Glenn A. Marston et.al. v. Fairfax Dept. Fam. Svcs

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Humphreys
Argued at Alexandria, Virginia
GLENN A. MARSTON AND
JOANNE MARSTON
MEMORANDUM OPINION* BY
v. Record No. 1336-01-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 22, 2002
FAIRFAX COUNTY DEPARTMENT OF
FAMILY SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Judge
Glenn A. Marston, pro se.
(Anne Wren Norloff, on brief), for appellant
Joanne Marston. Appellant Joanne Marson
submitting on brief.
James P. Fisher, Associate Counsel to County
Attorney (David P. Bobzien, County Attorney;
Andrew J. Kersey, Associate Counsel to
County Attorney, on brief), for appellee.
Francis G. McBride, Guardian ad litem for
the children.
Glenn A. Marston (Mr. Marston) and Joanne Marston 1 (Mrs.
Marston) (appellants) appeal the decision of the Circuit Court
of Fairfax County terminating their parental rights to three of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Joanne Marston died while this appeal was pending, which
does not abate the appeal. Code § 8.01-20. However, the issues
she presents are moot and will not be addressed.
their children. For the reasons that follow, we affirm the
trial court's decision.
I.
Background
"Upon appellate review, we must review the facts in the
light most favorable to the party prevailing below." Richardson
v. Richardson, 30 Va. App. 341, 349, 516 S.E.2d 726, 730 (1999).
Joanne and Glenn Marston are the biological parents of Xenia,
born February 9, 1992; Nicholas, born April 12, 1993; and
Nathaneal, born July 28, 1995. On September 28, 1998,
appellants' neighbor, Clyde Collins, called the Fairfax County
Police to report a continuing pattern of child abuse and neglect
by the Marstons. Collins testified that he often heard loud
arguments, screaming, and crashing sounds from the appellants'
home. On at least one occasion, he overheard Mr. Marston state,
"I'm going to knock your fucking head off." He observed the
children outside, unsupervised and inappropriately dressed for
the weather.
Officer Michael Deane responded to Collins' complaint.
Upon entering appellant's home, the odor of feces and urine
caused him to immediately retreat. He also noted that the home
was dirty, cluttered, littered with trash, and infested with
insects. He referred the matter to Child Protective Services
(CPS).
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On September 30, 1998, CPS worker Elizabeth Hernandez
responded to the home but no one was there. She returned on
October 5, 1998, but Mr. Marston permitted her to view only a
portion of the home. The next day, Nathaneal, then age three,
was admitted to Fairfax Hospital with a serious bacterial
("staph") infection causing his skin to decompose upon touch.
Hernandez finally viewed the entire home and took pictures on
October 9, 1998. After a staff meeting, the Fairfax County
Department of Family Services assigned Sally King, a foster care
social worker, to manage the case.
On October 13, 1998, the Department filed petitions
alleging that the children were abused and neglected. Six days
later, King obtained an emergency removal order from the
juvenile and domestic relations district court (J&DR court) and
took the children into custody. The court also ordered that:
(1) the Marstons undergo psychological evaluations and therapy;
(2) the Marstons successfully complete parenting classes; (3)
each of the children have a medical examination; (4) each of the
children have a psychological and developmental evaluation; (5)
the Marstons sign releases to permit monitoring of their
compliance; and (6) the Marstons cooperate with home-based
services. On November 19, 1998, the Marstons agreed to these
recommendations and stipulated that the children were neglected
within the meaning of Code § 16.1-228(1).
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In December 1998, the Department prepared foster care plans
with the goal that the children return to the Marstons in March
1999. The Department provided the services ordered by the J&DR
court, but the Marstons did not cooperate. Despite the
Marstons' unsatisfactory progress, re-unification of the
children with the Marstons continued to be the goal of the July
1999 foster care plans.
Because the Marstons had not achieved the desired goals by
March 1999, as projected, the court continued the matter to
October 29, 1999. On October 29, appellants had still not
complied with the plan. Although the children had been in
foster care beyond the 12-month limit imposed by statute, the
matter was set for another hearing on April 7, 2000.
