Cheyenne Leigh Gillaspy v. Harrisonburg Rockingham Social Services District

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Malveaux and Ortiz
CHEYENNE LEIGH GILLASPY
MEMORANDUM OPINION*
v. Record No. 0320-21-3 PER CURIAM
OCTOBER 5, 2021
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
(Stephen R. Sofinski, on brief), for appellant. Appellant submitting
on brief.
(Kim Van Horn Gutterman, Assistant County Attorney; Lynn
Svonavec, Guardian ad litem for the minor child, on brief), for
appellee. Appellee and Guardian ad litem submitting on brief.
Cheyenne Gillaspy (mother) appeals the circuit court’s order terminating her parental rights.
Mother argues that the circuit court erred in finding that the evidence was sufficient to support a
termination of her parental rights under Code § 16.1-283(C). Specifically, mother maintains that
she remedied the conditions that led to her child being placed in foster care, and in the
alternative, that good cause existed for any perceived failure to do so. 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.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
“On appeal from the termination of parental rights, this Court is required to review the
evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep’t of
Hum. Servs., 63 Va. App. 157, 168 (2014)).
Mother and Brent Smallwood (father) are the biological parents to the child who is the
subject of this appeal. Father is currently serving a life sentence and was incarcerated for the
entirety of these proceedings.2 Mother has a long history of substance abuse.3 At the child’s birth
in March of 2018, mother and the child were referred to a home visiting program providing
family-strengthening services due to mother’s diagnosis of bipolar disorder, amphetamine and
psychostimulant induced psychosis with hallucinations, and posttraumatic stress disorder (PTSD).
On March 5, 2019, Harrisonburg Rockingham Social Services District (HRSSD) received a
report of a physical altercation at mother’s home and that mother had been seen smoking
methamphetamine with the child in the home. Mother reported to law enforcement officers that
Christina Price (child’s maternal grandmother) struck her twice and that maternal grandmother had
a history of harassing and threatening mother. The child also had a “significant burn on his arm
which [m]other reported was from him pulling the cord of the curling iron, causing the curling iron
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
2
Father was sentenced on April 7, 2020 for first-degree murder.
3
Mother’s past drug use includes “meth, cannabinoids, ecstasy, and heroin.”
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to fall on his arm and burn him.” The child tested positive for methamphetamine exposure two days
later. Mother tested negative for methamphetamine but did report that she had pending drug
charges.
A family custody hearing occurred on April 24, 2019, during which the guardian ad litem
expressed concern for the child’s well-being and requested that he be placed in foster care. At the
time of the hearing, mother was unemployed and did not have a stable place to live. The
Harrisonburg/Rockingham Juvenile and Domestic Relations District Court (the JDR court) awarded
custody of the child to HRSSD, finding that it was contrary to the child’s welfare to continue in
mother’s custody and that reasonable efforts were made to prevent removal. No relatives were
identified as being suitable to take the child. The JDR court entered a dispositional order placing
the child in a foster care plan with the goal of returning home.
HRSSD recommended and provided numerous services for mother, including allowing
mother weekly visitations with the child as deemed appropriate by HRSSD, individual/group
counseling services, substance abuse evaluations and treatment, an assigned case worker, and an
assigned parent mentor to assist with mother’s employment, transportation, and housing needs.
HRSSD directed mother to comply with all service recommendations, including random drug
screenings.
Mother made little progress towards the goal of the child returning home. She failed to
attend counseling sessions regularly and did not comply with HRSSD’s substance abuse services.
She also struggled to maintain steady employment and transportation. Mother tested positive for
methamphetamine on September 16, 2019 and October 22, 2019. The JDR court subsequently
entered a foster care review order amending the foster care plan with a goal of relative placement.
Mother’s drug problems continued. On November 8, 2019, she advised the foster care
specialist that she had used drugs two days earlier. Mother then agreed to check into First Step
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Women’s Shelter, a domestic violence shelter, as recommended by her parent mentor. Mother was
evicted from the shelter a couple of weeks later. Mother then moved back into the home of
maternal grandmother, despite recommendations from HRSSD that she not reside with maternal
grandmother due to their toxic relationship. In January 2020, mother tested positive for
amphetamine and cannabis. Mother’s psychiatrist also noted in January of 2020 that mother’s
“psychiatric problems result in high risk of imminent harm to self/others and inability to care for
self.”
