna C. Anderson; Meghan S. Roberts; Office
of the City Attorney, on brief), for appellee.
No brief or argument from the guardian ad litem for the minor
child.1
Jorge Guevara-Martinez (father) appeals the circuit court’s orders, entered on November 14,
2022, terminating his parental rights to his son and approving the foster care goal of adoption.
Father argues that the circuit court erred by terminating his parental rights and approving a foster
care goal of adoption “where the child had been illegally abducted from another country, thus
depriving the court of legitimate subject matter jurisdiction.” Father further contends that the circuit
court violated his due process rights when the City of Alexandria Department of Community and
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
On June 8, 2023, and June 27, 2023, the Clerk’s office notified Luis Chinchilla, the
minor child’s guardian ad litem, that the Court had not received a brief or letter stating which
party he supported. See Rule 5A:19(d). Although the Court requested a response within 14
days, the guardian ad litem never responded to the Court’s correspondence.
Human Services (the Department) failed to present clear and convincing evidence that he was an
“unfit” parent. Father also asserts that “delays caused by the abduction, the pandemic, [his] refusal
to enter the United States illegally, and the appeals in this case . . . cannot be used to conclude that
the child’s need for finality requires termination” of his parental rights. Finally, father argues that
the circuit court erred by terminating his parental rights and approving the foster care goal of
adoption “where the Interstate Compact for the Placement of Children is being circumvented by
efforts to divert placement to an illegal alien.”
BACKGROUND2
Father and Martiza Ulloa Turcios (mother) are the biological parents to the child who is the
subject of this appeal.3 The family lived together in Honduras until July 2019, when mother and the
then-five-year-old child left father because of what mother described as “constant physical and
psychological abuse.” Mother and child eventually came to the United States.4 In October 2019,
the Department received reports alleging abuse and neglect by mother and concerns about her
mental health. While father told the Department that mother took the child without his permission,
mother told the Department that she came to the United States because father had been physically,
verbally, and emotionally abusive towards her. Despite the decline of mother’s mental health, she
2
“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.’” Joyce v. Botetourt Cnty.
Dep’t of Soc. Servs., 75 Va. App. 690, 695 (2022) (quoting C. Farrell v. Warren Cnty. Dep’t of
Soc. Servs., 59 Va. App. 375, 386 (2012)). The record in this case was sealed. “[T]his appeal
requires unsealing certain portions to resolve the issues raised by the parties.” Mintbrook Devs.,
LLC v. Groundscapes, LLC, 76 Va. App. 279, 283 n.1 (2022). We unseal only the facts
mentioned in this opinion; the rest of the record remains sealed. Id.3
On October 28, 2021, mother signed a permanent entrustment agreement, which the
City of Alexandria Juvenile and Domestic Relations District Court approved.
4
Mother met a man online, moved to Virginia (U. S.), married him, and began living
with him and his three children in the City of Alexandria from July 2019 to September 2019.
Mother was asked to leave the home by her husband for “displaying verbal abuse, yelling, and
name calling.”
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refused services and told the Department that she did not need a mental health assessment. The
Department and mother entered into a safety plan in which mother was not to be left alone with the
child; one of mother’s friends agreed to be the child’s caretaker.5 When mother’s mental health
continued to decline, the Department sought a protective order for the child.
On October 30, 2019, the City of Alexandria Juvenile and Domestic Relations District Court
(the JDR court) entered a child protective order and temporary order awarding mother’s friend sole
legal and physical custody of the child. The JDR court subsequently adjudicated that the child was
abused or neglected, finding that he was “without parental care . . . caused by the unreasonable
absence or the mental or physical incapacity of the child’s parent.” Later, the JDR court entered a
dispositional order. The JDR court’s records reflect that father was not present at the initial JDR
court hearings, though he was represented by court-appointed counsel.
In February 2020, mother’s friend told the Department that she needed to travel to
El Salvador to care for an ill relative; the friend signed a temporary entrustment agreement, and the
child entered foster care. Two months later, mother’s friend returned to the United States and
indicated that she could no longer care for the child. The Department petitioned for emergency
removal, which the JDR court granted. The Department had determined that father was not a
placement option at that time because of mother’s allegations that father had been abusive
towards her. Thus, the child remained in foster care, and the JDR court again adjudicated that
the child was abused or neglected.
After the child entered foster care, the Department established requirements that father6
had to complete before he could be reunited with the child. The Department asked father to
5
Mother’s friend was a neighbor who obtained legal residency in January 2020. The
record is void of mother’s husband being considered as a placement option.
6
Father is Spanish-speaking.
-3-
participate in family partnership meetings and monthly treatment team meetings. The
Department also required father to maintain contact with the child and participate in parent
coaching services. In addition, father had to cooperate with a home study.
Although father did not travel from Honduras to the United States because of the COVID-19
pandemic and his lack of a passport or a visa, he participated virtually in family partnership
meetings and several treatment team meetings and indicated that he wanted the child returned to his
care. Father’s participation in meetings did involve “some inconsistencies.” Sometimes, father
“listen[ed] in and ask[ed] questions,” but at other times, he did “not show up,” had “challenges with
his [internet] connection,” or was not in “a quiet environment.”
Shortly after the child entered foster care, the Department attempted to “complete a home
study with International Social Services,” but due to the COVID-19 pandemic, Honduras was under
a “complete lock-down and home studies [were] not being completed until restrictions [were]
lifted.” Several months later, on August 6, 2020, the Directorate for Children, Youth, and Family
(DINAF) completed a home study for father in Honduras. DINAF interviewed several of father’s
relatives, including his parents and older children. All recommended that the child remain in the
United States and not return to father in Honduras. Accordingly, DINAF did not recommend
placing the child with father because his family described him as “an irresponsible and aggressive
person who engaged in domestic violence against” mother.
