Hayley Callaghan v. City of Virginia Beach Department of Human Services

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Friedman
UNPUBLISHED
HAYLEY CALLAGHAN
MEMORANDUM OPINION*
v. Record No. 0372-22-1 PER CURIAM
DECEMBER 29, 2022
CITY OF VIRGINIA BEACH
DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kevin M. Duffan, Judge
(Constance J. Vandervelde; Vandervelde PLC, on brief), for
appellant. Appellant submitting on brief.
(Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City
Attorney; Brad C. Hudgins, Associate City Attorney; John C. Peeler,
Guardian ad litem for the minor child; Robin L. Tolerton, P.C., on
brief), for appellee. Appellee and Guardian ad litem submitting on
brief.
Hayley Callaghan (mother) appeals the circuit court’s orders terminating her parental rights
and approving the foster care goal of adoption for her child, J.S. Mother argues that the circuit court
erred in terminating her parental rights because the evidence at trial was insufficient to find that
removal of J.S. was necessary at the onset, or alternatively, if the evidence was sufficient, the circuit
court erred in terminating her parental rights because she substantially remedied the conditions that
led to J.S.’s placement in foster care. Mother also argues that the circuit court erred in terminating
her parental rights because the evidence established that she substantially complied during the
Supreme Court of Virginia’s ongoing orders declaring a judicial emergency. Upon reviewing the
record and briefs of the parties, we affirm the judgment of the circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
On appeal, “we view the evidence in the light most favorable to the prevailing party, in
this case, the Department, and grant to it all reasonable inferences fairly deducible from the
evidence.” King v. King George Dep’t of Soc. Servs., 69 Va. App. 206, 210 (2018) (quoting
Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 386 (2012)).
In July 2019, the City of Virginia Beach Department of Human Services (the Department)
became involved with mother and J.S. after J.S. tested positive for exposure to amphetamines at
birth; he was also diagnosed with Down’s Syndrome. Mother was not tested for substances at that
time because she had received an epidural. J.S. was transferred to a newborn intensive care facility
because he had breathing problems and needed urgent cardiac evaluation. Medical records
indicated that J.S.’s physicians were concerned about fetal exposure to substances in utero. J.S.
initially required high flow oxygen but eventually recovered and was able to breathe on his own.
After his discharge from the hospital and because there were no family placement options, J.S. was
placed in foster care.
Mother reported that she took “a piece” of an Adderall pill the day she went into labor
because she felt tired. Mother did not have a prescription for this drug. Mother reported that she
quit smoking during her pregnancy and was not compliant with taking a prenatal vitamin or iron
supplement. Mother disclosed to the Department that she had prior convictions for drug possession
with the intent to distribute and had taken substance abuse courses while incarcerated. Mother’s
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).
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medical records indicated that she had two other children, but she did not have custody of either
child.
In the Department’s initial foster care plan, the goal was to return J.S. to mother, with a
concurrent goal of relative placement. For J.S. to be returned to mother’s care, the Department
recommended that she undergo a parental capacity evaluation, intensive substance abuse
counseling, and drug screening; the Department also required mother to participate in visitation with
J.S. After the parental capacity evaluation, it was recommended that mother participate in
outpatient therapy and substance abuse treatment, demonstrate six months of sobriety and get a
sponsor from Narcotics Anonymous, take parent education classes, engage in visitation with J.S.,
and maintain or obtain stable housing and appropriate financial stability. In addition to the
parenting course required by the Department, mother also did an online parenting course on her
own.
Mother did not have stable housing. Initially, mother lived in a boarding house with several
roommates. Mother later moved in with a friend in Chesapeake. Mother provided proof of her
primary employment and reported working a second job as a home health aide. Mother also
participated in supervised visitation with J.S. Once the COVID-19 pandemic began, those visits
occurred over video chat, not in person.
While J.S. was in foster care, mother continued to test positive for methamphetamines and
amphetamines from August 2019 through March 2021.2 Mother enrolled in substance abuse
treatment and was cooperative in the services, but repeatedly relapsed, testing positive for
methamphetamines and amphetamines on four urine drug screens and three hair follicle tests. On
October 16, 2020, the Department petitioned to terminate mother’s parental rights.
On mother’s August 2019 hair follicle test, she only tested positive for
2
methamphetamines; she was negative for amphetamines at that time.
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Because of mother’s positive drug screens, the Department moved to change the foster care
goal to adoption. Despite mother engaging in services and continuing to communicate with the
Department, J.S. had remained in foster care since his birth, approximately two years earlier. On
May 3, 2021, the Virginia Beach Juvenile and Domestic Relations District Court (the JDR court)
terminated mother’s parental rights and approved the foster care goal of adoption. Mother appealed
the JDR court’s rulings to the circuit court.