Maternal grandmother had been involved over the life of this matter as a possible placement
option and had filed a petition for custody of the child. However, maternal grandmother was found
ineligible initially due to her husband’s extensive criminal history, which included assault and
battery. HRSSD instructed maternal grandmother that in order to be considered a placement option,
her husband could not live in the house or be married to her anymore. Maternal grandmother
advised that she was no longer living with her husband on a consistent basis but that they remained
married. HRSSD also instructed maternal grandmother to attend foster parent classes. Maternal
grandmother attended some, but not all of the classes, and was often argumentative or slept during
the classes she did attend. In addition, maternal grandmother struggled with substance abuse; she
tested positive for amphetamine and methamphetamines in January 2019 and methamphetamines in
February 2020. Maternal grandmother also has a history of driving under the influence in 2011 and
2015.
On January 15, 2020, law enforcement responded to an incident at maternal grandmother’s
residence because of a reported domestic dispute between mother and maternal grandmother.
Mother reported that maternal grandmother “pushed [mother] out the door and locked [her] out” and
that maternal grandmother had threatened to take the child and “get a protective order against
[mother].” Mother was immediately taken to the hospital for a psychiatric hospitalization because
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of suicidal thoughts. While at the hospital, mother tested positive for amphetamine and marijuana.
Mother remained hospitalized for three days.
Mother tested positive for methamphetamine and marijuana metabolite in September of
2020. On October 11, 2020, law enforcement responded to another incident at maternal
grandmother’s residence where mother reportedly “brandished a knife at [maternal grandmother]
and was stabbing the walls in the house.” Emergency dispatch could hear a female screaming “I’m
going to kill you!” in the background. Upon arrival, law enforcement confronted mother in her
vehicle at the end of the driveway. Mother appeared to be under the influence, refused to obey law
enforcement’s requests to show her hands, and “yelled at [the officer] to shoot her while she was
walking towards [him].” Mother was taken into custody and charged with domestic assault,
property damage, public intoxication, and attempted malicious wounding. Mother remained
incarcerated due to these charges for the remainder of these proceedings.
The JDR court entered a subsequent permanency planning order, approving a permanent
goal of adoption, and a termination of parental rights order, finding that termination was in the best
interest of the child. The JDR court also found that maternal grandmother did not meet the statutory
criteria set forth in Code § 16.1-282.1 for relative placement.
Mother appealed to the circuit court the JDR court’s orders approving the goal of adoption
and involuntarily terminating her parental rights pursuant to Code § 16.1-283(C)(2). Maternal
grandmother also appealed the JDR court’s denial of her petition for custody of the child.
On March 9, 2021, the parties appeared before the circuit court. HRSSD presented evidence
that, while the COVID-19 pandemic had hindered mother’s ability to timely participate in the
services offered by HRSSD, “there was never really any stability throughout the life of the case as it
is” and that mother “wasn’t invested” even before the pandemic began. HRSSD emphasized that
the child had been exposed to methamphetamines and drug use and was a witness to violence while
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being in the care of mother and maternal grandmother. Therefore, HRSSD did not support child’s
placement with mother or maternal grandmother. Mother confirmed that she had used
methamphetamine with maternal grandmother when they lived together while the child was in
foster care. Mother testified that “anytime [she] spent around [maternal grandmother] has been very
stressful, very toxic.”
HRSSD found that no other relatives were eligible to be a potential placement for the child.
HRSSD had examined maternal great grandmother as a possible placement but determined that she
was not an option because of various health concerns and her close connection with maternal
grandmother. Maternal grandfather believed it to be in the best interest of the child to stay with his
foster parents.
HRSSD presented evidence that the child had been with his current foster family for over
eight months. According to the foster mother, the child “fits right in” with the foster family and
regularly attends speech therapy. The foster mother testified that the family would like to adopt
child. Mother stated that “I hope and I believe [the child] is” happy with the foster family.