The Department referred father to parent coaching and parent support services in a “rural
city” approximately 45 minutes away (one-way) from his home, but father stated that he would not
participate in the services due to the distance and unreliable bus transportation. The Department
then arranged for father to participate virtually in parent coaching through the Multicultural Clinical
Center, which also supervised his virtual visits. Father “consistently” participated in phone and
video calls with the child, although the Department was concerned that the conversations caused the
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child “distress” because father “often” discussed the child’s return to Honduras. The Department
found that father required “assistance with appropriately engaging with [the child] and maintaining
a positive relationship with him.”
While the Department offered some services to father, it also explored other relative
placement options. A paternal uncle and aunt in Texas expressed interest in serving as the child’s
caregivers. The Department arranged for the child to have weekly contact with these relatives,
along with one of his older brothers who had been living with the relatives. The Department also
arranged for the child to visit these relatives in Texas. In addition, the child’s relatives travelled to
Virginia at least twice to visit him. The Department sought a home study of the paternal uncle and
aunt’s home through the Interstate Compact on the Placement of Children (ICPC). Texas Social
Services found that the child’s relatives would not be approved as “a relative foster home” because
the paternal uncle was not a legal resident or United States citizen. The Department could not place
the child with the Texas relatives without ICPC approval. Thus, the Department sought to change
the goal of foster care to adoption.
The Department did not recommend placing the child with father because of his “history of
aggression and domestic violence” and failure to address the Department’s concerns. In October
2021, the Department petitioned to terminate father’s parental rights and recommended a foster care
goal of adoption/relative placement. Father asked for a continuance so that he could appear in
person at the hearing; however, his motion was denied. Father participated in the JDR court
termination hearing by telephone while represented by counsel. The JDR court terminated father’s
parental rights and approved the foster care goal of adoption. Father appealed the JDR court’s
rulings.
On November 14, 2022, the parties appeared before the circuit court; surprisingly, father
was present in person, having received a visa a few days before the hearing. The Department
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presented evidence that the child, who was eight years old and healthy, was “responding really well
in his foster home.” Initially, the child only spoke Spanish, but as of the circuit court hearing, he
spoke English “fluently” and was “doing really well in school.” Since entering foster care, the
child’s mental health had improved, and he was “actively engaging in therapy to address the
traumas that he had endured.”
Father and his family wanted the child with family. Acknowledging that father had
repeatedly stated that he wanted the child returned to him, the Department remained concerned
about father caring for the child because of the “ongoing reports of his abusive history” and father’s
lack of understanding of the child’s needs. For example, during visits, father needed “constant”
reminders to ask the child questions, engage with him, and have “child-appropriate conversations”
with him.
The Department also presented evidence from C.G., one of father’s older sons. Before
moving to the United States, C.G. had lived with father, mother, the child, and his other brother in
Honduras. While they lived together, C.G. “[f]requently” witnessed father physically and verbally
abusing mother. According to C.G., father hit mother and insulted her, sometimes in front of the
child. After the child reported to the paternal grandparents that father had hit mother, father made
the child, who was two years old at the time, kneel for “about ten minutes.”7 C.G. also testified that
father hit him with a belt and with a rope, which father denied.
After the Department rested, father moved to strike; the circuit court denied father’s
motion. Father testified that mother and C.G. left Honduras in 2017 and moved to Mexico. He
denied abusing mother and said that they had an “excellent” relationship before she “abandoned
the home.” Father, the child, and another of father’s sons remained in Honduras. Seven months
after she left, mother returned to Honduras and stayed until the summer of 2019, when she “took
7
Father denied hitting mother and punishing the child.
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the child” out of school without telling father. Two days later, father reported the incident to
DINAF. According to father, he did not know where the child was until mother’s friend
contacted him months later to request that he “sign something” so that she could “have the
child”; father refused. When the Department contacted father, he stated that he had filed “a
report with immigration to have [the child] returned to Honduras” and asked the Department to
return the child to him. Father testified that the last time he saw the child was “[a]bout three
years ago.”
Father described himself as an “[e]xemplary father” to the child. Father testified that he and
the child played ball together and bathed in the river. They went to the store and a local restaurant
together. When father “had time,” he took the child to school and picked him up. Father also took
the child to medical appointments and the hospital because sometimes the child got a fever and “just
collapse[d].” Father reiterated that he wanted to take the child home to Honduras, but if he could
not do so, he was willing to “seek political asylum in this country.” Most notably, father was the
child’s primary caretaker just prior to the child being taken from Honduras to the United States.8
After hearing all the evidence and arguments, the circuit court found that the evidence was
sufficient to terminate father’s parental rights under Code § 16.1-283(C)(2) and approve the foster
care goal of adoption and relative placement. The circuit court acknowledged father’s efforts to file
a complaint with DINAF for the return of the child and his efforts to come to the United States for
the termination hearing. The circuit court also recognized father’s efforts to engage in fun activities
with the child, take him to medical appointments, and provide for the family financially. Yet the
circuit court found it “equally compelling” that “not one person,” including his parents and his older
children, thought that father was “fit to care” for the child. The circuit court credited C.G.’s
8
Mother lived in Mexico for seven months. Father remained in the home with their two
sons. Upon mother’s return, she lived in father’s parents’ house until 2019 when she took the
child to the United States.