Notwithstanding this lack of progress, the Department
permitted the children to return to the Marston home on a trial
basis in February 2000. Several Department employees testified
that the Marstons' pattern of neglect continued during this
five-month trial period. The Marstons attributed their
inability to parent to teachers, therapists, and Department
employees. They became angry, refused to accept responsibility
for their behavior and made little progress.
The Department filed a petition seeking termination of
parental rights, and the J&DR court scheduled a termination
hearing for October 2000. The Department and home-based social
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workers changed their focus from counseling to observing the
progress of the Marstons.
On July 28, 2000, CPS received a complaint that Nicholas
had a bruise on his forehead. CPS workers and the police went
to the Marstons' home. The workers observed the bruise, red
marks on his arm and upper thigh, and broken glass behind and on
Nicholas' bed. CPS removed all three children from the home.
At the time of the trial, each of the Marstons' three
children suffered from psychological problems. Xenia, nine
years old at the time, suffered from depression and anxiety, and
required psychotropic medications. She had an attention
deficit, resulting in academic problems. Her teacher testified
that during the period when she had returned to her parents'
home, she came to school in dirty clothes, was very emotional,
and not alert. Nicholas, seven years old at trial, required
special education and psychotropic medication due to emotional
disabilities characterized by kicking, biting and hitting.
Dr. Jennifer Rashap, a licensed clinical psychologist, opined
that Nicholas required a safe, secure, and nurturing home
environment. She testified that these needs were not being met
at the Marston home. Nathaneal, five years old at the time of
trial, received psychological therapy for emotional problems.
After two years of failed efforts to return the children to
the Marstons, the J&DR court terminated their parental rights to
all three children on October 19, 2000. The Marstons appealed
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to the circuit court, which, upon a de novo hearing, entered an
order terminating the Marstons' parental rights pursuant to Code
§ 16.1-283(B). It is from this ruling that the Marstons appeal.
II.
Analysis
A. Threshold Issues
i. Lack of Jurisdiction
Because the Marstons have been unable to locate a petition
seeking termination of their parental rights in the court files,
they contend that none was filed and that the trial court,
therefore, did not have jurisdiction to terminate their rights.
See Code § 16.1-283(A) (providing that a court may terminate the
residual parental rights of parents "if the petition
specifically requests such relief"); Fredericksburg Dept. of
Soc. Servs. v. Brown, 33 Va. App. 313, 322, 533 S.E.2d 12, 16
(2000) ("In the absence of . . . a petition [seeking
termination], the parents' residual parental rights could not be
terminated."). We disagree.
Our standard of review requires that we presume the
judgment of the trial court to be correct, Broom v. Broom, 15
Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and sustain its
finding unless it is plainly wrong or without evidentiary
support. Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363,
365 (1986). The Marstons bear the burden of proving that the
totality of the evidence does not justify the conclusion that a
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petition seeking termination was filed. See Carter v.
Thornhill, 19 Va. App. 501, 509, 453 S.E.2d 295, 300 (1995).
In this case, the circuit court found that the Department
filed a petition seeking termination of the Marstons' parental
rights. The order terminating the Marstons' parental rights
explicitly stated that its trial was pursuant to "the
petition(s) for termination of the parental rights of Joanne
Marston and Glenn Marston . . . ." 2
The trial court's conclusion is supported by the record.
The parties' conduct before the court evidences the existence of
a petition seeking termination in the file. Before the J&DR
court, Mr. Marston filed a motion to quash the "complaint" in
which he specifically referred to the "Petition for the
Termination of Residual Parental Rights." Furthermore, the
circuit court noted, in its letter opinion, "[t]he parties
stipulated at the beginning of the hearing in [circuit court]
that all necessary summonses and notices had been served or
provided." This finding has never been challenged by the
Marstons. Indeed, Mrs. Marston's counsel, before the circuit
court, agreed that "the summons or notice clearly state the
2
Furthermore, the JD&R court terminated the Marstons'
parental rights by order dated October 19, 2000, implicitly
finding subject matter jurisdiction. See Broom, 15 Va. App. at
504, 425 S.E.2d at 94 (finding that appellate court must presume
the judgment of the trial court to be correct).
