Martin Houston, Sr. v. City of Newport News Department of Human Services

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Chafin and Malveaux
Argued at Norfolk, Virginia
MARTIN HOUSTON, SR.
MEMORANDUM OPINION* BY
v. Record No. 1532-16-1 JUDGE TERESA M. CHAFIN
JULY 11, 2017
CITY OF NEWPORT NEWS
DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
Udoka Obi Ndukwe for appellant.
Patrick C. Murphrey, Assistant City Attorney; Warren F. Keeling,
Guardian ad litem for the minor children, for appellee.
On September 6, 2016, the Circuit Court of the City of Newport News (“circuit court”)
entered a series of orders pertaining to the four children of Martin Houston, Sr. The circuit court
approved permanency and foster care plans recommending adoption for each of the children, and
terminated Houston’s residual parental rights. Houston appeals from these decisions.
Specifically, he contends that the circuit court erred by: 1) failing to dismiss the petitions filed
on behalf of the Newport News Department of Human Services (“DHS”) that were signed by
non-attorney social workers, 2) denying his motion to quash a subpoena duces tecum regarding
his mental health records, and 3) terminating his parental rights in the absence of clear and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
convincing evidence establishing that the criteria of Code § 16.1-283 had been satisfied.1 For the
reasons that follow, we affirm the circuit court’s decisions.
I. BACKGROUND
“When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 (2014)
(quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). So viewed,
the evidence is as follows.
Houston is the biological father of four children: M.H.1 (born December 2, 2003), M.H.2
(born October 4, 2004), M.H.3 (born December 15, 2006), and M.H.4 (born July 7, 2009). On
October 24, 2013, DHS received a report alleging that Houston had injured M.H.3 by hitting him
in the face. DHS had previously received other reports alleging that Houston had physically
abused his children. When social workers from DHS went to Houston’s residence to investigate
the incident, they observed visible injuries on M.H.3’s face. The right side of his face, his right
eye, and his forehead were red. M.H.3 had also been bleeding.2 Eventually, M.H.1 and M.H.2
told the social workers that Houston caused the injuries by striking M.H.3 across the face. All
four children were placed in foster care following this incident.
1
The circuit court also terminated the residual parental rights of the children’s mother,
Crystal Houston. Crystal Houston appealed the circuit court’s decision on the same grounds
argued by the appellant in this case. See Houston v. City of Newport News Dep’t of Human
Servs., No. 1456-16-1 (Va. Ct. App. July 11, 2017).
2
The record of this case does not establish the extent of M.H.3’s injuries. It does,
however, establish that the injuries caused M.H.3 to miss at least two days of school. Comments
made by Crystal Houston and the social workers suggest that M.H.3 may have sustained a
concussion.
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While the children were in foster care, they told social workers about other instances of
physical abuse by Houston and their mother, Crystal Houston.3 M.H.1 told social workers that
“her parents would hit them, smack them in the face, kick them, throw things at them, put hot
sauce and sap in their mouths, . . . grab them by the neck, . . . pull them by their ears and hit them
with belts and shoes.” She also said that her mother threw a glass bottle at M.H.3’s head on one
occasion. M.H.1 told social workers that “she was afraid that if she went back home to her
parents, they would kill her and her siblings.”
Despite the allegations of physical abuse from the children, Houston and his wife denied
any form of wrongdoing. Houston denied that he ever hit or physically abused the children, and
he explained that M.H.3 sustained the facial injuries observed by the DHS social workers when
he fell on bleachers at a football game. Both parents, however, admitted that they used corporal
punishment to discipline the children, and Crystal Houston admitted that she “popped” M.H.3 on
the mouth on a daily basis.
After obtaining temporary custody of the children, DHS devised a plan to remedy the
conditions that led to the placement of the children in foster care and return them to the custody
of their parents. The initial foster care plans filed by DHS required Houston to meet several
conditions in order to reach this goal.4 Notably, the foster care plans required Houston to
demonstrate that he could “provide an environment for [his] children that [was] safe and free
from abuse [and] neglect,” “reduce risk factors for abusing children,” maintain a “lifestyle free of
corporal punishment,” and take parenting and anger management classes. The plans also
3
Crystal Houston and Martin Houston, Sr., were married at all times relevant to this
appeal.
4
Although the foster care plans were modified during the proceedings to include the
concurrent goal of relative placement, the requirements imposed by DHS generally remained the
same until the goal of the foster care plans was changed to adoption.
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required Houston to participate in individual and structural family therapy, and sign consent
forms allowing DHS to receive information from his therapists to measure his progress.
Additionally, Houston was required to maintain regular contact with his children and DHS.
The initial foster care plans also required Houston to participate in a parenting capacity
evaluation and comply with its recommendations. Jennifer Gildea, a licensed clinical
psychologist, conducted the parenting capacity evaluation on March 10, 2014. In the evaluation,
Gildea noted that Houston “adamantly denied any wrongdoing.” She also noted that Houston
felt that he was being treated unfairly by DHS. While Houston admitted using corporal
discipline with his children, he denied that any use of corporal discipline injured them.