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testimony describing father’s “physical violence” and “completely inappropriate” punishment of the
child. The circuit court also found that father waited until “the last possible moment to actually
make [a] serious effort to come [to Virginia] to address the situation in person” and questioned
whether he was just “going through the motions.” The circuit court held that it was in the child’s
best interests to terminate father’s parental rights. Father appeals.
ANALYSIS
“On review of a trial court’s decision regarding the termination of parental rights, we
presume the trial court ‘thoroughly weighed all the evidence, considered the statutory
requirements, and made its determination based on the child’s best interests.’” Joyce v.
Botetourt Cnty. Dep’t of Soc. Servs., 75 Va. App. 690, 699 (2022) (quoting Norfolk Div. of Soc.
Servs. v. Hardy, 42 Va. App. 546, 552 (2004)). “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.” Simms v. Alexandria Dep’t of Cmty. & Hum. Servs.,
74 Va. App. 447, 470 (2022) (quoting Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59
Va. App. 185, 190 (2011)).
I. Jurisdiction
For the first time on appeal, father challenges the circuit court’s jurisdiction. In his
opening brief, father states that “this case is apparently covered by the Hague Convention on the
Civil Aspects of International Child Abduction.” (Emphasis added). He also contends that the
circuit court “seems to have had no subject matter jurisdiction to terminate [his] parental rights.”
(Emphasis added). “Subject matter jurisdiction defines a court’s ‘power to adjudicate a case,’”
Hannah v. Commonwealth, 303 Va. 106, 123 (2024), and to do so “upon the merits and dispose
of it as justice may require,” Pure Presbyterian Church of Washington v. Grace of God
Presbyterian Church, 296 Va. 42, 49 (2018) (quoting Shelton v. Sydnor, 126 Va. 625, 629
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(1920)). “[F]or a court to have the authority to adjudicate a particular case upon the merits,” it must
possess subject matter jurisdiction. Id.“Whether the record establishes subject matter jurisdiction in a particular case is a
question of law reviewed de novo on appeal.” Ruderman v. Pritchard, 76 Va. App. 295, 302
(2022). “[T]he lack of subject matter jurisdiction can be raised at any time in the proceedings,
even for the first time on appeal by the court sua sponte.” Holden v. Commonwealth, 26
Va. App. 403, 407 (1998) (quoting Morrison v. Bestler, 239 Va. 166, 170 (1990)). “‘Jurisdiction
of the subject matter can only be acquired by virtue of the Constitution or of some statute,’ and it
‘refers to a court’s power to adjudicate a class of cases or controversies.’” Cilwa v. Commonwealth,
298 Va. 259, 266 (2019) (first quoting Pure Presbyterian Church, 296 Va. at 56; and then quoting
In re Commonwealth, 278 Va. 1, 11 (2009)). “The Constitution of Virginia vests courts with the
‘judicial power’ to adjudicate classes of cases and controversies determined by the General
Assembly.” Id. at 267 (quoting Va. Const. art. 6, § 1).
A circuit court has jurisdiction to consider the termination of a parent’s parental rights under
Code § 16.1-283. See Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 327 (2013)
(“Virginia JDR and circuit courts have subject matter jurisdiction to determine the custody, control,
or disposition of a child within its jurisdiction alleged to be abused or neglected or where the
termination of residual parental rights is sought.”); see also Code §§ 16.1-241(A), -244.
Father’s challenge to the circuit court’s jurisdiction rests on his contention that the case may
fall within the parameters of the Hague Convention. The United States is a contracting party of the
Hague Convention, which “was adopted in 1980 in response to the problem of international child
abductions during domestic disputes.” Golan v. Saada, 596 U.S. 666, 670 (2022) (quoting Abbott v.
Abbott, 560 U.S. 1, 8 (2010)). “Congress implemented the Convention in the International Child
Abduction Remedies Act (ICARA), 102 Stat. 437, as amended, 22 U.S.C. § 9001 et seq.” Id. at
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671. “Under ICARA, state and federal district courts have concurrent original jurisdiction of
actions arising under the Convention.” Coe v. Coe, 66 Va. App. 457, 473 (2016) (citing 22 U.S.C.
§ 9003(a)). “Any person seeking the return of a child pursuant to the Convention may commence a
civil action by filing a petition in a court where the child is located.” Id. (citing 22 U.S.C.
§ 9003(b)). The provisions of ICARA are not self-executing. “The petitioner bears the burden of
showing by a preponderance of the evidence that the removal or retention was wrongful under
[Hague Convention] Article 3; the respondent must show by clear and convincing evidence that one
of Article 13’s exceptions applies to prevent the return.” Id. (citing 22 U.S.C. § 9003(e)(1)(A),
(2)(A)); see also Golan, 596 U.S. at 671-72 (noting that father filed a petition under ICARA).
Father has not filed a petition under ICARA seeking the return of the child, so the Convention is not
implicated in this case.9
Father has not filed a petition seeking the return of the child, nor has he addressed his
burden of proving that the child’s “removal or retention was wrongful” under the Hague
Convention.10 Coe, 66 Va. App. at 473. Notwithstanding this, even if a petition were to be filed,
our courts would have concurrent original jurisdiction of this controversy. See id. Thus, the circuit
court would continue to have jurisdiction over this matter.11 Therefore, father’s argument is
9
Moreover, even when the Convention is implicated, the circuit courts of this
Commonwealth have subject matter jurisdiction to consider a properly filed petition. See 22
U.S.C. §§ 9002(8), 9003(a); Coe, 66 Va. App. at 473.
10
In his reply brief, father contends that filing a petition was “discretionary,” but he does
not address his burden of proving by “a preponderance of the evidence that the removal or
retention was wrongful under Article 3.” Coe, 66 Va. App. at 473.
