Sania L. Mikhail v. Fairfax County Department of Family Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
SANIA L. MIKHAIL
MEMORANDUM OPINION*
v. Record No. 0215-13-4 PER CURIAM
JULY 23, 2013
FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
(Joseph W. Bolognesi; Wayne D. Berthelsen, Guardian ad litem for
appellant, on briefs), for appellant.
(David P. Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy
County Attorney; May S. Kheder, Assistant County Attorney;
Kathleen Rust Bell, Guardian ad litem for the minor child, on brief),
for appellee.
Sania L. Mikhail (mother) appeals an order terminating her parental rights to her child, A.E.
Mother argues that the trial court erred in terminating her parental rights because the Department of
Family Services (the Department) failed to prove by clear and convincing evidence, that (1) mother
was, without good cause, unwilling or unable within a reasonable period of time, to remedy
substantially the conditions which led to or required continuation of the placement of the child in
foster care; (2) the termination of parental rights was in the best interests of the child; (3) the
Department had provided reasonable and appropriate rehabilitative services, particularly anger
management services, to mother prior to the termination of her rights; and (4) the Department had
provided mother with sufficiently frequent and proper visitation with the child after the child was
placed in foster care. Mother further argues that the trial court erred by denying her motion to strike
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the Department’s evidence on the grounds that the Department had failed to meet its burden of
proof. Upon reviewing the record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
BACKGROUND
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
A.E. is the child of mother and Atia Elyass (father). A.E. was born in 2004. The
Department initially became involved with the family in 2008 because of a concern about lack of
supervision. The Department provided numerous services to the family.
In March 2009, mother attempted suicide after fighting with father. Mother was
hospitalized, and a safety plan was put into place with father as the primary caretaker for A.E.
The family sought reunification services from the Department, which the Department attempted
to facilitate. In May 2009, there was another incident regarding lack of supervision. Another
safety plan was put into place with father having primary responsibility for A.E.; however, father
was unable to follow through and left daily tasks to mother.
In early October 2010, mother called the Department and told the social worker that she
was frustrated and could not care for the child. The Department also received reports that the
child had been exposed to domestic violence and mother’s mental instability. On October 8,
2010, the Department removed the child from the parents’ custody after it learned that the child,
who was six years old at the time, left the home while mother and father were arguing. The child
walked across a busy street to a grocery store parking lot at night. The Department also filed a
petition alleging that the child was abused and neglected.
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Mother has bipolar disorder, borderline personality disorder, and post-traumatic stress
disorder. When the Department removed A.E. from the home, mother had not been compliant
with her medication and mental health treatment. She was hospitalized in a psychiatric hospital,
and a guardian ad litem was appointed to represent her best interests.
On November 12, 2010, the Fairfax County Juvenile and Domestic Relations District
Court (the JDR court) entered an order finding that the child was an abused and/or neglected
child. The JDR court approved the foster care plan with the goal of return home.
Mother was ordered to undergo a neuropsychological evaluation and a parent-child
assessment and to follow any treatment recommendations. Mother also was ordered to be
compliant with her mental health treatment.
In November 2010, Dr. Carolyn Corbett conducted a parent-child assessment on mother,
father, and the child. Mother and father were argumentative during the parent-child assessment.
They were unable to follow Dr. Corbett’s lead with structure and setting limits for the child.
Father would try to interact with the child, but mother would become agitated and yell at father.
Father eventually withdrew. The child withdrew and played by himself while his parents were
arguing. Dr. Corbett concluded, “Prognosis for improvement is severely guarded.”
In November 2010, Dr. William Ling conducted a neuropsychological evaluation on
mother and a psychological evaluation on father. Dr. Ling concluded that mother’s
psychological problems affected her parenting capacity. He stated that mother’s prognosis for
her ability to parent a child was “guarded,” and the likelihood that it would change was “highly
unlikely.”
In April 2011, mother attended parenting classes and completed them.
In June 2011, mother and father started couples’ therapy with Dr. Manal Abukishk.
Mother could not control her anger and was verbally abusive toward father. Dr. Abukishk held
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five joint sessions before deciding to see mother and father individually. Mother’s uncontrolled
rage, which manifested itself even though she was on medication, affected her ability to
successfully complete therapy. She stopped individual sessions in May 2012.
The parents were reevaluated by Dr. Corbett and Dr. Ling. Despite mother having
received services, Dr. Corbett remained concerned about mother’s ability to parent A.E.
Dr. Corbett explained that mother’s personality disorders were “ingrained and extremely
resistant to treatment.” Her prognosis remained “extremely guarded.” Dr. Ling also remained
concerned about mother’s ability to parent the child.