Gildea explained that Houston’s failure to accept responsibility for M.H.3’s injuries
increased his risk for “ongoing problematic parenting and interpersonal interactions at home.”
Gildea concluded that:
Houston’s risk for engaging in child physical abuse in the future is
expected to remain in the moderate to high range without
continued insight-building educational, supportive and therapeutic
interventions, especially since he has not yet come to accept any
level of accountability for events leading up to the children’s
removal from his care.
Accordingly, Gildea recommended ongoing individual and structural family therapy
services to help Houston reduce the risks of future physical abuse of the children. Gildea also
recommended marital therapy sessions, and encouraged Houston and his wife to “explore events
leading up to the removal of the children from their care and the decisions, actions and responses
they exhibited that may have contributed to this outcome.” Additionally, Gildea recommended
ongoing parenting classes and “one-on-one parenting coaching.”
Initially, Houston actively addressed the requirements of the foster care plans and the
parental capacity evaluation. He completed an anger management program and numerous
parenting classes. He participated regularly in structural family therapy from March 2014 to
-4-
September 2014. He also engaged in supervised visitation with his children during most of this
time period.5
Houston attended individual therapy sessions with a therapist referred to him by DHS
from November 2013 through May 2014. Houston then stopped attending individual therapy for
several months. Although Houston resumed individual therapy and attended therapy sessions in
November and December 2014, he eventually stopped attending individual therapy sessions with
the therapist referred by DHS. After December 2014, Houston sought individual therapy with
other therapists and counseling from individuals at his church. Houston, however, refused to
sign a consent form allowing DHS to access his therapy records. Therefore, DHS could not
monitor Houston’s therapeutic progress after December 2014.
From September 2014 to December 2014, Houston “took a break” from most of the
services offered by DHS. Houston stopped participating in structural family therapy sessions
and communicating with his structural family therapist. His supervised visitation with the
children was also suspended due to a series of sexual abuse allegations involving them.6 During
this time period, DHS employees attempted to contact Houston and his wife through telephone
calls, letters, and unannounced visits to their home and church.7 Although DHS informed
Houston through letters and voicemail messages that services were still available to him, he
failed to respond to DHS or attend any meetings involving his children.
5
DHS suspended Houston’s visitation on May 23, 2014, due to an allegation of sexual
abuse involving the children. Supervised visitation was resumed in July 2014 after the allegation
was determined to be unfounded.
6
DHS suspended Houston’s visitation on August 29, 2014, following additional
allegations of sexual abuse. Although these allegations were also determined to be unfounded,
DHS did not resume visitation between Houston and the children following the additional
complaints.
7
A Court-Appointed Special Advocate (“CASA”) involved in this case also
unsuccessfully attempted to contact Houston and his wife through similar methods.
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In the meantime, DHS located James and Melissa Lang, the maternal uncle and aunt of
Houston’s children. The Langs agreed to be relative placements for the children. On November
3, 2014, M.H.1 and M.H.4 were placed with the Langs. DHS planned to place M.H.2 and M.H.3
with the Langs as well after M.H.1 and M.H.4 and the Langs had time to adjust to their new
living arrangements.
In December 2014, DHS held a team meeting regarding Houston’s children. Neither
Houston nor his wife attended this meeting. At the meeting, the team of individuals involved in
this case determined that Houston and his wife had failed to remedy the conditions that led to the
children’s placement in foster care. Therefore, DHS recommended that the goal of the children’s
foster care plans should be changed to adoption. DHS also filed petitions to terminate Houston’s
residual parental rights regarding the children.
Houston and his wife resumed services with DHS shortly after this meeting. Houston
resumed structural family therapy in February 2015, and participated until October 2015. He
also participated in individual therapy until May 2016, but records suggested that this therapy
primarily consisted of marriage counseling. Houston’s contact with his children was limited
during this time period due to the ongoing investigation of the sexual abuse allegations.
The Juvenile and Domestic Relations District Court of the City of Newport News (“JDR
court”) approved DHS’s request to change the goal of the children’s foster care plans to adoption
on January 13, 2015. The JDR court, however, maintained the concurrent goal of relative
placement in the children’s foster care plans. At some point after January 13, 2015, the Langs
expressed their desire to adopt all of Houston’s children. DHS and the Langs both believed that
adoption would provide a more stable environment for the children. The JDR court changed the
goal of the children’s foster care plans to adoption without relative placement on July 13, 2015.
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On September 15, 2015, the JDR court terminated Houston’s residual parental rights
regarding his four children pursuant to Code § 16.1-283(C). The JDR court determined that
clear and convincing evidence established that Houston had failed to substantially remedy the
conditions that led to his children’s placement in foster care. The JDR court terminated Crystal
Houston’s residual parental rights for the same reason. Houston and his wife appealed the JDR
court’s termination decision, as well as the JDR court’s decisions pertaining to his children’s
permanency and foster care plans, to the circuit court.