11
ICARA provides that “any court exercising jurisdiction of an action brought under
section 9003(b) of this title may take or cause to be taken measures under Federal or State law,
as appropriate, to protect the well-being of the child involved or to prevent the child’s further
removal or concealment before the final disposition of the petition.” 22 U.S.C.A. § 9004(a).
Thus, even if the Hague Convention were implicated as father asserts, and even if he filed a
petition accordingly, the court’s concurrent jurisdiction over that claim would not preclude it
from exercising its jurisdiction under Virginia Code § 16.1-283. The termination of parental
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unpersuasive, and we find that the circuit court had subject matter jurisdiction under Code
§ 16.1-283.
II. Due Process and Termination of Parental Rights
Father argues that the circuit court violated his due process rights by terminating his parental
rights because there was not clear and convincing evidence that he was an “unfit” parent. He argues
that the evidence was insufficient to justify such a termination. We agree.
“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens.
It says: ‘Nor shall any State deprive any person of life, liberty, or property without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.’” Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886). “These provisions are universal in their application, to all
persons within the territorial jurisdiction, without regard to any differences of race, of color, or of
nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” Id.“The parent-child relationship ‘is a constitutionally protected liberty interest under the Due Process
Clause of the Fourteenth Amendment.’” Lively v. Smith, 72 Va. App. 429, 441 (2020) (quoting L.F.
v. Breit, 285 Va. 163, 182 (2013)).
“It is undisputed that parents have a fundamental liberty interest in the companionship, care,
custody, and management of their children.” In re B, 756 N.W.2d 234, 241 (Mich. Ct. App. 2008)
(citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). “[U]ntil the State proves parental
unfitness, the child and his parents share a vital interest in preventing erroneous termination of their
natural relationship.” Santosky, 455 U.S. at 760. “This fundamental liberty interest pertains to
citizens and aliens alike because ‘the Due Process Clause applies to all “persons” within the United
rights pursuant to Code § 16.1-283 is done in accordance with the “best interests of the child,”
and thus falls within the scope of 22 U.S.C.A. § 9004(a).
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States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.’”
In re B, 756 N.W.2d at 241 (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
“The preservation of the family, and in particular the parent-child relationship, is an
important goal for not only the parents but also government itself.” Weaver v. Roanoke Dep’t of
Human Res., 220 Va. 921, 926 (1980). “While it may be occasionally necessary to sever the legal
relationship between parent and child, those circumstances are rare.” Id. This Court has held that
“[t]he termination of parental rights is a grave, drastic, and irreversible action. When a court orders
termination of parental rights, the ties between the parent and child are severed forever and the
parent becomes a ‘legal stranger to the child.’” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3
Va. App. 15, 20 (1986) (quoting Lowe v. Richmond Dep’t of Pub. Welfare, 231 Va. 277, 280
(1986)).
“Statutes terminating the legal relationship between parent and child should be interpreted
consistently with the governmental objective of preserving, when possible, the parent-child
relationship.” Weaver, 220 Va. at 926. The circuit court terminated father’s parental rights under
Code § 16.1-283(C)(2), which authorizes a court to terminate parental rights if:
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.
“[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 v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539, 552 (2018) (quoting
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271 (2005)).
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“Code § 16.1-283 permits complete termination of parental rights only if ‘clear and
convincing evidence’ demonstrates that parental unfitness cannot be remedied within a
reasonable period of time.” Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 829
(1993). “The term ‘clear and convincing evidence’ has been defined 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.’” Judicial Inquiry & Review Comm’n of Va. v. Pomrenke,
294 Va. 401, 409 (2017) (quoting Judicial Inquiry & Review Comm’n of Va. v. Waymack, 284
Va. 527, 534 (2012)). This standard is considerably higher than a “mere preponderance,” id.,and has been fairly characterized as a “heavy burden.” Commonwealth v. Allen, 269 Va. 262,
275 (2005); United States v. Watson, 793 F.3d 416, 420 (4th Cir. 2015). “Such a standard cannot
be met with evidence that leaves ‘competing inferences “equally probable.”’” In re Brown, 295
Va. 202, 227 (2018) (quoting Edmonds v. Edmonds, 290 Va. 10, 22 (2015)).
Moreover, under Code § 16.1-283 “[t]he evidence must show that ‘reasonable and
appropriate efforts’ were made by social agencies to remedy the conditions leading to foster care
by less severe means of intervention and through rehabilitative services.” Wright, 16 Va. App. at
829-30 (quoting Weaver, 220 Va. at 928). “Only after the failure of those efforts to remedy the
conditions leading to foster care may the state sever the parental rights.” Id. at 830.
Here, we hold that the circuit court prematurely terminated father’s parental rights. The
record before us contains no “demonstrated failure of [father] to make reasonable changes.” Yafi,
69 Va. App. at 552 (quoting Toms, 46 Va. App. at 271). The Department established several
requirements for father to complete before he could be reunited with his child. For example, father
had to comply with a home study, which he did. Father also had to attend parent coaching services,
which the Department then arranged for father to receive through the same agency that supervised
his visits with the child. Although father could not travel to the United States because of the
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COVID-19 pandemic and his lack of a visa or passport, he clearly indicated that he wanted his child
returned to his care. He filed a complaint with DINAF once he learned that his son did not come
home from his kindergarten class and he discovered that his son had been abducted.12 Father
participated virtually in family partnership meetings and several treatment team meetings required
by the Department. Finally, the Department also required father to maintain contact with the
child. Father consistently participated in phone and video calls with the child, although the
Department was concerned that the conversations caused the child “distress” because father “often”
discussed the child’s return to Honduras.
