Charlottesville Divorce Lawyer Rob Hagy

Lack of Engagement, Lack of Follow Through and More and More Drugs, lead to Termination of Parental Rights.

Out of Chesterfield County comes this Appeal of a Termination of Parental Rights case. 

In Cannon v. Chesterfield-Colonial Heights Department of Social Services, father appeals the Termination of Rights ruling from the Circuit Court of Chesterfield County because his motion for continuance (due to a change in his attorney three months prior) on the last day of trial was denied. Of mention, father had previously appealed the JDR termination ruling to Circuit Court. 

“The decision of whether to grant a continuance is committed to the discretion of the trial court. We will reverse ‘a trial court’s ruling on a motion for a continuance . . . only upon a showing of abuse of discretion and resulting prejudice to the movant.’” Shah v. Shah, 70 Va. App. 588, 593 (2019) (alteration in original) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)).

"Father contends that the circuit court abused its discretion by denying his motion for a continuance. We disagree".

The 2 minor children, both born into addiction, now have the opportunity to live healthy and productive lives without the interference of drugs. Again, the DSS does the hard but necessary thing and takes these very young children out of a no-win situation. A 15-month-old experiences withdrawal for 4 months! If ever you have seen a drug addicted baby in the NICU, it is a sight you do not forget. 

"When S.C. first entered foster care, she was fourteen months old and weighed only fifteen pounds. While in foster care, S.C. steadily gained weight, reaching 25.8 pounds by the time of the circuit court hearing. S.C. also completed feeding and speech therapy and was “a very active and busy little girl” according to her foster mother. D.C. experienced withdrawal symptoms for four months after being born substance exposed, however during the circuit court hearing, both children were described as “developmentally on target.”

While the appeal was denied based on appropriate legal merits, what was not denied was a chance at life for the 2 minor children who did not have the ability to detox or thrive on their own. This is another case where the best interests of the children prevail. 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

 

Proving Harm to a Child Must Be More Substantial than an Assumption of Harm!

A party petitioning the court without evidence other than their own strong emotions does not mean they are entitled to the decision they believe is right. In this case, the circuit court's decision stood because the parties were unable to prove any harm to the involved child. 

In this January 24, 2023, published opinion regarding the case of Regginald Moore and Valerie Moore v. Dominique Joe, the Norfolk Juvenile and Domestic Relations District Court returned the child to the custody of her biological mother, Ms. Joe. The J&DR court heard and denied the custody and visitation actions brought by the child's former foster care custodians, Regginald and Valerie Moore.

Unsatisfied with the child's return, the Moore's appealed. On motion to strike, the Circuit Court for the City of Norfolk found the Moore's failed to present evidence of actual harm to the minor child. The court dismissed the cases. The Moore's then appealed the dismissal of their petitions for custody and visitation of their former foster daughter as they assumed the court erred by excluding Dr. Tirrell’s de bene esse deposition. However, the court ruled the doctor's deposition did not show any harm to the child and would have not changed the outcome. So, the return of the child to the biological parents was affirmed. 

All too often, parties are convinced they are right merely because that is how they feel. Rather than file petitions based on emotion it is far better to consult with a family law attorney who can properly advise parties of the law. If you are in the Charlottesville area and have questions, please see us for a consultation. 

 

Virginia Beach DSS Prevails and Circuit Court's Decision to Terminate Parental Rights is Upheld.

For two years after the birth of her son, Appellant (Mother) tested positive for amphetamines. The son tested positive for amphetamines at birth, as well as being diagnosed with Down's Syndrome. When the Virginia Beach DSS intervened, removed the child and proceeded with a foster care plan for a goal of adoption, Appellant had already lost custody of her two other children. At the hearing, the Circuit Court terminated mother's parental rights. 

On Appeal, mother claimed that she had remedied her living conditions and her situation, yet she continued to test positive for amphetamines. Not wanting to cause further delay to this child or "wait" longer for Appellant to prove that she had changed her life, the Court of Appeals affirmed the decision of the Virginia Beach Circuit Court. 

 

The best interests of this child are for loving adoptive parents with a circle of support who can properly give him care!

If need assistance with child custody, visitation or divorce, or if you have questions about appeals, please feel free to call us at (434)293-4562 or email us at [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Richmond City Circuit Court Dismissal of Termination of Parental Rights Case is Reversed in favor of Richmond DSS!

In this termination of parental rights case re the City of Richmond Department of Social Services v. J. Wells and D. Roane (biological parents), the Circuit Court dismissed the termination petition against Ms. Wells and Mr. Roane due to the DSS not providing clear and convincing proof that the biological parents or the caretakers had actually harmed the young child. Despite rib fractures, unusual inside back of the throat injuries and wrist injuries all at under 3 months old, the father canceling follow-up hospital appointments, convincing testimonies from therapists and professionals concerned with the behavioral patterns of the parents and the lack of completion of most DSS suggested services - even after one year - the Circuit Court ruled that the child was better off with the biological parents. 