Before the appeal was heard in circuit court, Crystal Houston filed a motion to dismiss
the petitions previously filed by DHS regarding her children. She contended that the petitions
were invalid because they were signed and filed by non-attorney employees of DHS rather than
attorneys licensed to practice law in the Commonwealth. Therefore, Crystal Houston argued that
the circuit court lacked jurisdiction to consider the cases at issue. Houston adopted his wife’s
motion.8 After hearing argument on the issue, the circuit court denied the motion to dismiss.
Both Houston and his wife filed motions to quash a subpoena duces tecum issued to
obtain mental health records from a psychologist and psychiatrist employed at Therapy
Associates of Denbigh, Inc. Houston and his wife participated in individual therapy and
marriage counseling with these mental health care providers after they stopped attending
individual therapy with the therapist referred to them by DHS. Citing Code § 32.1-127.1:03(H),
Houston argued that the subpoena duces tecum should be quashed to protect the confidentiality
of his mental health records. He also contended that the records at issue were irrelevant.
The circuit court denied the motions to quash filed by both Houston and his wife. The
circuit court, however, ordered that the mental health records at issue could only be used for the
8
It is unclear from the record when Houston joined his wife’s motion to dismiss on these
grounds. The circuit court’s order concerning the motion, however, expressly indicated that
Houston adopted the motion.
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purposes of this case. The circuit court also prohibited the dissemination of the records to third
parties.
At the termination hearing before the circuit court, DHS presented testimony from social
workers and therapists involved with Houston’s case. Among other things, these individuals
testified about the requirements imposed on Houston by his children’s foster care plans. They
then testified about Houston’s compliance with these requirements. While DHS’s witnesses
admitted that Houston had satisfied many requirements of the foster care plans, they consistently
testified that Houston had failed to make substantial progress in eliminating the risks he posed to
his children.
Marcella Hollingsworth, a family engagement specialist who worked with the Houstons,
testified that Houston had “little insight” regarding the nature of M.H.3’s injuries and that he
consistently denied committing any physical abuse of the children. She explained that Houston
needed to be able to identify the risks in his family in order to be capable of alleviating those
risks, and opined that he had to commit to therapy to achieve this goal.
Christina Riley, the Houston’s structural family counselor, testified that Houston did not
show proper insight regarding the physical abuse of his children. She also opined that Houston
did not “fully commit” to therapy. Riley testified that Houston had not made “any progress in
regards to [his] insight and to what brought the children into care.” She then expressly testified,
without objection, that, in her opinion, the conditions that led to the children’s placement in
foster care had not been remedied.
At the conclusion of DHS’s evidence, Houston moved to strike the evidence that had
been presented. The circuit court denied the motion. Houston then testified on his own behalf.
He briefly described the steps that he had taken to comply with the requirements of his children’s
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foster care plans. He then testified about the injuries to M.H.3 that led to the children being
placed in foster care. Specifically, Houston stated:
As far as the abuse allegation with [M.H.3], yes, he was spanked
on the day in question, and yes, I did strike him across the face.
My primary strike was to his mouth. I did not think I left any kind
of bruising other than what was already there from his injury that
occurred from his fall.
He later clarified that his disciplinary actions regarding M.H.3 were “inappropriate” and that it
would not be appropriate to strike a child in the future.
At the conclusion of evidence, DHS urged the circuit court to terminate Houston’s
residual parental rights due to his failure to remedy the conditions that led to his children’s
placement in foster care. The guardian ad litem for the children joined DHS’s position. The
circuit court agreed with DHS and the guardian ad litem and terminated Houston’s residual
parental rights pertaining to all of his children. The circuit court also approved the permanency
and foster care plans recommending adoption for each of the children. This appeal followed.
II. ANALYSIS
This case presents multiple issues for appellate review. First, Houston contends that the
circuit court erred by failing to dismiss the petitions filed by DHS because they were signed by
non-attorney social workers rather than licensed attorneys. Second, Houston argues that the
circuit court erred by denying his motion to quash the subpoena duces tecum regarding his
mental health records. Third, Houston challenges the circuit court’s decision to terminate his
residual parental rights. Houston contends that the evidence presented in this case did not
establish that he willfully failed to remedy the conditions that led to his children’s placement in
foster care and that the termination of his parental rights was in the best interests of the children.
He also argues that the circuit court erred by failing to determine that the two oldest children
were of the age of discretion to object to the termination of his parental rights. As a preliminary
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matter, DHS contends that Houston’s appeal should be dismissed due to his failure to list the
case numbers of the termination cases in his notice of appeal.
Upon review, we conclude that Houston’s notice of appeal adequately identified the cases
that he intended to appeal. Therefore, we deny DHS’s motion to dismiss. For the reasons that
follow, however, we affirm the circuit court’s decisions.