The Department put on evidence that it provided father in-person parenting classes,
which he either refused or was unable to avail himself of, then made a virtual parenting class
available to father. The Department presented no evidence nor made any allegations that he
failed to participate in this virtual class. The Department presented evidence that father failed to
adjust his communication style with the child during virtual visits to one they deemed more
appropriate. The social worker testified that father received instruction about how to
communicate with the child during their virtual visitation, but father by and large did not respond
to this instruction. Though the Department presented evidence of an initial home study that
recommended not placing the child with father, there was no testimony of any follow-up
evaluation after father had participated in the virtual parenting class. Father testified about his
desire to be in his child’s life and that he had taken several steps to remedy the Department’s
concerns.
12
Father testified that he went to work as normal, and the child went to his kindergarten
class. Mother took the child out of his kindergarten class, which father discovered when he
returned home from work and mother and child were gone. Subsequently, father reached out to
DINAF to file a complaint.
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Even in the face of a global pandemic, the record demonstrates that father complied with the
demands of the Department. Father has continuously contended that mother took their child
without his permission and that he desires to be reunited with his son. Moreover, father did nothing
to cause the child to be in the custody of the Department. Father participated in the JDR court
termination hearing by telephone after the JDR court denied his motion for continuance so that he
could appear in person. Father participated in the virtual parenting classes and complied with the
home study. Father even traveled to the circuit court termination hearing five days early. However,
no evidence shows that once father was in Virginia, services were offered to attempt to rehabilitate
father. Thus, once he was in the United States, father was not afforded a meaningful opportunity to
remedy the Department’s concerns and rehabilitate himself.
The child was placed in foster care after a decline in mother’s mental health. The child was
initially placed with mother’s friend, who could no longer care for the child. The Department
determined that father was not a placement option at that time because of mother’s allegations
that father had been abusive toward her, not the child. The Department put on evidence from
father’s son, C.G., who testified that he “[f]requently” witnessed father physically and verbally
abusing mother and that father made the child, who was two years old at the time, kneel for “about
ten minutes.”13 This testimony at most established that father had been abusive towards the
child’s mother and had physically disciplined, perhaps excessively, his children. This evidence
went to the initial need for the child to be in foster care. It established the conditions that the
Department had determined needed improving before father became a suitable placement for the
child. By its nature therefor, it did not have any bearing on whether father had remedied these
conditions. Based on the record, father no longer has a relationship with mother. Mother’s parental
rights have been terminated. Thus, the “conditions leading to foster care” have arguably been
13
Father denied hitting mother and punishing the child.
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remedied. There is no mention of other additional conditions that father must remedy nor is there
any support in the record that father was responsible for the incidents that led to the child being
placed in foster care. Furthermore, to the extent that any other conditions have not been remedied,
the Department has failed to take “reasonable and appropriate efforts” to help father remedy them.
Thus, the only evidence before the circuit court that father had not remedied the situation
requiring the child’s continued foster care placement was the Department’s opinion that father
had not sufficiently modified how he participated in virtual visits with the child. This is not clear
and convincing evidence that the father failed to remedy the situation requiring the child’s
continuation in foster care. Though the circuit court’s finding “is entitled to great weight,” here,
it is “without evidence to support it.” Simms, 74 Va. App. at 470 (quoting Ridgeway, 59
Va. App. at 190). The mere fact that father did not modify his communications with his son can
hardly satisfy the heavy burden of showing by more than a mere preponderance that the
parenting classes had not improved father’s identified parenting deficiencies. Upon such thin
evidence a fact finder could not be sure what type of impact the parenting classes had upon
father, and thus there could be no “firm belief or conviction” that father had not remedied his
identified parenting deficiencies. Pomrenke, 294 Va. at 409. Quite simply, there has been no
“demonstrated failure of [father] to make reasonable changes.” Yafi, 69 Va. App. at 552 (quoting
Toms, 46 Va. App. at 271).
Considering the totality of the record, “reasonable and appropriate efforts” were not made
by the Department to remedy the conditions that led to the child being placed in foster care.
Furthermore, the Department has failed to provide clear and convincing evidence that
demonstrates that father’s unfitness cannot be remedied within a reasonable period of time.
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Thus, the circuit court prematurely terminated father’s parental rights under Code
§ 16.1-283(C)(2) and erred in approving the foster care goal of adoption.14
CONCLUSION
Children who enter this country and are reported abducted must be afforded the
opportunity to reunite with their parents and families once found. Here, the parent-child
relationship is a constitutionally protected right that extends beyond citizenship. Thus, the circuit
court erred by violating father’s fundamental right to parenthood when the court terminated his
parental rights. Accordingly, the circuit court’s judgment terminating father’s parental rights and
approving the foster care goal of adoption is reversed and remanded for further proceedings
consistent with this opinion.
Reversed and remanded.
14
Because “[w]e have an ‘obligation to decide cases on the best and narrowest grounds
available,’” we conclude that this holding under Code § 16.1-283(C)(2) is the best and narrowest
ground for the resolution of this appeal. Theologis v. Weiler, 76 Va. App. 596, 603 (2023)
(quoting Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022)). Therefore, we do not
address his third and fourth assignments of error arguing that the circuit court erred in terminating
his parental rights: (1) “where delays caused by the abduction, the pandemic, [his] refusal to enter
the United States illegally, and the appeals in this case were not culpable acts” by him; and (2)
because the ICPC is “being circumvented by efforts to divert placement to an illegal alien.”
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Athey, J., concurring.
I agree with the majority that the circuit court erred in terminating father’s parental rights.