While the child was in foster care, mother had regular visits with him, including
visitations at her home. However, mother had a history of being hostile toward the social
worker. If mother became stressed or did not understand something, she would become volatile
and threaten the social worker. On one occasion in March 2012, she became extremely hostile
and could not calm down. As the driver was leaving with the child, mother yelled at A.E. “to go
for adoption if A.E. wanted to,” and she banged on the hood of the car. After that incident, all
visitations were conducted at the Department’s office.
On November 28, 2011, the JDR court held a permanency planning hearing and approved
an interim plan with a goal of return home and a concurrent goal of adoption.
The Department subsequently filed a petition to terminate mother’s parental rights and
filed a foster care plan with the goal of adoption. During this time period, mother participated in
Dialectical Behavior Training (DBT) and the ADAPT program in order to better control her
behavior and improve her anger management skills. On September 4, 2012, the JDR court
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entered an order terminating mother’s parental rights and approved the goal of adoption.1
Mother appealed to the circuit court.
There was evidence that the child was doing well in foster care. The child has become
attached to the foster parents. Since November 2010, the child has been in therapy with
Dr. Sharon Lucas. Dr. Lucas diagnosed the child with attention deficit hyperactivity disorder,
post-traumatic stress disorder, anxiety not otherwise specified, and dysthymic disorder.
Dr. Lucas testified that the child was afraid to visit with mother unless another person was
present “to protect” the child. She opined that the child’s prognosis was good, so long as the
child could remain in the same environment with the foster parents.
The trial court heard evidence on November 27 and 28, 2012 and January 2 and 16, 2013.
After hearing all of the evidence and argument, the trial court terminated mother’s parental rights
and approved the foster care plan with the goal of adoption.2 This appeal followed.
ANALYSIS
Termination of parental rights – Issues 1-3
“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.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16
(1986) (citations omitted).
The trial court terminated mother’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 twelve
1
The JDR court also terminated father’s parental rights, and father appealed to the circuit
court.
2
The trial court also terminated father’s parental rights, and father appealed the ruling to
this Court. See Elyass v. Fairfax Cnty. Dep’t of Family Servs., Nos. 0667-13-4 and 0684-13-4.
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months from the date the child was placed in foster care to remedy
substantially the conditions which led to or required continuation
of the child’s foster care placement, notwithstanding the
reasonable and appropriate efforts of social, medical, mental health
or other rehabilitative agencies to such end.
Mother argues that the trial court erred in finding that she had been unable or unwilling,
within a reasonable period of time, to remedy substantially the conditions which led to or
required continuation of A.E. being in foster care. When A.E. entered foster care, the
Department was concerned with mother’s ability to supervise the child, domestic violence in the
home, and mother’s volatility. For approximately two years, the Department worked with the
family. Initially, the goal was to return the child home. The Department provided numerous
services to the family; however, mother was unable to demonstrate her ability to safely and
effectively parent A.E.
For example, in March 2012, after more than a year of services, mother became angry
during a visitation. The home based worker was late, and the driver had to take the child to a
nearby restaurant to go the bathroom. Mother became enraged, even though the child was
coming back for visitation. Mother could not calm down, despite attempts by the social worker
and home based worker. At that time, mother had over a year of counseling and services, but she
still was unable to control her anger. She exploded at the social workers and yelled at the child.
She had not improved the conditions which led to the child’s placement in foster care.
In addition, despite the fact that the parents had a history of domestic violence and could
not participate in joint counseling, they continued to remain together. Mother continued to yell
and berate father. They could not participate in visitations together because she would become
too angry. Both father and the child would withdraw to avoid mother’s anger. Mother could not
see how her behavior impacted A.E.
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Mother contends the Department erred by not providing her with reasonable and
appropriate rehabilitative services, especially anger management services.
The Department provided mother with numerous services, including at home services,
parenting classes, individual therapy, and couples therapy. The counselors in individual therapy
and couples therapy addressed mother’s anger and volatility. They offered ways for her to
control her behavior and anger. However, after more than a year and a half of services, the
counselors remained “guarded” about mother’s ability to parent A.E. Mother continued to have
instability and volatility, despite participating in counseling. Mother lacked the insight to modify
her behavior. In contrast, mother’s psychiatrist testified that mother is better at controlling her
emotions, and further testified, “I think she may be able to handle different pressures in her life
while she’s continuing her medication as well as therapy.” The trial court noted that the
psychiatrist testified that with respect to her bipolar disorder, mother would be in treatment her
whole life.
When considering termination of parental rights, “the paramount consideration of a trial
court is the child’s best interests.” Logan, 13 Va. App. at 128, 409 S.E.2d at 463.