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consequences of the termination of residual parental rights."
In short, the record contains credible evidence that the
Department filed a petition seeking termination of the Marstons'
parental rights, and the absence of a petition in the file does
not negate that conclusion. See Wagner Enterprises v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (holding that
where credible evidence supports the findings of the trier of
fact, evidence to the contrary is of no consequence).
Accordingly, we will not disturb the circuit court's finding
that the case was brought by a petition for termination of
parental rights.
ii. Violation of Code § 16.1-283(C)
Appellants contend that the case should be dismissed
because the Department was involved in this case in excess of
twelve months in violation of Code § 16.1-283(C)(2). 3 However,
our consideration of this contention is barred because
appellants failed to make this argument to the trial court.
Rule 5A:18.
3
Code § 16.1-283(C)(2) provides, inter alia, that parental
rights may be terminated if:
The parent or parents . . . have been
unwilling or unable within a reasonable
period of time not to exceed twelve months
from the date the child was placed in foster
care to remedy substantially the conditions
[of neglect] . . . .
(Emphasis added).
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B. Sufficiency of the Evidence to Terminate Parental Rights
The trial court terminated appellants' parental rights
pursuant to Code § 16.1-283(B). The Marstons contend that the
Department did not prove by clear and convincing evidence that
"it is not reasonably likely that the conditions which [sic]
resulted in such neglect can be substantially corrected or
eliminated to allow the child's safe return to his parents
within a reasonable period of time," as required for
termination. Code § 16.1-283(B)(2); see Lowe v. Dept. of Public
Welfare of Richmond, 231 Va. 277, 280-81, 343 S.E.2d 70, 72
(1986). 4 Specifically, they challenge the trial court's findings
that: (1) the evidence constituted a prima facie case of the
conditions of Code § 16.1-283(B)(2), pursuant to subsections
(B)(2)(a) and (c); (2) the Department provided the required
statutory services to address the neglect; and (3) the Marstons
did not substantially eliminate and correct the conditions that
led to removal of the children. Upon consideration of the
evidence in the record, we find each argument to be without
merit.
4
Appellants do not challenge the trial court's findings,
required for termination pursuant to Code § 16.1-283(B), that
termination was in the best interest of their children or that
the children had been neglected.
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i. Prima Facie Evidence: Code § 16.1-283(B)(2)(a) and (c)
Code § 16.1-283(B)(2) provides, inter alia, that proof that
the parents suffer from a mental or emotional illnesses with
such severity that there is no reasonable expectation that
either of them will be able to care for their children, see Code
§ 16.1-283(B)(2)(a), or that the parents, without good cause,
have not responded to or followed through with reasonable
rehabilitative efforts, see Code § 16.1-283(B)(2)(b),
constitutes prima facie evidence of the conditions of Code
§ 16.1-283(B)(2). The trial court found that the evidence
presented by the Department satisfied each of these subsections,
that the Marstons did not rebut this prima facie case, and that,
therefore, the evidentiary requirements of Code § 16.1-283(B)(2)
had been met. On appeal, we will not disturb these findings
unless they are plainly wrong or without evidentiary support.
See Roanoke City Dept. of Soc. Servs. v. Heide, 35 Va. App. 328,
336, 544 S.E.2d 890, 894 (2001).
The evidence that both parents suffer from severe mental
illnesses that prevent them from taking care of their children
is undisputed. Code § 16.1-283(B)(2)(a). Mrs. Marston suffers
from chronic depression, a mixed personality disorder, and an
unspecified personality disorder. Claire Laurenza, a
psychiatric nurse, testified that Mrs. Marston exhibited
dependency, passive/aggressive traits, avoidance, and traits of
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borderline personality disorder, such as an inability to return
to an emotional baseline after confrontation of problems with
anger. Laurenza opined that Mrs. Marston's prognosis was not
good.
