Pascual Martinez Flores, s/k/a, etc. v. Harrisonburg Rockingham Social Services District

COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Malveaux and Senior Judge Annunziata
UNPUBLISHED
AMBROSIA de JESUS MARTINEZ, S/K/A
AMBROSIA MARTINEZ de JESUS
v. Record No. 0090-18-3
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
PASCUAL MARTINEZ FLORES, S/K/A
PASCUAL MARTINEZ-FLORES
v. Record No. 0097-18-3
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
PASCUAL MARTINEZ FLORES, S/K/A
PASCUAL MARTINEZ-FLORES
MEMORANDUM OPINION*
v. Record No. 0578-18-3 PER CURIAM
OCTOBER 16, 2018
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
PASCUAL MARTINEZ FLORES, S/K/A
PASCUAL MARTINEZ-FLORES
v. Record No. 0579-18-3
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
PASCUAL MARTINEZ FLORES, S/K/A
PASCUAL MARTINEZ-FLORES
v. Record No. 0580-18-3
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
(Tania L. Perez Rodriguez; John Elledge & Associates, on brief), for
appellant Ambrosia de Jesus Martinez, s/k/a Ambrosia Martinez de
Jesus. Appellant submitting on brief.
(Roland M. L. Santos, on brief), for appellant Pascual Martinez
Flores, s/k/a Pascual Martinez-Flores. Appellant submitting on
brief.
(Kim Van Horn Gutterman, Assistant County Attorney; Sherwin
John Jacobs, Guardian ad litem for the minor children, on briefs), for
appellee. Appellee and Guardian ad litem submitting on briefs.
Ambrosia de Jesus Martinez, s/k/a Ambrosia Martinez de Jesus, (mother) and Pascual
Martinez Flores, s/k/a Pascual Martinez-Flores, (father) are appealing the orders terminating
their parental rights and approving the foster care goal of adoption. Mother argues that the
circuit court erred in finding that the Harrisonburg Rockingham Social Services District (the
Department) “presented clear and convincing evidence that terminating mother’s parental rights
was appropriate and in [the children’s] best interest pursuant to Va. Code Ann. § 16.1-283.”
Father argues that the circuit court erred in finding that he “did not remedy substantially the
conditions which led to the removal of the children under Va. Code Ann. § 16.1-283(C) when
the evidence revealed that [father and mother] completed most of the tasks assigned to them
pursuant to the foster care plan.” Upon reviewing the record and briefs of the parties, we conclude
that the circuit court did not err. Accordingly, we affirm the decision of the circuit court.
BACKGROUND
“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.’” Farrell v. Warren Cty.
Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.
Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).
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Mother and father are the biological parents to E. and A., who are the subject of this appeal,
as well as K. and C.1 Mother and father are from Oaxaca, Mexico. Their primary language is an
indigenous dialect, Triqui; however, they also can communicate in Spanish.
From April 2010 until January 2016, the Department and neighboring Shenandoah County
Department of Social Services (Shenandoah County DSS) received a total of seventeen complaints
regarding the parents and the children.2 The complaints included allegations of physical abuse,
inadequate shelter, lack of food, hygiene problems, lack of supervision, bizarre discipline, and
medical neglect. The physical abuse and bizarre discipline complaints concerned E. and involved
incidents in which E. had bruises, scratches, and a black eye.3 One of the complaints, in June 2011,
resulted in father pleading guilty to assault and battery against E. Over the years, the Department
had entered into safety plans with the family, and father had agreed not to use corporal punishment.
The safety plans were written in “very simple Spanish,” so the parents could understand. The
Department offered information to the family about the food pantry, English classes, and the PEAS
parenting class. The family received services for C., including a home health care nurse and a
hospice nurse. However, the home health aide stopped coming to the house after father had locked
her inside in January 2013, and the parents later stopped allowing the hospice nurse into the house.
The Shenandoah County DSS offered services to E., such as counseling, medication management,
case management, therapeutic day treatment, and mentoring. The parents declined parenting
1
K. is the oldest child and lives with her grandmother in Mexico. C. was born with
Niemann-Pick disease, Type C, and died, at the age of three, in 2014.
2
In 2010, the family lived in Rockingham County, and by the time of the February 9,
2012 complaint, they had moved to Shenandoah County. They moved back to Rockingham
County sometime between December 16, 2013 and July 28, 2015, when the Department received
the next complaint.
3
The hygiene and medical neglect complaints concerned C.
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education classes, and the Department was “unclear” as to what services the Shenandoah County
DSS offered to the parents to address the physical abuse issues.