After hearing the evidence and arguments, the circuit court denied maternal grandmother’s
custody petition, found that HRSSD exercised “good effort and sufficient effort to attempt to find an
appropriate relative placement for this child without success,” approved the goal of adoption, and
terminated mother’s parental rights under Code § 16.1-283(C)(2). Mother’s appeal followed.4
ANALYSIS
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Castillo v. Loudoun Cnty. Dept’t of Fam. Servs., 68 Va. App. 547, 558 (2018) (quoting
Maternal grandmother also appealed the circuit court’s ruling; the Court dismissed her
4
appeal. See Price v. Harrisonburg Rockingham Soc. Servs. Dist., No. 0615-21-3.
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Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)). “Where, as here the
court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on
appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty. Dep’t of Soc. Servs.
v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania Cnty. Dep’t of Soc.
Servs., 3 Va. App. 15, 20 (1986)).
Mother challenges the circuit court’s termination of her parental rights and contends that
“she remedied the conditions that led to the children [sic] going into foster care, and if not, that she
had good cause for any perceived failure to do so.” Specifically, mother argues that her efforts to
remedy the conditions were shut down by her incarceration stemming from the charges maternal
grandmother pressed against her. Mother contends that maternal grandmother “sabotaged” her at
every chance she had and that her “punishment for alleged criminal matters should not be enhanced
by terminating her rights to her child.”
HRSSD argues that mother did not preserve her arguments for appeal. However, in her
closing argument to the circuit court, mother argued against the termination of her parental
rights. She further alleged that maternal grandmother had “interfered” with her efforts to remedy
the conditions that required the child’s placement in foster care. “This Court has held that
‘[c]ounsel may meet the mandates of Rule 5A:18 in many ways. For instance, counsel may
make clear the ground for [her] objection in a motion to strike the evidence or in closing
argument.’” Moncrief v. Div. of Child Support Enf’t ex rel. Joyner, 60 Va. App. 721, 729
(2012) (quoting Lee v. Lee, 12 Va. App. 512, 515 (1991)). Furthermore, if “a trial court is aware
of a litigant’s legal position and the litigant did not expressly waive such arguments, the
arguments remain preserved for appeal.’” Canales v. Torres Orellana, 67 Va. App. 759, 771
(2017) (en banc) (quoting Brown v. Commonwealth, 279 Va. 210, 217 (2010)). Accordingly,
we find that mother preserved her arguments for appeal.
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The circuit court terminated mother’s parental rights under Code § 16.1-283(C)(2), which
provides 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.” Yafi, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 271 (2005)).
After hearing the evidence and argument, the circuit court found, by clear and convincing
evidence, that mother, without good cause, was unwilling or unable to remedy the conditions that
led to the child’s placement into foster care, notwithstanding the reasonable and appropriate
efforts of HRSSD, for a period exceeding twelve months from the child’s placement into foster
care. The circuit court noted that the child previously had tested positive for methamphetamine
while under mother’s care and mother had several positive tests following removal, most
recently in September 2020. The circuit court also pointed to the incident when mother was
screaming for a law enforcement officer to shoot her as evidence that mother continued to
struggle with “severe” mental health issues in a “chaotic” environment.
The circuit court found that HRSSD provided mother with adequate services, including
mentoring services, mental health and substance abuse treatment opportunities, counseling, and
mentoring to assist with transportation following the child’s removal. However, despite those
services, which mother does not argue were inadequate, the circuit court found that mother failed
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to show progress, declined inpatient treatment, and failed to show that she had remedied the
conditions leading to the child’s foster care placement.
Mother attempts to argue that she planned to continue to work upon her release from
prison and that, had she been “at liberty, she would have had the opportunity to stabilize her life
further and be a placement for her child . . . .” At the time of the circuit court hearing, the child
had been with his current foster family for over eight months. Mother was incarcerated and not
in a position to care for the child. The circuit court found that the child’s best interests were
being served in the foster care home, where he was “thriving” in a “stable, nurturing”
environment. “It is clearly not in the best interests of a child to spend a lengthy period of time
waiting to find out when, or even if, a parent will be capable of resuming his [or her]
responsibilities.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 322 (2013)
(quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)).
Contrary to mother’s arguments, clear and convincing evidence supported the circuit
court’s rulings. The circuit court did not err in finding that it was in the child’s best interests to
terminate mother’s parental rights and that the evidence was sufficient to support termination
under Code § 16.1-283(C)(2).
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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