Mr. Marston suffers from an unspecified personality
disorder characterized by aggressive/passive traits, paranoia,
and narcissism. Dr. Jennifer Rashap, a licensed clinical
psychologist, testified that Mr. Marston distrusts people,
procrastinates, avoids situations, irrationally believes others
treat him malevolently and that he is superior to, and not
subject to the same rules as, others. She testified that those
suffering from a similar disorder are often unable to make
progress in treatment. Left untreated, her "expectation is that
the condition will remain present and chronic." Mary Chilcutt,
a licensed therapist, opined that Mr. Marston's prognosis and
the possibility of his becoming a better parent were poor.
The evidence also supports the trial court's finding that
the Marstons failed to respond to and follow through with
appropriate, available and reasonable rehabilitative efforts.
Code § 16.1-283(B)(2)(c). Mr. Marston slept during the parent
nurturing classes, and Mrs. Marston was disinterested and
non-participatory. Mr. Marston's therapist testified that he
benefited little from therapy because he tended to blame others
and refused to accept responsibility. Mrs. Marston's
psychiatric nurse testified that she failed to cooperate during
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treatment, often cancelled sessions, and stated that the only
reason she attended the sessions was because she was court
ordered to do so. In April 2000, Mrs. Marston refused further
psychological services.
Accordingly, the evidence met the presumptions of both Code
§ 16.1-283(B)(2)(a) and (c). Moreover, the contrary evidence
presented by the Marstons does not compel a different result.
See Wagner Enterprises, 12 Va. App. at 894, 407 S.E.2d at 35
(holding that contrary evidence in the record is of no
consequence if credible evidence supports the findings of the
trier of fact). The trial court, therefore, properly concluded
that the Marstons were not reasonably likely to remedy the
conditions of neglect so as to allow the children to return
within a reasonable period of time. Code § 16.1-283(B).
ii. Statutory Services to Address Neglect
We also find the Marstons' claim that the Department failed
to provide the statutorily required services to address the
neglect of the children meritless. See Code § 16.1-283(B)(2)
(providing, inter alia, that "the court shall take into
consideration the efforts made to rehabilitate the parent or
parents by any public or private social, medical, mental health
or other rehabilitative agencies prior to the child's initial
placement in foster care"). The evidence clearly demonstrates
that the Department provided (1) developmental assessments of
the children; (2) a "Parent Nurturing Program" between July and
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October 1999; (3) home-based counseling on parenting,
discipline, nutrition and home upkeep; (4) psychological therapy
for the Marstons and the three children; (5) transportation to
and from therapy and the children's residence; (6) temporary
housing and assistance with obtaining subsidized housing; and
(7) medical services for the children. Accordingly, we will not
disturb the trial court's finding that the Department provided
the required services.
iii. Elimination of Conditions that Led to Neglect
The Marstons contend that they fully remedied the
conditions that led to the initial removal of the children and
that the trial court, therefore, erred in finding that "it is
not reasonably likely that the conditions which resulted in
. . . neglect . . . can be substantially corrected or
eliminated . . . ." Code § 16.1-283(B)(2). 5 Specifically,
appellants maintain that they had vastly improved the condition
of their home, and fed, washed, dressed, and otherwise cared for
their children.
5
Mrs. Marston also argues that the trial court improperly
found that her obesity rendered her physically unable to care
for her children. At trial, the court stated that "Cheryl
Weitz, a licensed social worker . . . noted . . . that Mrs.
Marston's obesity hampered her ability to parent the children."
However, in its letter opinion, it did not find that Mrs.
Marston was physically unable to care for her children or rule
on Mrs. Marston's objection. Therefore, we will not consider
this argument on appeal. See Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 489 (1998) (holding that where the
trial court does not rule on an appellant's objection, "there is
no ruling for us to review on appeal").
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The evidence in the record, however, is directly contrary.