A. DHS’S MOTION TO DISMISS
On February 6, 2017, DHS filed a motion to dismiss Houston’s appeal. As previously
stated, this motion was based on alleged defects in Houston’s notice of appeal. Although
Houston’s notice of appeal listed the case numbers for the cases pertaining to his children’s
permanency planning and foster care review cases, the notice of appeal failed to list the case
numbers corresponding to the termination of parental rights cases. DHS contends that Houston’s
failure to list the case numbers of the termination cases is fatal to his appeal. We disagree.
Rule 5A:6 addresses the procedural requirements pertaining to notices of appeal filed in
this Court. In pertinent part, Rule 5A:6(a) states:
No appeal shall be allowed unless, within 30 days after entry of
final judgment or other appealable order or decree, or within any
specified extension thereof granted by this Court under Rule
5A:3(a), counsel files with the clerk of the trial court a notice of
appeal, and at the same time mails or delivers a copy of such notice
to all opposing counsel.
See also Code § 8.01-675.3 (imposing an identical time requirement). Rule 5A:6(b) addresses
the content of a notice of appeal. That subsection states, in its entirety, “The notice of appeal
shall contain a statement whether any transcript or statement of facts, testimony, and other
incidents of the case will be filed.” Rule 5A:6(b). Notably, Rule 5A:6(b) does not expressly
require a notice of appeal to list the case number of the case intended to be appealed.
“Succinctly stated, . . . two aspects of a notice of appeal are mandatory substantive
requirements: a notice of appeal must be timely filed, and it must ‘adequately identif[y] the case
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to be appealed.’”9 Evans v. Commonwealth, 61 Va. App. 339, 345, 735 S.E.2d 252, 254-55
(2012) (emphasis added) (quoting Roberson v. Commonwealth, 279 Va. 396, 407, 689 S.E.2d
706, 712-13 (2010)).
While the filing of a timely notice of appeal is a
prerequisite to an appellate court’s obtaining and exercising
jurisdiction over a case, not every requirement of the rule
prescribing when and how a notice of appeal is to be prepared and
filed implicates the court’s initial acquisition of jurisdiction. Thus,
we have never required that the notice of appeal be precise,
accurate, and correct in every detail before the appellate court can
acquire jurisdiction over the case in which the notice is filed.
Ghameshlouy v. Commonwealth, 279 Va. 379, 391, 689 S.E.2d 698, 704 (2010). “As a general
rule, insubstantial defects in a timely filed appeal ‘should not be fatal where no genuine doubt
exists about who is appealing, from what judgment, to which appellate court.’” Christian v. Va.
Dep’t of Soc. Servs., 45 Va. App. 310, 315, 610 S.E.2d 870, 872 (2005) (quoting Becker v.
Montgomery, 532 U.S. 757, 767-68 (2001)). “Neither the Rules nor prior case decisions
mandate dismissal of an appeal when an error of reference and not timely filing is at issue.”
Carlton v. Paxton, 14 Va. App. 105, 109-10, 415 S.E.2d 600, 602 (1992).
While it may have been a better practice to list the case numbers corresponding to the
termination cases in Houston’s notice of appeal, we conclude that Houston’s failure to do so did
not deprive this Court of appellate jurisdiction regarding the cases at issue. Although Houston
failed to list the case numbers corresponding to the termination cases in his notice of appeal, the
notice of appeal stated that Houston intended to appeal the termination decisions. Specifically,
the body of Houston’s notice of appeal stated:
MARTIN HOUSTON, SR. hereby appeals to the Court of Appeals
of Virginia from the final judgment of the Newport News Circuit
Court entered on or about September 6, 2016, which approved a
foster care plan goal of adoption and terminated Houston’s
9
Houston’s notice of appeal was timely filed in this case, and DHS does not contest this
issue.
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parental rights with respect to his biological children, [M.H.1,
M.H.2, M.H.3, and M.H.4].
We conclude that this express reference to the termination decisions sufficiently indicated that
Houston intended to appeal those decisions. Thus, Houston’s notice of appeal “adequately
identif[ied]” the termination cases as cases to be appealed to this Court. See Evans, 61 Va. App.
at 345, 735 S.E.2d at 255.
As Houston’s notice of appeal adequately established that he intended to appeal the
circuit court’s decision to terminate his residual parental rights, we deny DHS’s motion to
dismiss this case.
B. THE PETITIONS SIGNED BY NON-ATTORNEY DHS EMPLOYEES
In his first assignment of error, Houston contends that the circuit court erred by denying
his motion to dismiss the petitions filed by DHS. Houston argues that the petitions at issue were
void because they were signed and filed by social workers employed by DHS rather than
licensed attorneys. While we agree that the relevant petitions were signed by non-attorney DHS
employees rather than attorneys, we disagree with Houston’s position.
A recent case decided by this Court controls this issue. This Court addressed an identical
argument based on similar facts in Rudolph v. City of Newport News Dep’t of Human Servs., 67
Va. App. 140, 793 S.E.2d 831 (2016).10 In Rudolph, the appellants attacked the validity of
pleadings signed by non-attorney social workers employed by DHS. See id. at 143-44, 793
S.E.2d at 833. As these pleadings were not signed by licensed attorneys, the appellants argued
that they “constituted the unauthorized practice of law and deprived the courts below of active
jurisdiction.” Id. at 144, 793 S.E.2d at 833. The pleadings challenged by the appellants included
10
We acknowledge that this opinion was published on December 20, 2016, over three
months after the circuit court’s decisions were made in this case.