On January 7, 2016, the Department received the seventeenth complaint, which alleged that
E. was being physical abused. E. reported that “a big fat guy recently moved in” and that E. had to
sleep on the floor. E. stated that “he was sleeping and the big fat guy came and ripped the blanket
off of him and hit him with a belt on his legs and near his groin area.” E. said that his mother
became angry, told him to get in the shower, and hit him repeatedly with a shoe. Next, E. said that
the “big fat guy turned the water all the way up and put him in the shower with his clothes on,” and
mother was angry at E. for using all of the hot water. On January 14, 2016, E. refused to speak with
the social worker because he was worried that his parents would be angry if he talked with her. On
February 17, 2016, the social worker met with mother and father, and father reported that A. was
good and listened, unlike E. Father reported that E. was “not right in the head,” and father did not
know “what to do because he [could not] hit him [E.] anymore because the agency had indicated he
could not.” On February 18, 2016, father told the principal at E.’s school that E. was a liar and not
to call social services every time E. says something. On March 15, 2016, the Department filed a
petition for an emergency removal of E. and A. At the time of the removal, E. was ten years old,
and A. was three years old.
On March 15, 2016, the Harrisonburg Rockingham Juvenile and Domestic Relations
District Court (the JDR court) entered emergency removal orders for E. and A. The JDR court
adjudicated that E. and A. were abused or neglected and entered dispositional orders on August 10,
2016. The parties stipulated to the facts for the abuse and neglect and how the children came into
foster care.
Initially, E. and A. were placed in the same foster home, but in order to better address his
behavioral and emotional needs, the Department moved E. to Childhelp, a residential treatment
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center, on April 19, 2016. In February 2017, E. was discharged from Childhelp and placed in a
different foster home.
While the children were in foster care, the Department required mother and father to “accept
their role in the removal of the children and acknowledge the need for increasing their parental
capacity.” Mother and father also had to maintain stable housing and employment. Mother and
father needed to “demonstrate the ability to provide a home that is safe, stable, and free from
physical abuse” and show that they understood age-appropriate disciplinary techniques. The
Department offered weekly supervised visitation and referred mother and father to individual
counseling, parenting classes, and a parent mentor.
The parents attended the parenting classes, which were taught in Spanish. Father
participated in individual counseling. His counselor reported that father asked questions and was
engaged, but father did not believe that he needed therapy. Although mother and father initially
went to counseling, they stopped going in early 2017. A Spanish-speaking parent mentor was
assigned to work with mother and father from August 2016 through May 2017. The parents
consistently met with the parent mentor and discussed cultural differences and appropriate parenting
in the United States versus Mexico. The parent mentor also accompanied them to their visits with
A. and discussed appropriate behavior.
Beginning with the removal and continuing throughout the case, the parents denied abusing
E. or A. and believed that the children were removed because of E. and his behaviors. Mother and
father stated that E. lied about the abuse and that E. was a “bad child.” The only time that mother
and father admitted that one of them abused A. or E. was when father was arrested for assault and
battery against E.
Neither parent showed an understanding of mental illness. Father told the social worker that
E. should not be taking any medication, and father told E. to stop taking his medication because it
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made him “more crazy.” Father also asked the social worker to give E. a blood test, so that they can
determine how to “fix” his brain. Father told a Childhelp therapist that E. needed “more intensive
treatment or alteration to his brain.” Mother and father told E. that “the only thing [he] can do to
improve himself is pray.” Mother and father denied that E.’s behavior could be related to abuse he
sustained.
On March 7, 2017, the Department filed petitions to terminate mother and father’s parental
rights to E. and A. On April 19, 2017, the JDR court terminated mother and father’s parental rights
and approved the goals of adoption; mother and father appealed the JDR court’s rulings to the
circuit court.
On January 11, 2018, the parties appeared before the circuit court. At the beginning of the
trial, mother and father stated that they did not contest the facts as to how the children came into
foster care, and the Department stipulated that the parents complied with the majority of the
services. The Department explained that the main issue was whether mother and father learned
from the services provided and applied that knowledge appropriately. Mother and father argued that
they did not understand everything that was asked of them because services were provided in
Spanish, which was not their primary language.
The Department proffered that E. has been in the same foster home since late February
2017, and it is a potential adoptive placement. The Department presented evidence that A. has been
in the same foster home since he entered foster care in March 2016. The foster father testified that
initially both A. and E. were placed together in the home. The foster father said that E. was “very
difficult[,] . . . very angry, defiant, moody, . . . [and] dangerous.” Due to concerns about their
safety, the foster parents informed the Department that they were not equipped to handle E. and his
needs, so the Department removed E. from their home. When A. first arrived, he did not speak
English and used “foul language.” Now, however, A. speaks and understands English. The foster
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father testified that A. was thriving and was “kind of a regular kid now.” The foster father indicated
that he and his wife would like to adopt A.
