Fathima Wilson v. Norfolk Department of Human Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Senior Judge Annunziata
UNPUBLISHED
FATHIMA WILSON
MEMORANDUM OPINION*
v. Record No. 0475-20-1 PER CURIAM
NOVEMBER 10, 2020
NORFOLK DEPARTMENT
OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
(B. Cullen Gibson, on brief), for appellant.
(Erikka M. Massie; Bernard Pishko; Romy L. Radin, Guardian ad
litem for the minor child; Office of the City Attorney; Radin Law,
PLC, on brief), for appellee.
Fathima Wilson (mother) appeals the orders terminating her parental rights and approving
the foster care goal of adoption. Mother argues that the circuit court erred by terminating her
parental rights under Code § 16.1-283(C)(2) because termination was not in the child’s best interests
and mother had substantially remedied the conditions requiring the child’s continued placement in
foster care. 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 circuit court. See Rule
5A:27.
*
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 is the biological parent to the child who is the subject of this appeal.2 The child
first entered foster care on April 30, 2015, after mother had been arrested for leaving the then
six-year-old child unsupervised.3 The Norfolk Department of Human Services (the Department)
offered services to mother, but she did not make sufficient progress for the child to be returned to
her care. On July 13, 2016, the child was placed with his paternal cousin.
On October 20, 2017, the paternal cousin brought the child, who was almost nine years
old, to the Kempsville Center for Behavioral Health, where witnesses saw the paternal cousin
strike, choke, and curse at the child. The Department worked with the paternal cousin and the
child, who had been diagnosed with attention deficit disorder, disruptive mood disorder, and
oppositional defiant disorder. On January 10, 2018, however, the Department removed the child
from the paternal cousin’s home. Mother was unable to care for the child because she did not
have stable housing.
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 voluntarily terminated his parental rights to the child.
3
Mother testified that she had arranged for a babysitter to watch the child, but the
babysitter did not do so.
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The Norfolk Juvenile and Domestic Relations District Court (the JDR court) entered an
emergency removal order and a preliminary removal order. The JDR court subsequently
adjudicated that the child was abused or neglected and entered a dispositional order.
The Department discovered that the child was not taking his medications and his
individualized education program (IEP) at school had been canceled; therefore, the Department
referred him for a psychological evaluation, medication management, and individual therapy.
The Department was able to “put his IEP back in place.” The Department determined that the
child required a therapeutic foster home due to his special needs and behavior.
Mother’s situation had not improved since the child previously entered foster care, so the
Department provided similar services and requested updated information. The Department
required mother to obtain and maintain stable housing and employment. The Department
referred mother for a psychological evaluation and parental capacity assessment, parenting
classes, medication management, and substance abuse treatment. The Department also arranged
for a reunification worker to assist mother as needed.
Mother complied with some of the requirements. Mother was “regularly employed,”
although she changed jobs several times. In addition, she completed the psychological
evaluation and parental capacity assessment. Mother had been diagnosed with bipolar I disorder
and schizoaffective disorder, bipolar type (ruled out); she had a history of starting her medication
but not continuing to take them in the maintenance phase. Mother also participated in Second
Chances Relapse Prevention Group for substance abuse treatment; however, she admitted to the
social worker three or four months before the circuit court hearing that she continued to drink
wine on the weekends even though she knew that she should not do so because of her
psychotropic medications.
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The Department also required mother to obtain and maintain stable housing, which
consistently was an issue while the child was in foster care. Mother had moved and was evicted
several times. Mother had been homeless and had lived in shelters, with friends, and transitional
housing. At the time of the circuit court hearing, she was living in transitional housing.
Moreover, the Department discovered that mother had married a registered sex offender.
The Department explained to her that if she was married to a registered sex offender, the child
could not live with her. In February 2019, she reluctantly divorced him.
The Department offered mother supervised visitation with the child. The Department
acknowledged that mother had a “very positive relationship” with the child and that they had a
“close bond.” The child, however, could be “manipulative,” and mother could “[s]ometimes”
redirect him appropriately and other times needed assistance.
The Department continued to work with mother even after the child had been in foster
care for twelve months because it recognized that she was trying. Mother, however, was too
inconsistent and had not made progress, so in September 2019, the Department changed the
foster care goal to adoption. On October 4, 2019, the JDR court approved the foster care goal of
adoption. On January 10, 2020, the JDR court terminated mother’s parental rights. Mother
appealed the JDR court’s rulings. Although it did not normally do so, the Department reinstated
mother’s services after the JDR court terminated her parental rights because the social worker
believed that mother still needed them.
On February 26, 2020, the parties appeared before the circuit court. The Department
questioned mother’s ability to care for the child because she did not have stable housing and
employment. Mother had “been in and out of shelters” and could not hold a steady job. Mother
was cooperative with the Department but inconsistent with services, including her medication
and individual therapy. The social worker testified that mother would “take two steps
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forward . . . [and] four backwards.” The social worker explained that despite all the services,
mother “still need[ed] to deal with her mental health, her substance abuse, housing, [and]
employment.”