On appeal from the Richmond Department of Social Services the Court of Appeals reviews excerpts from the Circuit Court hearing and includes as part of their decision:   

"At the end of the case, the court ruled that the Department failed to carry its burden under either Code § 16.1-283(B) or (C)(2). The court determined that the Department failed to prove that mother and father were the individuals responsible for causing J.R.’s injuries, which the court considered to be a prerequisite for termination. The court cited due process concerns and stated, “In this [c]ourt, it matters who did it and when.” It found that the Department was required to present “more substantial evidence implicating each one of the persons.” The court also ruled that the Department did not prove that termination was in J.R.’s best interests. The court referred to J.R. calling mother “mom,” found that there was evidence J.R. and his biological family had a “connection,” and pointed out that the grandmothers had raised “about ten [other] children” without claims of abuse. The court further found that the child’s injuries did - 10 - not amount to a “death-like situation” and commented that “you’ve got a bruise and you’ve got fractures. And fractures are easy to occur. There are people walking down the street and get fractures or trip up and get fractures. So there’s no explanation of that fracture process.” The court also noted that father took J.R. to the skeletal survey and queried, “[W]ould somebody beat up a kid and then take him to the hospital?” Five months later, on September 20, 2021, the court entered the final order denying the Department’s petition to terminate mother and father’s parental rights and remanding the case to the JDR court.

Continuing its review of the Circuit Court's hearing and dismissal of the termination, the Court of Appeals boldly disagrees on every issue with the City of Richmond Circuit Court in reaching its decision and ultimately stated: 

 Based on the record before us and applicable law, we are compelled to hold that the court’s decision to dismiss the termination petition was plainly wrong and without evidence to support it because the Department’s evidence established the elements of Code § 16.1-283(B) by clear and convincing evidence. Accordingly, we reverse the judgment of the circuit court, terminate mother and father’s parental rights under Code § 16.1-283(B), approve the Department’s foster care goal of adoption, and remand the matter to the circuit court for any other further proceedings as necessary. See Code § 16.1-283(F).

Local courts do not always get it right. This one did not, and the Appeal prevailed providing help and hope for this child. The Rule of Law stands as your best advocate and an Appeal is a legitimate option! 

 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Father's Parental Rights Terminated Despite Assertion of 5th Amendment Right Against Self Incrimination.

In the case of White v. Petersburg Department of Social Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that evidence was sufficient to prove termination of father’s parental rights was in child’s best interests without consideration of his alleged sexual misconduct, his refusal to participate in psychosexual evaluation or his assertion of his right to remain silent during the proceedings.  The father had not provided DSS with verification of employment or housing, he had not participated in parenting classes, and he had not paid child support or visited the children.  He has tested positive for drug use in the recent past as well.   

Father's Parental Rights Properly Terminated.

In the case of Kilby v. Culpeper County Department of Social Services, the Virginia Court of Appeals, ruled in a published opinion, that a father's parental rights were properly terminated.  The termination was in the child's best interests where father failed to protect child from sexual assault resulting in internal injuries and was criminally convicted for failing to do so.  The conviction pursuant to Virginia Code Section 40.1-103 is a felony assault for purposes of the application of Code § 16.1-283(E)(iii).

Father's Parental Rights Properly Terminated For Failure to Maintain Contact with Children or Plan for Their Future.

In the case of Perez-Velasquez v. Culpeper County Department of Social Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court did not err in terminating father’s parental rights pursuant to Code Section 16.1-283(C), determining that the DSS included father in the development of the foster care plan, holding that DSS gave father sufficient notice, finding that father failed to maintain contact with the children, and determining father did not substantially plan for the future of the children.

Admission of Hearsay Evidence Harmless Error

In the case of Messiah v. Alexandria Department of Human Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court erred in admitting the testimony from a social worker where the content of the challenged statements were admitted in exhibits or other testimony during the hearing.  Further, there was sufficient evidence to support termination of father's parental rights and approval of the foster care plan.

The trial court terminated father’s parental rights under Code § 16.1-283(C)(2). That section provides that termination is warranted if clear and convincing evidence establishes it is in the best interests of the child and that [t]he parent or parents, without good cause, 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 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.

Father does not argue that he substantially corrected or eliminated the conditions which led to the child’s placement. He merely contends that he "pursued numerous services independent of Alexandria DHS."

At the time of the hearing, the child was two years old and had been either in the care of his grandparents or foster care for most of his life. Not only had father failed to secure stable housing or employment during that time, he had refused mental health therapy or medication despite the knowledge he suffered from bipolar disorder and anger management issues. In addition, father had been incarcerated for several months after being convicted for drug distribution. While father’s incarceration, per se, did not warrant the termination of his parental rights, it was "a valid and proper circumstance" the trial court could consider in deciding whether termination was in the child's best interests. Furthermore, from the time father was incarcerated in November 2007 until the termination hearing in June 2008, he saw the child on only three occasions.

Federally Imprisoned Mother Entitled to Continuance in Parental Rights Termination Proceeding

In the case of Mabe v. Wythe County Department of Social Services, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in refusing to grant a mother's request for a continuance for a period of time sufficient to allow her to attend the hearing.  Mother was a federally incarcerated prisoner and required transport to attend the hearing.

Mother's Parental Rights Properly Terminated After DSS Investigated Five Other Family Members As Alternative Placements

In the case of Adams v. Richmond Department of Social Services, the Virginia Court of Appeals, in an unpublishd opinion, ruled the the trial court properly terminated mother's parental rights to her child where evidence proved reasonable diligence was exercised in investigating five family members with whom to place child prior to termination of her rights and evidence proved appellant was unable to remedy conditions leading to placement of child with social services within a reasonable time.

Mentally Ill, Mildly Mentally Retarded Mother's Parental Rights Properly Terminated Where Child Also Had Profound Needs

In the case of Bowman v. Roanoke Department of Social Services, the Virginia Court of Appeals, in an unpublished opinion, ruled that the trial court correctly terminated a mother's parental rights where child had profound mental issues and mother also had mental health issues in addition to suffering from mild mental retardation and had made no progress towards improving her parenting skills despite being offered numerous services by the DSS.