However, I write separately to note that this agreement extends only to the majority’s analysis that
the Department failed to provide clear and convincing evidence that father failed to remedy his
situation under Code § 16.1-283(C)(2). As this ground by itself is sufficient for reversal, I would
not address father’s remaining assignments of error as “[w]e have an ‘obligation to decide cases on
the best and narrowest grounds available,’” and resolving this matter under Code § 16.1-283(C)(2)
is the best and narrowest ground for the resolution of this appeal. Theologis v. Weiler, 76 Va. App.
596, 603 (2023) (quoting Esposito v. Va. State Police, 74 Va. App. 130, 134 (2022)).
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Callins, J., concurring in part, and dissenting in part.
As an initial matter, father brings four assignments of error for appellate consideration.
First, father contends that the circuit court was without “legitimate subject matter jurisdiction.”
But father’s arguments addressing this issue turn on a flawed understanding of subject matter
jurisdiction as well as the relevance of the Hague Convention and the mechanisms by which the
Convention is enforced. I agree with my colleagues that father has failed to show that the circuit
court was “depriv[ed]” of “legitimate subject matter jurisdiction.”
Second, father contends that “there was no clear and convincing evidence” that he “was
an unfit parent.” I disagree. Code § 16.1-283(C)(2) requires that a circuit court consider the best
interests of the child as well as other factors when terminating residual parental rights. But
whether the evidence presented at the termination hearing regarding the child’s best interests
reached the “clear and convincing” threshold is not a determination that we, as an appellate
court, can make sitting in review of the circuit court’s judgment. Indeed, a circuit court, “[i]n its
capacity as factfinder, . . . retains ‘broad discretion in making the decisions necessary to guard
and to foster a child’s best interests.’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68
Va. App. 547, 558 (2018) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 266
(2005)). And here the circuit court’s judgment regarding the child’s best interests was based on
evidence heard ore tenus. Hence, the only consideration before us is whether the circuit court’s
findings regarding the best interests of the child were plainly wrong or without evidence to
support them. See id. (“The [circuit] court’s judgment, ‘when based on evidence heard ore
tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.”
(quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991))). Because
evidence was presented as to father’s history of abuse and aggression on which the circuit court
could rely in finding that termination of father’s parental rights was in the best interests of the
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child, the circuit court’s findings were not plainly wrong or without evidence to support them.
Thus, I would affirm the circuit court on this point. Moreover, as explained infra, father’s
arguments as to how the other factors delineated by Code § 16.1-283(C)(2) were applied to this
case are waived under Rule 5A:20(e).
Third, father argues that the “delays caused by the abduction, the pandemic, [his] refusal
to enter the United States illegally, and the appeals in this case were not culpable acts by [father]
and cannot be used to conclude that the child’s need for finality requires termination.” But the
arguments father presents on brief addressing this assignment of error are sufficiently vague—
and skeletal—as to invite this Court “to research [and] construct” father’s “arguments for him.”
Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (quoting Sneed v. Bd. of Pro. Resp. of
the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010)). This we cannot do. Accordingly, I
would find that father’s arguments fail to meet the requirements of Rule 5A:20(e) and are,
therefore, waived.
Fourth, father argues that the “Interstate Compact for the Placement of Children [wa]s . . .
circumvented by efforts to divert placement [of the child] to an illegal alien.” To the extent that
my colleagues in the majority find that this argument does not merit our consideration and since
father’s argument on this point fails to comport with the strictures of Rule 5A:20(e), I agree.
Among these four assignments of error are two about which my colleagues and I
disagree. It is on these assignments of error that I focus in the analysis that follows.
I. Father’s Second Assignment of Error
Father contends, under his second assignment of error, that “there was no clear and
convincing evidence [that he] was an unfit parent, thus violating his Due Process rights under the
Fourteenth Amendment to the United States Constitution, Article I Section 11 of the Virginia
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Constitution, and Section 16.1-283 of the Code of Virginia.”15 On brief, father argues, among
other things, that “the evidence for this termination is insufficient as a matter of statutory law,
and it must be reversed on that ground.” Father asserts, “[t]he presumption favoring a natural
parent has not been overcome,” since “[t]here was no clear and convincing evidence that . . .
father’s parental rights to this child should be interfered with, much less terminated.” Father
argues that, instead, the evidence presented at the termination hearing constituted “unspecified
and unadjudicated allegations of abuse by . . . father to the mother,” one of which such
allegations, father emphasizes, he “denied . . . under oath.”
Father’s arguments are unavailing. First, father’s second assignment of error is lacking in
precision.16 As drafted, it asserts that “the [circuit] court erred in terminating [father’s] parental
15
As our Supreme Court held in Knox v. Lynchburg Division of Social Services, 223 Va.
213 (1982), Code § 16.1-283(C)(2) passes constitutional muster. Id. at 223-24 (rejecting
appellant’s arguments that Code § 16.1-283 “is invalid because (1) it denies substantive due
process by permitting termination in the absence of a compelling state interest, (2) it is
unconstitutionally vague, and (3) it permits termination of parental rights on proof by a mere
preponderance of evidence”). Rather, Code § 16.1-283(C)(2) delivers to parents the process they
are due under the United States Constitution as well as the Virginia Constitution. See Rader v.
Montgomery Cnty. Dep’t of Soc. Servs., 5 Va. App. 523, 526 (1988) (“The statutory scheme for
the constitutionally valid termination of residual parental rights in this Commonwealth is
primarily embodied in Code § 16.1-283.”). Understanding this, father argues, on brief, that
“[d]ue process requires a [circuit] court to strictly comply with the applicable statutory scheme
for the disposition of child custody cases.” See id. (“These procedures must be strictly followed
before the courts are permitted to sever the natural and legal bond between parent and child.”).
