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 

 

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 

Appeals Court Affirms a Fairfax County Circuit Court's Termination of Parental Rights

In a Termination of Parental Rights case where the Fairfax County Department of Social Service prevailed, only the father appealed the decision. Fairfax County DSS v. Odoms proved to be a true best interest of the child case. 

This case involved a mother who was diagnosed as psychotic and unaware she was pregnant until 34 weeks at which time she arrived at the hospital agitated and delivered a baby. Father arrived, denied child was his, refused to sign birth certificate but after mother was detained temporarily in the hospital the father remained present. CPS received a complaint shortly thereafter of abuse and neglect and the child was removed from the mother's home. With most of the case sealed, it soon became clear that neither father nor mother were going to engage with or complete the DSS process to bring the child home. With the father's lengthy criminal history and the mother unable to parent, the termination was granted. 

The Court of Appeals said:

Father contends that the child was removed from his custody because of mother’s “extreme mental health issues” and her inability to care for S.O. He argues that once paternity was established, he completed all court-ordered obligations and demonstrated his ability to provide and care for S.O. Father’s argument focuses solely on the reasons the child was removed from mother’s care, and he ignores the fact that the child was removed from his custody because of his “extensive criminal history, untreated mental illness, and unstable housing.” Although father signed the initial releases that allowed the Department to monitor his progress, once they expired, he refused to sign new ones—preventing the Department from monitoring his compliance with services. 

Further, father’s volatile behavior was a significant hurdle to the Department’s attempts to provide him with services to remedy the conditions. Father’s behavior caused him to be denied entry to the required nurturing parenting program, and it forced the Department to suspend visitation and ultimately change his visitation from in-person to virtual visits. He walked out of his first parent-child assessment, and when he returned, the evaluator felt that he self-sabotaged by how he behaved. He also failed to comply with the drug screening, and the one time he did comply, he tested positive for marijuana use. Thus, as the circuit court found, father did not take advantage of the services and efforts made by the Department and other agencies. Father was unable to recognize the seriousness of mother’s mental illness or its effect on his plans to care for S.O. Nor was he able to regulate his behavior and refrain from acting in an aggressive and disruptive way. Based on the evidence presented and father’s own behavior during the hearing, father “suffer[ed] from a significant condition that affects his mental health,” and despite taking medication, the condition was “not completely under [his] control.” Accordingly, we cannot say that the circuit court erred when it concluded that father had not remedied the conditions that resulted in the Department taking custody of S.O. “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. Termination affirmed. 

An outcome where this child will be given a chance at life! Sometimes complete termination of parental rights is the only just outcome!

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 

‘Virtual’ trial without proper safeguards violates parent’s rights!

‘Virtual’ trial without proper safeguards violates parent’s rights

Since the start of the pandemic, family and juvenile courts everywhere have scrambled to find ways to carry out their proceedings. In many cases, this has meant “virtual” hearings and trials over videoconferencing applications like Zoom. Despite some hiccups, this generally hasn’t prevented courts from performing their functions while protecting the rights of the parties. But as a case from Massachusetts shows, technological problems can sometimes impact the fairness of a proceeding to the point where the result has to be thrown out.

The case was a proceeding in which the state sought to terminate a mother’s and father’s parental rights. The child had been in the custody of the department of children and families since 2014, when she was four. The goal at that time was to reunite her with her parents, but by 2016 the goal changed to adoption and the child was placed with a preadoptive family.

In September 2020, several months into the pandemic, a trial was held in juvenile court to determine whether it was in the child’s best interests for her parents’ rights to be terminated, freeing her up for adoption.

The first day of trial, held over Zoom, was plagued with technical glitches, making it impossible for the mother to participate by phone or video and interrupting the testimony of the state’s witnesses. As a result, the mother, who was not represented by an attorney, missed almost all the state’s evidence against her.

When the trial resumed two days later, the mother had to try and cross-examine witnesses whose testimony she had missed. The judge ended up ordering the termination of rights and denied the mother’s request for a new trial.

But the Massachusetts Supreme Judicial Court reversed the decision, ruling that the trial as conducted was unfair and in violation of the mother’s right to due process of law, and ordered a new trial.

The court made clear that a virtual trial is not, in and of itself, unfair and can be considered perfectly acceptable as long as all the parties’ rights are safeguarded. But the case does highlight the challenges of doing justice online.

Mother Understood Nature And Legal Consequences of Consent to Adoption, Could Not Overturn the Adoption.

In the case of Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith and Link Monroe Smith, the Virginia Court of Appeals, in a published opinion, held that  there was no error in trial court’s finding that Code § 63.2-1216 is not unconstitutional as applied to the facts of this case where mother did not lack understanding of the nature and legal consequences of her consent to the adoption of her child by her grandparents.

Mother and father had a child. The father was abusive and he and mother divorced.  Mother was sentenced to four years incarceration and asked her parents to assume custody of the child. Approximately 2 years later and while the mother was still incarcerated, the maternal grandparents petitioned the court to adopt the child. The adoption was initiated to prevent the abusive father from getting custody of the child. Mother executed a consent to adoption form and shortly thereafter a final order of adoption was entered. Mother was subsequently released from prison, petitioned for custody and that petition was denied due to the adoption order. Mother then sought to set aside the adoption. Maternal grandmother demurred stating that Code Section 63.2-1216 foreclosed mother’s challenge to the adoption.

The trial court agreed with mother that, since she was incarcerated, she should have had a guardian ad litem appointed pursuant to Code Section 8.01-9 and that her rights to due process and equal protection had been violated by the failure to appoint a guardian. However, the trial court ruled that Code Section 63.2-1216 was not unconstitutional as applied to her case. Mother appealed.

The question is whether, assuming arguendo that the circuit court was correct with respect to the issue of mother’s entitlement to a guardian ad litem and the violation of mother’s rights, the facts of this case support mother’s argument that she did not understand the nature and consequences of her consent and the adoption and thus was denied due process.

The VCA held that the evidence supported the trial court’s finding that there was no misunderstanding of the nature of the adoption.

-Mother signed the consent to adoption.

-Mother corresponded with the adoption attorney about the adoption.

-The adoption attorney spoke with the maternal grandparents about the finality of the adoption and neither of them indicated that they did not understand that the adoption would be anything else other than final.

-The maternal grandfather had several phone conversations with mother where the words adoption were used.

-The maternal grandmother talked to the mother over the phone about the adoption and never told mother that the adoption would be temporary.

-Mother knew the objectives of the adoption were to protect the child from the abusive father.

-There had been a previous custody proceeding involving the parties so evidence supports a reasonable inference that mother knew the adoption was a new legal arrangement that went beyond what mere custody provided.

-Since mother was in favor of the adoption to prevent child from going to abusive father, it was difficult to conclude that mother didn’t know the permanency of the adoption wouldn’t apply to her as well.

-Mother saw the adoption order entered in 2011 when she returned from prison, but she waited until 2015 when the maternal grandparents went through a divorce to file for custody and then another three years to file the petition to set aside the adoption.

-Therefore “it is clear from the totality of the facts supports a finding that mother did not lack understanding of the nature and legal consequences of her consent and the adoption. The statute at issue here, Code Section 63.2-1216, provides that six months after the date of entry of an order of adoption that has not been appealed, that order becomes ‘final for all purpose’ and ‘shall not be subject to attack…for any reason,’ including those alleged here.’”

-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.