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petitions signed by social workers on behalf of DHS that requested the termination of the
appellants’ parental rights. Id.
This Court determined that the pleadings at issue were valid and did not constitute the
unauthorized practice of law. Id. at 150, 793 S.E.2d at 836. Citing legislative history and a prior
opinion of the Attorney General, this Court concluded that “the intent of the General Assembly
has been to allow employees of local departments of social services to sign form petitions on
behalf of their employer department of social services, provided that those petitions are form
petitions approved for use by the Supreme Court.” Id. at 149, 793 S.E.2d 836. As the petitions
at issue in Rudolph were approved form petitions, this Court held that the lower courts had active
jurisdiction to adjudicate the contested matters, and subsequently, affirmed the lower courts’
decisions. Id. at 150, 793 S.E.2d at 836.
The present case is indistinguishable from Rudolph. Like in Rudolph, social workers
employed by DHS signed petitions regarding the welfare of children and filed them on behalf of
their employer. These petitions were form petitions approved for use by the Supreme Court of
Virginia. Accordingly, we reject Houston’s argument concerning this issue. Pursuant to
Rudolph, we conclude that the pleadings at issue were valid pleadings that gave the circuit court
active jurisdiction to consider the cases before it.
C. HOUSTON’S MOTION TO QUASH
In his second assignment of error, Houston argues that the circuit court erred by denying
his motion to quash the subpoena duces tecum pertaining to his mental health records. Houston
contends that these records contained privileged confidential information that should not have
been disclosed to DHS or other third parties. He also argues that the mental health records at
issue were irrelevant to the proceedings.
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“[W]e review a trial court’s decision regarding a motion to quash the issuance of a
subpoena duces tecum under an abuse of discretion standard.” Ramsey v. Commonwealth, 63
Va. App. 341, 358, 757 S.E.2d 576, 584 (2014) (quoting Schwartz v. Commonwealth, 45
Va. App. 407, 450, 611 S.E.2d 631, 652 (2005)). “Only when reasonable jurists could not differ
can we say an abuse of discretion has occurred.” Tynes v. Commonwealth, 49 Va. App. 17, 21,
635 S.E.2d 688, 689 (2006) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607
S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)).
Code § 32.1-127.1:03 addresses health record privacy. Code § 32.1-127.1:03(H)
specifically addresses the requirements for a subpoena duces tecum requesting health records. In
turn, Code § 32.1-127.1:03(H)(6) addresses a motion to quash such a subpoena. That subsection
states:
In the event that the individual whose health records are being
sought files a motion to quash the subpoena, the court . . . shall
decide whether good cause has been shown by the discovering
party to compel disclosure of the individual’s health records over
the individual’s objections. In determining whether good cause
has been shown, the court . . . shall consider
(i) the particular purpose for which the information was collected;
(ii) the degree to which the disclosure of the records would
embarrass, injure, or invade the privacy of the individual;
(iii) the effect of the disclosure on the individual’s future health
care;
(iv) the importance of the information to the lawsuit or proceeding;
and
(v) any other relevant factor.
Code § 32.1-127.1:03(H)(6).
Upon review, we conclude that the circuit court did not abuse its discretion by denying
Houston’s motion to quash the subpoena duces tecum pertaining to the mental health records at
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issue. When the factors listed in Code § 32.1-127.1:03(H)(6) are considered in the context of the
present case, we find that the circuit court appropriately determined that good cause existed to
compel the disclosure of Houston’s mental health records.
In order to remedy the conditions that led to his children’s placement in foster care,
Houston was required to participate in different types of therapy to reduce the risk of physical
abuse that he posed to his children. As a condition of his children’s foster care plans, Houston
was required to participate in individual therapy and structural family therapy. Furthermore,
Houston’s parenting capacity assessment recommended that he participate in individual therapy,
structural family therapy, and marital therapy.
Despite these requirements, Houston stopped participating in individual therapy with the
therapist referred to him by DHS. Although he claimed that he attended individual therapy with
different mental healthcare providers, Houston refused to sign a consent form allowing DHS to
access his therapy records. Therefore, DHS had to file the subpoena duces tecum at issue to gain
access to Houston’s mental health records.
Houston’s participation in therapy was central to this case, and the mental health records
requested by the subpoena duces tecum were of great importance to these proceedings. See Code
§ 32.1-127.1:03(H)(6)(iv). The records at issue were required to assess whether Houston was:
1) actually participating in therapy, 2) participating in relevant therapy designed to address the
risks he posed to his children, and 3) making progress in therapy to eliminate the conditions that
led to his children’s placement in foster care. Accordingly, Houston’s contention that the records
were irrelevant is without merit.11
11
Houston also argues that the mental health records at issue were irrelevant because they
only contained information regarding marriage counseling. As Houston’s parenting capacity
assessment recommended that Houston participate in marital therapy, these records would have
been relevant even if they only contained information solely pertaining to marriage counseling.