Since A. entered foster care, he has seen a psychologist, Dr. Ronda Weber. Dr. Weber is
fluent in Spanish, and initially, she tried to speak with A. in Spanish. However, A. was upset that
she tried talking with him in Spanish, so they spoke English. Dr. Weber testified that initially A.
was “hyper vigilant at a level that would not be typical for a child his age.” Dr. Weber diagnosed A.
with post-traumatic stress disorder. A. had a preoccupation with food and being fed, and he
displayed fearfulness and had nightmares. Dr. Weber testified that in the past year and a half, A.
has become “less hyper vigilant” and is not as fearful, especially when he stopped visiting with
mother and father. Dr. Weber commented that A. did not want to see mother and father and did not
express any loss or grief concerning them. Dr. Weber even noted that A. showed more bonding
behavior with his foster mother after living with her for four months than he ever showed toward
mother. Dr. Weber opined that contact between A. and mother and father would cause A. to
“regress in his improvement” and “be very confused and feel more insecure about his current
situation.”
The social worker testified about some of the visits between mother, father, A., and E. On
January 24, 2017, the parents were visiting with A. and playing a game. The social worker noticed
that A. spoke with her and the parent mentor, but not mother and father “until the last minute.” The
social worker stated that the parent mentor spoke in Spanish, but A. responded in English. In late
February 2017, E. started visiting with A., mother, and father at the Department’s office. A. and E.
mainly spoke in English, but occasionally spoke in Spanish. The social worker testified about a
visit on March 21, 2017, when E. had to leave early, and A. then stopped responding to mother and
father. The social worker commented that A. acted differently during the visitations than at his
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foster home because when A. was in the foster home, he talked non-stop and was very playful and
sociable.
After the JDR court hearing on April 19, 2017, the Department spoke with mother and
father and instructed them not to speak with the children about the court matters. On May 23, 2017,
mother and father visited with E. and A., and due to the parents’ actions during the visit, this was the
last visit between the parents and the children. The social worker testified that while mother, father,
E., and A. were eating, mother told E. that “he wasn’t going to get to eat food like this anymore
because he wasn’t Mexican anymore and he was American now.” Mother showed him a
photograph of C. and told E. that “this was the baby who died and now it’s like you’re dying too.”
Both mother and father told E. that “they were suffering because of [E.].” E. cried. The social
worker asked mother and father to “stop talking about that” and to enjoy the time that they had with
the children. Father started to argue with the social worker, and mother continued to tell E. that he
was going to “have another mom and said that she was going to have to sell all of his things.” The
social worker again asked them to stop, and father told her that they could say whatever they wanted
to their children. The social worker asked both parents to leave the visitation room, and reminded
them that they were not to discuss the court actions and foster care with E. and A. When father
started to argue with her, the social worker told them that they could continue to discuss it, but that
they would lose what visitation time they had left. Mother and father went back into the visitation
room.
Dr. Weber also witnessed the visitation on May 23, 2017, and corroborated the social
worker’s account of what had transpired. Dr. Weber testified that once mother and father left the
room, E. stopped crying and started playing with A. Dr. Weber said that the children talked and
played as if nothing had happened.
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The Department also presented evidence about its monthly meetings with mother and father,
beginning in February 2017. Mother and father continued to believe that the children were placed
in foster care because of the “one time that [father] had abused [E.] and all of the lies that had
happened after that.” Mother and father repeatedly said that E. had to change because he was “a
liar” and “crazy.” At no point did the parents show any understanding of how their actions affected
the children. Instead, the parents focused on how having the children in foster care affected them.
For example, mother said that it was difficult not having E. at home because she relied on him to
communicate in English with other people.
Father admitted to speaking with the social worker prior to the May 23, 2017 visit about
what to say and not say to the children. However, father testified that he did not understand
everything that the social worker told him because he did not speak Spanish well. Father explained
that he was “playing” when he told E. that he was no longer going to live with them and no longer
eat Mexican food. He said that he did not intend to make E. cry.
Mother testified that she started learning Spanish in Mexico and continued to learn Spanish
once she came to the United States; however, her primary language is Triqui. Mother explained that
she did not understand all of the words in the Spanish-speaking parenting classes. Mother,
however, admitted that she spoke to E. and A. in Spanish, not Triqui.
After hearing the evidence and arguments, the circuit court issued its ruling and entered
orders terminating mother and father’s parental rights and approving the goal of adoption. These
appeals followed.