Alisha Taylor, a reunification worker with the Bair Foundation, had worked with mother
since May 2019. Taylor testified that mother was cooperative but continually struggled with
obtaining stable housing as she moved between emergency shelters, transitional housing, and
living with friends. Taylor talked with mother about budgeting and saving money for a security
deposit, but mother had “setbacks, lost jobs, . . . [and] some issues with health.” Taylor testified
that mother’s inability to secure housing was not just because of financial problems, but also
because of “mental health issues.”
The Department presented evidence that the child needed structure and “substantial”
supervision. The child’s foster mother testified that the child had a “very busy” and “very tight”
schedule. He attended counseling once a week, and he had a tutor to help him with schoolwork.
The foster mother explained that the child was doing better in school academically and
behaviorally; however, he could “absolutely be a handful outside of school” because he would
wander off and take things. The foster mother testified that the child needed “full-time care”
because he could not be unsupervised even though he was eleven years old.
At the conclusion of the Department’s evidence, mother moved to strike, which the
circuit court denied. Mother testified about her employment history and explained that she had
started her most recent job two weeks before the circuit court hearing. She had worked at one
job from July 2018 until April 2019, and then had obtained another job where she worked until
January 2020. Mother explained that she had some reactions to her medicine, which caused her
to be “sleepy” at work, and she was late for work occasionally due to transportation issues.
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Mother testified that she was saving her money and expected to be able to obtain housing
very soon. She also hoped to have assistance with the child from “different agencies” or
“different associations.” Mother anticipated having someone stay with the child in the afternoon
and coordinate his schedule; however, she admitted that she was “new to this” and unsure of
exactly what she needed. Mother recognized that she may need to change her shift at work if she
had custody of the child. She currently worked the midnight shift at work, but there was an open
position on the daytime shift that she could apply for after she completed the necessary training.
Mother testified that she took her prescribed medication and participated in individual
therapy and group therapy.4 She also stated that she completed the parenting classes. Mother
presented her certification of completion with the Second Chances Relapse Prevention Group
program and denied drinking wine except during holidays. She claimed to have been “clean” of
narcotics for more than twelve years.
When asked about her ex-husband, mother testified that they married in 2012 but did not
live together. After they married, she discovered that he was a sex offender. She did not want to
divorce him but did so because the Department told her that the child could not live with her if
she was still married to a sex offender.
Mother described her relationship with the child as very close. She acknowledged that
the child “might have his moments,” and she had had “to correct him.” She also admitted that at
times the child did not listen to her, and she had to get assistance from the reunification worker.
Mother asked the circuit court for “another chance” until she could secure stable housing, which
she expected to obtain quite soon.
4
Mother admitted that her health insurance had lapsed between 2016 and 2018, and she
required the Department’s assistance to obtain new medication.
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After hearing all the evidence and arguments, 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 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 Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)
(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)).
Mother argues that the circuit court erred in terminating her parental rights under 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.” Yafi, 69 Va. App. at 52 (quoting Toms v. Hanover Dep’t of
Soc. Servs., 46 Va. App. 257, 271 (2005)).
Mother contends that she substantially remedied the conditions that led to the child’s
continued foster care placement. Mother emphasizes that she had a job, completed the parenting
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classes and the Second Chances program, took her prescribed medication, and attended
individual and group therapy. Mother admits that housing remained an issue but asserts that
termination was not in the child’s best interests because of their close bond.
The circuit court acknowledged mother’s love for the child; however, it also found that
mother had not been able to obtain and maintain stable housing. The circuit court further found
that mother had “made progress, that she ha[d] advanced on certain levels” but doubted that she
would have resolved the remaining, outstanding issues by the time she had stated. The circuit
court noted that mother had been employed in her new job for only two weeks at the time of the
hearing and that other barriers, such as transportation, remained. In addition, after hearing the
testimony about mother’s ex-husband being a sex offender and about how mother only
“grudgingly” divorced him, the circuit court questioned “what kind of judgment . . . [she] used
and will use or would use in the future insofar as [the child] is concerned.” The circuit court
concluded that despite the numerous services offered by the Department, mother was unable, not
unwilling, to remedy substantially the conditions that led to the child’s continued foster care
placement.
The child had been in and out of foster care since 2015, with the most recent removal in
January 2018. He had behavioral and mental health concerns that required constant supervision
and structure. The evidence proved that mother was not ready, or able, to meet the child’s needs.
“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)). Considering the totality of the
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evidence, we cannot say that the circuit court erred in terminating mother’s parental rights under
Code § 16.1-283(C)(2) and approving the foster care goal of adoption.5
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
5
With respect to mother’s appeal of the order approving the foster care goal of adoption,
“[o]ur decision to affirm the termination order necessarily subsumes this aspect of [her] appeal
because a preponderance-of-the-evidence standard governs judicial modifications of foster care
plans.” Toms, 46 Va. App. at 265 n.3.
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