Thus, this argument is also without merit.
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Furthermore, it should be noted that the circuit court took steps to protect the privacy of
the confidential information contained in Houston’s mental health records. While the circuit
court denied Houston’s motion to quash the subpoena duces tecum, it imposed conditions
designed to protect the information contained in the records. The circuit court prohibited any use
of the information contained in the mental health records outside of the current proceedings, and
prohibited the dissemination of the records to third parties. Thus, the circuit court took steps to
lessen “the degree to which the disclosure of the records would embarrass, injure, or invade the
privacy of [Houston].” See Code § 32.1-127.1:03(H)(6)(ii).
For these reasons, the circuit court did not err in denying the motion to quash the
subpoena duces tecum.
D. THE CIRCUIT COURT’S DECISION TO TERMINATE HOUSTON’S RESIDUAL
PARENTAL RIGHTS
In his third assignment of error, Houston challenges the circuit court’s termination
decision. Houston contends that the evidence presented by DHS failed to establish that the
criteria of Code § 16.1-283 had been satisfied. Specifically, he argues that the evidence did not
establish that he had failed to remedy the conditions that led to his children’s placement in foster
care. He also argues that the evidence failed to establish that the termination of his residual
parental rights was in the best interests of his children.12 We disagree with both of these
arguments.
12
In Houston’s assignment of error, he also contends that the evidence failed to prove
that “there was no less drastic alternative than termination.” However, he advances no argument
to support this contention. Rule 5A:20(e) requires an appellant’s opening brief to contain “the
argument (including principles of law and authorities) relating to each assignment of error.”
“[W]hen a party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is significant,
‘the Court of Appeals may . . . treat a question presented as waived.’” Parks v. Parks, 52
Va. App. 663, 664, 666 S.E.2d 547, 548 (2008) (quoting Jay v. Commonwealth, 275 Va. 510,
520, 659 S.E.2d 311, 317 (2008)). “Statements unsupported by argument, authority, or citations
to the record do not merit appellate consideration.” Atkins v. Commonwealth, 57 Va. App. 2,
20, 698 S.E.2d 249, 258 (2010) (quoting Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d
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“In matters of a child’s welfare, [circuit] courts are vested with broad discretion in
making the decisions necessary to guard and to foster a child’s best interests.” Thach v.
Arlington Cty. Dep’t of Human Servs., 63 Va. App. 157, 168, 754 S.E.2d 922, 927 (2014)
(quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,
463 (1991)). “When reviewing a decision to terminate parental rights, we presume the circuit
court ‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie Cty. Dep’t of
Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “Where the circuit court’s judgment
is based on evidence heard ore tenus, its decision to terminate a parent’s rights is entitled to great
weight and [the decision] ‘will not be disturbed on appeal unless [it is] plainly wrong or without
evidence to support it.’” Thach, 63 Va. App. at 168-69, 754 S.E.2d at 927-28 (quoting Logan,
13 Va. App. at 128, 409 S.E.2d at 463).
In the present case, the circuit court terminated Houston’s parental rights based on Code
§ 16.1-283(C)(2). The termination of residual parental rights pursuant to this subsection requires
two separate inquires. Id. at 169, 754 S.E.2d at 928. First, the circuit court must determine
whether the termination is in the best interests of the child. Id. Second, the circuit court must
determine whether DHS has met its burden of proving the specific requirements of subsection
(C)(2) of Code § 16.1-283. Id. The circuit court’s determination of both inquiries must be based
on clear and convincing evidence, and the circuit court may only terminate an individual’s
parental rights if it determines that the termination is in the best interests of the child and the
requirements of Code § 16.1-283(C)(2) have been met. Id. at 170, 754 S.E.2d at 928.
237, 239 (1992)). As Houston provided no legal argument to support this particular contention,
and we find this omission significant, we conclude that Houston has waived this issue.
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Code § 16.1-283(C)(2) permits a circuit court to terminate residual parental rights when:
[t]he 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.
Code § 16.1-283(C)(2) then states:
Proof that the parent or parents, without good cause, have failed or
been unable to make substantial progress towards elimination of
the conditions which led to or required continuation of the child’s
foster care placement in accordance with their obligations under
and within the time limits or goals set forth in a foster care plan
filed with the court or any other plan jointly designed and agreed to
by the parent or parents and a public or private social, medical,
mental health or other rehabilitative agency shall constitute prima
facie evidence of this condition. The court shall take into
consideration the prior efforts of such agencies to rehabilitate the
parent or parents prior to the placement of the child in foster care.