ANALYSIS
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 558, 811 S.E.2d
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835, 840-41 (2018) (quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128,
409 S.E.2d 460, 463 (1991)). “Where, as here, the court hears the evidence ore tenus, its finding
is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without
evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190,
717 S.E.2d 811, 814 (2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App.
15, 20, 348 S.E.2d 13, 16 (1986)).
Both mother and father argue that the evidence was insufficient to support a termination of
their parental rights. Mother contends that she complied with the Department’s requirements and
that “her failure to adequately express that she had internalized the services to [the Department’s]
satisfaction was due to a language barrier.” Likewise, father asserts that he completed most of the
Department’s requirements, but the fact that the parents speak Triqui “greatly handicaps their ability
to progress in the counseling that the parents were provided, primarily because their Spanish is
limited and most of the counseling was in Spanish.”
The circuit court made a factual finding that “there is not a language issue when it came to
the parents’ performance with the services provided.” The circuit court held that mother and father
“were able to converse with various service providers” and noted that “they would respond
appropriately and on topic which shows their understanding.” The circuit court further found that
there was “no evidence of a cultural issue that [was] raised by the father.”
“We give ‘great deference’ to the trial court’s factual findings and view the facts in the light
most favorable to the prevailing party below.” Andrews v. Creacey, 56 Va. App. 606, 619, 696
S.E.2d 218, 224 (2010) (quoting Blackson v. Blackson, 40 Va. App. 507, 517, 579 S.E.2d 704, 709
(2003)). “On appeal, we will not reverse findings of fact ‘unless plainly wrong.’” Budnick v.
Budnick, 42 Va. App. 823, 834, 595 S.E.2d 50, 55 (2004) (quoting Gilman v. Gilman, 32 Va. App.
104, 115, 526 S.E.2d 763, 768-69 (2000)).
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Contrary to the parents’ arguments, the evidence supports the circuit court’s finding that
language was not a barrier for mother and father. The Department provided the parents with
Spanish-speaking social workers and a Spanish-speaking parent mentor. The Department referred
them to a Spanish parenting class. The parents did not inform the social workers that they did not
understand, and in fact, conversed in Spanish with the Department and the children.
Furthermore, the circuit court did not err in terminating mother and father’s parental rights
and finding that termination of parental rights was in the children’s best interests. The circuit court
terminated mother and father’s parental rights pursuant to Code § 16.1-283(C)(2), which states that
a court may 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.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,
271, 616 S.E.2d 765, 772 (2005). “Considerably more ‘retrospective in nature,’ subsection C
requires the court to determine whether the parent has been unwilling or unable to remedy the
problems during the period in which he has been offered rehabilitation services.” Id. (quoting
City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d
463, 466 (2003)).
Although mother and father complied with most of the Department’s requirements, they did
not apply what they had been taught or show an understanding of how their actions affected the
children. The circuit court held, “When it comes to the issue of good cause in the termination,
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again, there is no evidence that cultural or language issues rose to that level of good cause, nor as to
the parents’ behavior.” Despite all of the services, including the parenting classes and the parent
mentor, mother and father never comprehended their role in the placement of the children in foster
care. In February 2017, mother told the social worker that the children were in foster care because
“of the one time that [father] had abused [E.] and all of the lies that had happened after that.”
Mother and father repeatedly focused on how the placement of the children had affected them, as
opposed to how their actions affected the children. At the last visitation in May 2017, mother and
father told the children that they were no longer Mexican and would not eat Mexican food because
they had new families. Mother told E. that it was like he was dying and that she was going to sell
all of his clothes and toys. Mother and father testified that they did not realize that their statements
would upset E. Therefore, in spite of all of the services provided to the parents over the years,
mother and father had not determined how to apply what they learned to interacting with their
children.
At the time of the circuit court hearing, E. and A. had been in foster care for almost two
years. The Department presented evidence that A. was doing well in foster care and in an adoptive
placement. E. initially had displayed behavioral issues, but after receiving treatment at Childhelp,
he was doing well in a foster home, which was a possible adoptive placement. “It is clearly not in
the best interests of a child to spend a lengthy period of time waiting to find out when, or even if,
a parent will be capable of resuming his [or her] responsibilities.” Tackett v. Arlington Cty.
Dep’t of Human Servs., 62 Va. App. 296, 322, 746 S.E.2d 509, 522 (2013) (quoting Kaywood v.
Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)).
The evidence supports the circuit court’s finding that the parents had been “unwilling or
unable within a reasonable period of time not to exceed twelve months from the date the [children
were] placed in foster care to remedy substantially the conditions which led to or required
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continuation of the child[ren]’s foster care placement.” The circuit court did not err in terminating
mother and father’s parental rights pursuant to Code § 16.1-283(C)(2) and approving the goal of
adoption for E. and A.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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