By July 2000, the appellants had not eliminated or corrected the
conditions that led to the initial determination that they
neglected their children, a condition to which they stipulated
in October 1998. During the five-month trial period where the
children resided with the Marstons, Department employees
observed overflowing trash, dirty dishes piled in the sink,
children eating food off the floor, food on the floor and sofa,
a cluttered kitchen table, filthy bathrooms, and inappropriate
yelling at, and supervision of, the children. Furthermore, two
schoolteachers testified that the children came to school dirty,
hungry and tired. The evidence, therefore, provided
ample basis from which the trial court could conclude that the
Marstons had not eliminated or corrected the circumstances
resulting in the neglect of the children. 6
6
The Marstons argue that because they stipulated only to
their children's "neglect" and the J&DR court based its removal
order on such "neglect," the trial court's consideration of
"abuse" in its determination of whether the conditions leading
to "neglect" were remedied was error. See Code
§ 16.1-283(B)(2). We disagree that the court premised its
finding on evidence of abuse. In its fifteen page letter
opinion, the court made one passing reference to the Marstons'
"verbal abuse" of their children and one other reference to the
children's "unhealthy, unsafe, and abusive circumstances."
However, a review of the comprehensive and thoughtful opinion by
the court makes clear that the trial judge premised his finding
that the conditions leading to neglect could not be
substantially remedied within a reasonable period of time solely
on the conditions underlying the parties' stipulation to, and
the trial court's finding of, neglect.
The J&DR court based its initial determination of neglect
on a range of conditions, including, but not limited to, the
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C. Additional Claims by Mr. Marston
In addition to incorporating by reference Mrs. Marston's
allegations, Mr. Marston alleges the trial court erred: (1) by
characterizing the initial placement of his children in foster
care as "a voluntary relinquishment of parental custody"; and
(2) by refusing to allow his oldest child, Xenia, to testify. 7
We disagree.
We fail to see the relevance of his first argument.
Whether the children's placement in foster care is labeled a
"court commitment" or a "voluntary relinquishment," the
placement, to which appellants stipulated, satisfies the first
statutory requirement for terminating parental rights. See Code
§ 16.1-283(B) (providing that parental rights may be terminated
where, inter alia, the children were "placed in foster care as a
result of (i) court commitment . . . or (iii) other voluntary
relinquishment by the parent or parents . . .").
unsanitary condition of the Marston home, the Marstons'
inappropriate discipline of the children, and their
psychological progress. Because the evidence at trial proved
that these conditions had not been remedied, the Marstons' focus
on terminology used by the court in passing does not prove that
the court erred in concluding that the conditions leading to
neglect could not be remedied in accordance with Code
§ 16.1-283(B)(2).
7
Mr. Marston presented several questions on appeal that we
do not consider because he failed to address them in his brief.
See Bennett v. Commonwealth, 35 Va. App. 442, 452, 546 S.E.2d
209, 213 (2001). Nor do we consider his argument on appeal that
the Department failed to consult with him regarding the foster
care plan, which he did not raise before the circuit court. See
Rule 5A:18.
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We also find his second argument to be without merit. Code
§ 16.1-283(G) provides that, if a child fourteen years of age or
older or "otherwise of an age of discretion as determined by the
court," objects to the termination of parental rights, they will
not be terminated. At the time of trial, Xenia was nine years
old. Therefore, the trial court had discretion to determine
whether her objection would prevent the termination of her
parents' parental rights. Deahl v. Winchester Dept. of Soc.
Servs., 224 Va. 664, 299 S.E.2d 863 (1983). Mr. Marston offered
no evidence that Xenia was otherwise at "an age of discretion."
Xenia's therapist, however, testified that she did not believe
Xenia had the maturity and discretion to make such a choice.
This testimony was sufficient for the trial judge to conclude
that Xenia was not of the age of discretion and that her
testimony could not affect the court's decision to terminate the
Marstons' parental rights. Accordingly, the trial court did not
abuse its discretion by excluding this irrelevant evidence. See
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1998) (holding that admission of evidence is within the broad
discretion of the trial court).
Affirmed.
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