16
What is more, father’s second assignment of error appears not to have been preserved.
Father includes in his opening brief page references for four locations in the record where the
error outlined in this assignment was stated. Two of the four locations—father’s motion to strike
and father’s closing argument—do not include arguments that track or reflect with specificity
father’s second assignment of error. The other two locations correspond with a pleading
document titled “Appellant’s Objections to Termination of Parental Rights and Permanency
Planning Orders,” dated December 1, 2022. The pleading was stamped as filed on December 2,
2022, more than two weeks after the circuit court entered the permanency planning order on
November 14, 2022. Father’s notice of appeal, stamped as filed December 5, 2022, was also
signed by counsel on December 1, 2022.
Rule 5A:18 provides that “[n]o ruling of the [circuit] court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling.” (Emphasis added). Here, father’s objections were filed weeks after the ruling, almost
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rights and in the accompanying permanency planning orders approving goals other than return
home to him, where there was no clear and convincing evidence [father] was an unfit parent.”
(Emphasis added). But Code § 16.1-283(C) does not require that a circuit court make a finding
as to a parent’s fitness. And the circuit court did no such thing here. See Code
§ 16.1-283(C)(1)-(2) (providing that “[t]he residual parental rights of a parent” may be
terminated where “the court finds, based upon clear and convincing evidence, that it is in the best
interests of the child” and certain other conditions are met (emphasis added)).
Nevertheless, a circuit court’s “determin[ation] that the factors listed in Code
§ 16.1-283(C)(2) existed” is “tantamount to a finding of parental unfitness,” making “separate
finding[s] of unfitness . . . [un]necessary.” Helen W. v. Fairfax Cnty. Dep’t of Hum. Dev., 12
Va. App. 877, 885 (1992) (citing Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 241
(1982)). Here, the court found that
the Department has met its burden to establish by clear and
convincing evidence that termination of your residual parental
rights pursuant to Virginia Code Section 16.1-283(C), that the
petition should be granted along with the petition for permanency
planning order with the goal of adoption and relative placement.
Hence, because the circuit court found that the factors in Code § 16.1-283(C)(2) existed, and this
finding was tantamount to a finding of parental unfitness, father’s assignment of error, which
asserts that “there was no clear and convincing evidence [father] was an unfit parent,” can be
simultaneous with father’s notice of appeal. Rule 5A:18 “afford[s] the trial judge an opportunity
to rule intelligently on objections,” “at a point in the proceeding when the [circuit] court is in a
position . . . to consider the asserted error [and] rectify the effect of the asserted error.” Moison
v. Commonwealth, 302 Va. 417, 419 (2023) (first, third, and fourth alterations in original)
(quoting Maxwell v. Commonwealth, 287 Va. 258, 264-65 (2014)). The referenced document
afforded the circuit court no such opportunity. Moreover, father did not, between noting his
objections and filing his notice of appeal, request a hearing on the objections or move for
reconsideration.
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construed as contending that the evidence was insufficient to support the circuit court’s finding
regarding the subject factors.
The first such factor is the best interests of the child. See Code § 16.1-283(C)(2). The
circuit court observed,
not one person who was interviewed who knows [father] the best,
your parents, your children, your older children, and I think there
were some others that were interviewed. Not one gave the opinion
that you were fit to care for [the child], that you understood his or
could provide for his developmental, his emotional, his
educational, his medical needs. And in fact, the home study was
replete with statements about the physical and verbal aggression
exhibited by you.
The circuit court then further found that,
while your son, [C.G.], as hard as it was to have to listen to his
testimony, he didn’t -- in my view, he was credible because I
didn’t see any exaggeration in this testimony. He only identified
one episode of actually observing you be physically violent
towards his mother.17 But he also testified about having to
experience and bear physical violence by you against him.
And then he also described at least one inciden[t] of you
punishing [the child] in what this Court would find a completely
inappropriate way.
The circuit court could make the above-referenced evidence the basis for its finding that it was
not in the best interests of the child for father to retain his residual parental rights. And such
finding was neither plainly wrong nor without evidence to support it. Rather, the circuit court’s
observations and finding were tightly moored to evidence in the record.
The Department of Social Services’ foster care service plan review, which was included
in an exhibit introduced at the hearing, stated that the child’s “grandparents do not recommend
his return to Honduras as they do not believe [father] is capable of parenting [the child] and
17
According to the record, C.G. testified to a single instance where both C.G. and the
child were present and witnessed father grab the mother by her neck and throw her on the sofa
before slapping her.
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providing for his emotional, educational, and medical needs.” The review also stated that
father’s “parents and two children live together in a home separate from” father and that father’s
“children have reported that they do not have a good relationship with their father.” One of
father’s children, C.G., testified at the termination hearing. C.G., who lived with father for 14
years, testified, among other things, that he observed “physical, and verbal aggression” by father
“[f]requently,” that father “would hit” mother, level “[i]nsults, words,” and that the physical
abuse happened in front of father’s children. One incident, C.G. testified, happened in front of
the child when he was two years old; after, the child reported the incident to his grandparents. In
response, father “got angry” at the child and “made him kneel” for “about ten minutes.” C.G.
also testified that father was physically aggressive toward C.G.’s grandmother “the same time
that he broke my mother’s eyebrow.” Although C.G. testified that father was not abusive toward
him or his brothers, he responded “Yes” when asked, “did your father ever hit you?,” and
averred that father would hit him “[w]ith a belt . . . with rope.” Similarly, the home study noted,
“It is important to mention that what has been declared by [father] is not valid since the people
who were interviewed have described [him] as an irresponsible and aggressive person who
engaged in domestic violence against [mother].” Such people, the report continued, “established
that [mother] has been the person responsible for the financial and emotional wellbeing of the
boys.”