Accordingly, Code § 16.1-283(C)(2) is primarily concerned with a parent’s efforts to
remedy the situation that led to the placement of his or her children in foster care. See Code
§ 16.1-283(C)(2); Thach, 63 Va. App. at 170, 754 S.E.2d at 928. This statute requires a court “to
determine whether the parent has been unwilling or unable to remedy the problems [at issue]
during the period in which he has been offered rehabilitation services.” Toms, 46 Va. App. at
271, 616 S.E.2d at 772. Termination decisions based on Code § 16.1-283(C)(2) “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.” Id.
In the present case, the circuit court determined that Houston had failed to remedy the
conditions that led to his children’s placement in foster care and that the termination of his
parental rights was in the best interests of the children. These conclusions were not plainly
wrong or unsupported by the evidence.
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Houston’s children were placed in foster care due to the risk of physical abuse that he
posed to them. The children were taken into custody after Houston struck M.H.3 across the face
and injured him significantly – badly enough that he had to miss two days of school.
Furthermore, numerous allegations of additional abuse were voiced by his children while they
were in foster care. Houston’s parenting capacity assessment concluded that he posed a
“moderate to high” risk for engaging in the physical abuse of his children in the future.
In order to reduce the risk that Houston would continue to physically abuse his children,
DHS recommended that he take parenting and anger management classes and participate in
several types of therapy. Similarly, Gildea, the clinical psychologist who conducted Houston’s
parenting capacity assessment, recommended that he participate in multiple types of classes and
therapy. Notably, Gildea concluded that “Houston’s risk for engaging in child physical abuse in
the future is expected to remain in the moderate to high range without . . . therapeutic
interventions.”
Despite the recommendations of his parenting capacity assessment and the requirements
of his children’s foster care plans, Houston eventually stopped participating in therapy. He did
not attend structural family therapy from September 2014 through February 2015.13 Although he
sporadically participated in individual therapy after his children were placed in foster care,
Houston stopped attending individual therapy with the therapist referred to him by DHS in
December 2014.
While Houston claimed that he participated in individual therapy with other therapists
and individuals at his church after December 2014, he refused to sign a consent form allowing
DHS to access his therapy records. Accordingly, DHS could not monitor Houston’s
13
Although Houston resumed structural family therapy in February 2015, he eventually
quit participating in October 2015 after the JDR court terminated his parental rights.
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participation in individual therapy or measure his therapeutic progress after December 2014.
Although the records obtained through the subpoena duces tecum at issue in this case suggested
that Houston participated in individual therapy until May 2016, the records also suggested that
this therapy primarily consisted of marriage counseling rather than therapy specifically
structured to reduce his risk factors for physical abuse.
Based on Houston’s failure to continually participate in therapy and make measurable
therapeutic progress, DHS concluded that Houston had failed to remedy the condition that led to
his children’s placement in foster care. The DHS employees involved in Houston’s case
consistently testified that he continued to pose a risk of physical abuse. The DHS employees
were particularly concerned by Houston’s failure to admit that he ever physically abused his
children.
While the employees acknowledged that Houston had satisfied some of the requirements
imposed by his children’s foster care plans, they believed that Houston had failed to “fully
commit” to the plans or his therapy sessions. Hollingsworth, the Houstons’ family engagement
specialist, testified that Houston needed to commit to therapy in order to be able to identify the
risks he posed to his family. Riley, the Houstons’ structural family counselor, testified that
Houston had not made any progress in eliminating the conditions that led to his children’s
placement in foster care.
Houston’s testimony at the termination hearing supported the concerns of the DHS
employees. While Houston testified about the steps he had taken to comply with the
requirements of his children’s foster care plans, he refused to admit that he ever harmed M.H.3.
Instead, Houston admitted that he “spanked” M.H.3 “across the face” on the day in question, and
attributed M.H.3.’s injuries to an earlier fall. Although Houston admitted that these disciplinary
actions were inappropriate and claimed that he would not physically strike any of the children in
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the future, he never fully acknowledged his responsibility for the event that led to his children’s
placement in foster care.
Based on the evidence presented at the termination hearing, the circuit court reasonably
concluded that Houston had failed to remedy the conditions that led to his children’s placement
in foster care. Despite the numerous services offered to Houston throughout the three-year
period that his children had been in foster care,14 he still refused to acknowledge the problem that
created the original danger to the children. Houston’s sporadic therapy participation and his
refusal to accept responsibility for the injuries incurred by M.H.3 and the physical abuse of the
other children implied that he had failed to make substantial therapeutic progress.15 Thus, the
circuit court could have inferred that Houston continued to pose a risk of physical harm to his
children. For these reasons, the circuit court did not err by determining that the requirements of
Code § 16.1-283(C)(2) had been satisfied.
Furthermore, the circuit court reasonably determined that the termination of Houston’s
residual parental rights was in the best interests of the children.
In determining what is in the best interests of the child, the circuit
court must evaluate and consider many factors: the age and
physical and mental condition of the child; the age and physical
and mental condition of the parent; the relationship existing
between the parent and the child; the needs of the child; the role
the parent has played, and will play in the future, in the upbringing
and care of the child; and any other such factors that are
necessary.