Although there was evidence that mother loved her child, she did not act in his best
interests. Visitations with mother were often chaotic. The child told a counselor that the child
wanted to visit mother only when a third person was present “to protect” the child. She would
force food on the child during visitations, despite being told not to do so.
Mother was unable to show that she could meet the child’s emotional needs. The child’s
counselor spoke with the parents at a family partnership meeting in March 2012. As the
counselor explained the child’s needs, she noticed “how difficult it was for [A.E.’s] mother to
hear maybe some of the things that she felt uncomfortable with and, unfortunately, she became
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very irritable and angry in the session . . . .” Several counselors remained “guarded” about
mother’s ability to parent the child.
Shortly before the hearing, mother still could not see how her choices might negatively
impact the child. She learned that she was pregnant and wanted to tell A.E. The counselors told
her that it could be “very disrupting” to the child and told her not to tell A.E. Mother could not
understand how or why A.E. might be upset to learn that she was pregnant. Mother testified that
she disagreed with the counselor’s decision not to tell A.E. about the pregnancy because “in my
feeling inside, [A.E.], would be happy for that. Even if A.E. don’t happy, A.E. will know there
is a family for A.E. waiting for him.” She further stated, “I have my right to tell A.E. or not.”
Despite the admonition from the counselor not to tell the child about the pregnancy, mother told
father to tell the child about the pregnancy. Father did, and the child became upset. The foster
mother said that she had not seen the child that upset since the child first came to live with them
over two years earlier. Mother’s lack of concern or understanding about the child’s feelings
continued. Even at the trial, she did not understand why A.E. might be upset. Mother
disregarded the counselor’s advice and did what she wanted to do.
When it issued its ruling, the trial court noted that the Department removed the child in
2010 in order to protect the child because “[t]he parents of this child were so unable to get along
with each other and so neglectful of the child’s best interests.” The trial court summarized the
evidence from the numerous witnesses, including the parties, the social workers, and the
counselors. The trial court concluded, “Neither of these individuals – neither the mother nor the
father – each of whom, both of whom love this child, are able in the Court’s opinion, by clear
and convincing evidence, to parent either individually or even more dramatically together . . . .”
As a result, the trial court held that it was in the best interests of the child that mother and
father’s parental rights be terminated.
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The child had been in foster care for over two years when the trial court issued its ruling.
Mother had not been able to remedy the situation that led to the child being placed in foster care.
Despite counseling and other services, several counselors expressed concern about mother’s
ability to parent A.E.
“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.”
Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
The trial court did not abuse its discretion in terminating mother’s parental rights. There
was sufficient evidence to prove that mother was unable to remedy the conditions which led to
the child’s placement in foster care and that the Department had provided appropriate services to
mother. Furthermore, there was sufficient evidence to prove that termination of mother’s
parental rights was in the child’s best interests.
Visitation – Issue 4
Mother argues that there was “insufficient evidence to show that [t]he mother, Sania
Mikhail, had been provided sufficiently frequent and proper visitation with the child, A.E., after
the child was placed in foster care.” Mother contends her bond with the child was affected
negatively by visiting her child once per week. She asserts her visitations should have increased
as she complied with the Department’s requests.
The trial court did not make a ruling that the Department provided appropriate, or
inappropriate, visitation to the mother. Accordingly, “there is no ruling for us to review on
appeal.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998). See
Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993).
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Motion to strike – Issue 5
Mother argues that the trial court erred in denying her motion to strike the Department’s
evidence at the conclusion of the Department’s evidence and at the conclusion of the trial.
On appeal, the Court, in reviewing the ruling, to strike a plaintiff’s evidence “must view
the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to
the plaintiff.” Economopoulos v. Kolaitis, 259 Va. 806, 814, 528 S.E.2d 714, 719 (2000) (citing
West v. Critzer, 238 Va. 356, 357, 383 S.E.2d 726, 727 (1989)). “The standard for reviewing a
plaintiff’s evidence on a motion to strike evaluates whether plaintiff has made a prima facie case
. . . .” Klein v. Klein, 49 Va. App. 478, 481, 642 S.E.2d 313, 315 (2007).
Here, the Department made a prima facie case for termination of mother’s parental rights
under Code § 16.1-283(C)(2). As discussed above, there was sufficient evidence to prove that
mother had not remedied the situation which led to the child being placed in foster care and
remaining in foster care. Furthermore, there was sufficient evidence to prove that termination of
mother’s parental rights was in the best interests of the child. Therefore, the trial court did not
err in denying mother’s motion to strike.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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