Next, in finding that circumstances warrant the termination of the residual parental rights
of a parent, a circuit court must also find that other conditions delineated under Code
§ 16.1-283(C)(2) are met. See Code § 16.1-283(C)(2) (“The parent . . . without good cause, ha[s]
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
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appropriate efforts of social, medical, mental health or other rehabilitative agencies to such
end.”). Father seems to argue that such conditions were not met in this case. Specifically, father
points out that “[t]he best interests of the child are NOT the only thing that must be proven under
the statute,” and later notes that the statute “deals with the remedying of conditions.” Rather
than explain how or why such conditions were not met here, father poses a rhetorical question,
“But what were the conditions that needed to be remedied under Subsection 16.1-283(C)(2)?”
Beyond posing this question, father supplies no further argument on this point, much less
elucidates how or why the circuit court erred in its application of Code § 16.1-283(C)(2).
Instead, father’s question appears to invite this Court to make such arguments for him.18 But the
burden of argument is not for this Court to carry—it rests with father alone. Thus, I would find
that father’s argument regarding whether he had substantially remedied the conditions that led to
the continuation of the child’s foster care placement is waived. See Bartley, 67 Va. App. at 744(“Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law, the
argument, and the authorities relating to each question presented.’ Unsupported assertions of
error ‘do not merit appellate consideration.’” (alteration in original) (quoting Jones v.
Commonwealth, 51 Va. App. 730, 734 (2008))).
18
Indeed, my colleagues in the majority appear to have accepted father’s invitation,
elaborating in detail the conditions father was to have met, and finding, ultimately, that “the only
evidence before the circuit court that father had not remedied the situation requiring the child’s
continued foster care placement was the Department’s opinion that father had not sufficiently
modified how he participated in virtual visits with the child.” On this basis, my colleagues find
that “[t]his is not clear and convincing evidence that the father failed to remedy the situation
requiring the child’s continuation in foster care,” that such finding is without evidence to support
it, and that “[t]he mere fact that father did not modify his communications with his son can
hardly satisfy the heavy burden of showing by more than a mere preponderance that the
parenting classes had not improved father’s identified parenting deficiencies.” Yet, father makes
none of these arguments. Moreover, although framed with reference to the correct standard, my
colleagues appear to reweigh the evidence rather than consider whether any evidence supported
the circuit court’s finding.
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Accordingly, I would find the arguments father marshals under his second assignment of
error fail to establish that the circuit court committed reversible error. See Stockdale v.
Stockdale, 33 Va. App. 179, 185 (2000) (“The burden is on the party who alleges reversible error
to show that reversal is justified.” (quoting D’Agnese v. D’Agnese, 22 Va. App. 147, 153
(1996))).
II. Father’s Third Assignment of Error
Father’s third assignment of error asserts that “delays caused by the abduction, the
pandemic, [father’s] refusal to enter the United States illegally, and the appeals in this case were
not culpable acts by [father] and cannot be used to conclude that the child’s need for finality
requires termination.” In so asserting, father appears to contend that he had “good cause” to
have been unable “to remedy substantially the conditions which led to or required continuation
of the child’s foster care placement.” Code § 16.1-283(C)(2). However, this is not what father
argues on brief. Instead, father simply states that “[s]ome degree of fault is relevant to all
termination cases, but none was proven here.” Although father does cite to two circuit court
opinions to support this proposition, father fails to elaborate, with specificity or even in outline,
the significance of this “fault” argument—or the noted delays—with specific reference to Code
§ 16.1-283(C)(2).
Instead, father’s argument that “[s]ome degree of fault is relevant to all termination cases,
but none was proven here,” operates at a high level of generality and addresses none of the
specific facts of this case. Such argument serves as an invitation to this Court to fill in the gaps,
making this Court into “a depository in which” to “dump the burden of argument and research.”
Fadness v. Fadness, 52 Va. App. 833, 850 (2008) (quoting Jones, 51 Va. App. at 734). In other
words, father’s argument displaces the burden of research and argument to this Court, turning
this Court into “an advocate for, as well as the judge of the correctness of, [appellant’s] position
- 26 -
on the issues he raises.” Id. (alteration in original) (quoting Jones, 51 Va. App. at 735). With
father having made only a “skeletal argument,” Bartley, 67 Va. App. at 746 (quoting Sneed, 301
S.W.3d at 615), thrusting this Court into the role of advocate for and judge of the positions he
raises, I am compelled to find that the argument father makes under his third assignment of error
is waived.
Even so, the arguments father raises across his four assignments of error raise issues that
should not go unremarked. Not least among these issues is father’s status as a non-citizen,
non-resident; the seeming barriers, some apparently insuperable, that may have impinged on
father’s ability to remedy substantially the conditions that led to the child’s continued foster case
placement; the geography of economic privilege and how such privilege may inflect the record
here; and, notably, the absence of adjudication under the Hague Convention. Each referenced
issue is a cause for pause. But this Court may not push aside procedural defects, mis-calibrated
arguments, or appellant-made errors in an effort to reach out and grab meritorious issues. Nor
may this Court use its position to advocate for parties or make decisions on the basis of policy
considerations. Cf. Payne v. Payne, 77 Va. App. 570, 589-90 (2023). Understanding this, I must
respectfully dissent.
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