On November 16, 2021, the parties appeared before the circuit court. After hearing the
evidence and argument, the circuit court terminated mother’s parental rights under Code
§ 16.1-283(C)(2) and approved the foster care goal of adoption. This appeal follows.
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. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)
(alteration in original) (quoting 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)).
I. J.S.’s Removal
Mother first argues that the circuit court erred in approving the foster care goal of adoption
and terminating her parental rights because the evidence was insufficient for a finding that removal
of J.S. was necessary “at the onset” of the case. Mother, however, did not appeal the JDR court’s
dispositional order, which was a final order at the time of the circuit court hearing. See Rule 1:1(a).
“[T]he General Assembly has determined that a ‘dispositional order’ entered by a J & DR court in
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an abuse and neglect case constitutes a ‘final order from which an appeal may be taken.’” Blevins v.
Prince William Cnty. Dep’t of Soc. Servs., 61 Va. App. 94, 99 (2012) (quoting Code
§ 16.1-278.2(D)); see also Code § 16.1-296(A) (“[O]rders entered pursuant to § 16.1-278.2 are final
orders from which an appeal may be taken.”). As mother did not appeal this decision, we will not
consider this argument.
II. Termination of Parental Rights
Mother next argues that the trial court erred in terminating her parental rights because she
substantially remedied the conditions that led to J.S.’s continuation in foster care. Mother points out
that although she failed in maintaining sobriety, she substantially remedied the other requirements.
Mother asserts that her parental rights were terminated because she did not fully remedy the
conditions leading to J.S.’s placement in foster care.
Under Code § 16.1-283(C)(2), a court is authorized to terminate parental rights “if the
court finds, based upon clear and convincing evidence, that it is in the best interests of the child and
that:”
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.
Accordingly, to grant the Department’s petition to terminate parental rights under Code
§ 16.1-283(C)(2), the court was required to find by clear and convincing evidence that
(1) “termination was in the best interests of [J.S.]”; (2) the “Department offered ‘reasonable and
appropriate’ services to [mother] to help [her] substantially remedy the conditions which led to
or required continuation of [J.S.’s] ‘foster care placement’”; and (3) “despite those services,
[mother] failed, ‘without good cause,’ to [timely] remedy those conditions.” Harrison v.
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Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 161 (2004). Indeed, “[s]ubsection C
termination decisions hinge not so much on the magnitude of the problem that created the
original danger to the child, but on the demonstrated failure of the parent to make reasonable
changes.” Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539, 552 (2018) (quoting Toms v.
Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271 (2005)). “Proof that the parent . . . , without
good cause, [has] 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 . . . shall
constitute prima facie evidence of this condition.” Code § 16.1-283(C)(2).
After mother’s parental capacity evaluation, the Department required her to be drug-free for
six months. Throughout the Department’s involvement, mother repeatedly relapsed, regularly
testing positive for amphetamines and methamphetamines during her substance abuse treatment.
While the Court acknowledges mother’s argument that she was compliant with every other
service the Department required her to undergo, the record supports the circuit court’s ruling that
she did not substantially remedy the conditions that led to J.S.’s placement in foster care. J.S. was
removed because of his exposure to amphetamines at birth and during the almost three years he was
in foster care, mother continued to test positive for the same substances. Indeed, mother’s inability
to make substantial progress toward remaining sober for any period throughout the Department’s
involvement “constitute[s] prima facie evidence of [the] condition” that led to J.S.’s continuation in
foster care. Id.
Additionally, although mother argues that the circuit court should have extended the
deadlines imposed because the COVID-19 pandemic caused ongoing closures and struggles, her
argument is without merit. Mother had over two years of participation in services to specifically
address her substance abuse. No evidence in the record indicates that mother was unable to get
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substance abuse services because of the COVID-19 pandemic closures. Indeed, the circuit court
found that the Department had made reasonable efforts to achieve reunification with mother.
At the time of the hearing, J.S. had been in foster care for his entire life, over two years.
During that time, mother repeatedly tested positive for amphetamines and methamphetamines and
could not maintain sobriety for the period that the Department requested. “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) (alteration in original) (quoting Kaywood v. Halifax
Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)).3 Considering the totality of the
circumstances, the circuit court did not err in terminating mother’s parental rights under Code
§ 16.1-283(C)(2).
CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
3
Again, the Department’s initial goal was to return J.S. to mother, with a concurrent goal
of relative placement. These goals could not, however, be attained and the child is now well
over three years old.
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