14
“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 responsibilities.”
Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
15
We note that Houston’s failure to make substantial therapeutic progress in accordance
with the goals of his children’s foster care plans constituted prima facie evidence that he had
failed to remedy the conditions that led to his children’s placement in foster care. See Code
§ 16.1-283(C)(2).
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Thach, 63 Va. App. at 169, 754 S.E.2d at 928 (emphasis added). As previously stated, circuit
courts are vested with broad discretion in determining what is in a child’s best interests. Id. at
168, 754 S.E.2d at 927.
In the present case, the circuit court believed that Houston had failed to remedy the
conditions that led to his children’s placement in foster care and that he continued to pose a risk
to the children. Based on the evidence presented by DHS, there was a “moderate to high” risk
that Houston would continue to physically abuse his children in the future.
Moreover, Houston’s children were living in stable foster care placements with relatives
who wanted to adopt them. The children had adjusted well to living with the Langs, and the
Langs met their physical, social, emotional, and therapeutic needs. While each of the children
had behavioral and psychological issues requiring therapeutic intervention, they had made
“progress” while living with the Langs. The adoption of the children by the Langs would
provide them with a caring, stable, and permanent home.
Under the circumstances presented in this case, the circuit court did not err by
terminating Houston’s residual parental rights.16 The evidence established that Houston had
failed to remedy the conditions that led to his children’s placement in foster care and that the
termination of his residual parental rights was in the children’s best interests.
16
As the evidence was sufficient to support the circuit court’s decision to terminate
Houston’s residual parental rights pursuant to Code § 16.1-283(C)(2), it was also sufficient to
support the circuit court’s decisions to enter permanency planning orders with the goal of
adoption and to approve the foster care plans with the goal of adoption. See Najera v.
Chesapeake Div. of Soc. Servs., 48 Va. App. 237, 241, 629 S.E.2d 721, 722 (2006) (“A
preponderance-of-the-evidence standard governs judicial review of the foster care plan
recommendations, while the more stringent clear-and-convincing-evidence standard applies to
the ultimate termination decision.”). We also note that the evidence supported the denial of
Houston’s motion to strike.
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E. THE AGE OF DISCRETION ISSUE
On appeal, Houston also contends that the circuit court erred by determining that M.H.1
and M.H.2, his two oldest children, were not of the age of discretion to object to the termination
of his parental rights pursuant to Code § 16.1-283(G).17 We conclude that Houston waived this
appellate argument by failing to present it to the circuit court.
Rule 5A:18 states, in pertinent part, “No 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, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” Pursuant to Rule 5A:18, we “will not consider an argument on appeal which was not
presented to the trial court.” Tackett v. Arlington Cty. Dep’t of Hum. Servs., 62 Va. App. 296,
315, 746 S.E.2d 509, 519 (2013) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998)).
In the present case, Houston failed to argue that M.H.1 and M.H.2 were of the age of
discretion to object to the termination of his parental rights. In fact, he never referenced Code
§ 16.1-283(G) at any point during the proceedings in the circuit court. While counsel for Crystal
17
Code § 16.1-283(G) states:
Notwithstanding any other provisions of this section, residual
parental rights shall not be terminated if it is established that the
child, if he is 14 years of age or older or otherwise of an age of
discretion as determined by the court, objects to such termination.
However, residual parental rights of a child 14 years of age or
older may be terminated over the objection of the child, if the court
finds that any disability of the child reduces the child’s
developmental age and that the child is not otherwise of an age of
discretion.
While we do not reach the merits of this argument, we note that M.H.1 was thirteen years
old at the time of the termination hearing and M.H.2 was twelve years old at the time of the
termination hearing. We also note that M.H.1 had repeatedly expressed that she did not wish to
return to the care of her parents and that M.H.2 was autistic. Additionally, we acknowledge that
the children did not testify in this case.
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Houston presented this argument to the circuit court, Houston did not join this argument. “[O]ne
party may not rely on the objection of another party to preserve an argument for appeal without
expressly joining in the objection.” Linnon v. Commonwealth, 287 Va. 92, 102, 752 S.E.2d 822,
828 (2014).
As Houston never argued that his children were of the age of discretion to object to the
termination of his parental rights, we conclude that appellate review of this issue is barred by
Rule 5A:18. Accordingly, we do not consider the merits of this argument.
III. CONCLUSION
In summary, we deny DHS’s motion to dismiss this case because Houston’s notice of
appeal adequately identified the cases that he intended to appeal. We affirm the circuit court’s
decisions, however, because: 1) the signatures of the non-attorney DHS employees did not
invalidate DHS’s termination petitions, 2) the circuit court did not err in denying Houston’s
motion to quash the subpoena duces tecum regarding his mental health records, and 3) the
evidence presented in this case established the criteria set forth in Code § 16.1-283(C)(2), and
therefore, supported the circuit court’s decision to terminate Houston’s residual parental rights
regarding each of his four children. For these reasons, the circuit court’s decisions are affirmed.
Affirmed.
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