Paula Daywalt v. Harrisonburg Rockingham Social Services District ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED
PAULA DAYWALT
MEMORANDUM OPINION*
v. Record No. 0399-18-3 PER CURIAM
JULY 10, 2018
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
(Avery B. Cousins, III; Cousins Law Offices, on brief), for
appellant.
(Rachel Erret Figura, Assistant County Attorney; W. Andrew
Harding, Guardian ad litem for the minor child; Convy & Harding,
PLC, on brief), for appellee.
Paula Daywalt (mother) appeals the orders terminating her parental rights to her child and
approving the foster care goal of adoption. Mother argues that the circuit court erred by terminating
her parental rights and approving the goal of adoption because (1) the Harrisonburg Rockingham
Social Services District (the Department) did not “meet the requirements” of Code § 16.1-283(C);
and (2) the Department “did not fully explore” relative placements as required by Code
§ 16.1-283(A). 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.
BACKGROUND
“On appeal, ‘we view the evidence and all reasonable inferences in the light most
favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.
Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.
Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).
Mother and Eric Lam (father) are the biological parents of the child who is the subject of
this appeal. After mother gave birth to the child, mother and father told the hospital staff that
they did not intend to take the baby home and wanted to place him for adoption. The hospital
staff contacted the Department, and a social worker met with mother and father at the hospital
after the child’s birth in December 2016. Father told the social worker that they were
unemployed and homeless and could not take care of the child. The hospital staff and social
worker noticed that mother allowed father to speak for her and would not speak with anyone
unless he was present. The social worker discussed with mother and father their options,
including relative placement, an entrustment agreement, and foster care. The social worker was
“not comfortable” with mother and father signing an entrustment agreement at the hospital
because they “presented as cognitively limited.” When the social worker inquired about possible
relatives who could care for the child, father could not provide contact information for one of his
relatives, and he said that they did not want mother’s relatives to be considered as a possible
placement. Mother left the hospital against medical advice in order to keep an appointment
regarding social security in Winchester.
Since there were no readily available options for relative placement, the Department
placed the child in foster care. On January 11, 2017, the Harrisonburg Rockingham Juvenile and
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Domestic Relations District Court (the JDR court) adjudicated that the child was abused or
neglected. Mother did not appear at the hearing.1
Mother returned to Pennsylvania, where she was raised. Her parents, Luther and Patricia
Daywalt, lived in Pennsylvania. Luther and Patricia Daywalt stated that they wanted to be
considered a relative placement for the child. In January 2017, the Department sent a request to
Pennsylvania through the Interstate Compact on Placement of Children (ICPC), but it was denied
because of prior child protective services (CPS) concerns. Luther and Patricia Daywalt did not
raise any of their biological children. Mother and her two brothers were removed from their
care, and mother had lived with her great-great uncle since she was young.
Mother’s great-great uncle and aunt, Lee and Mary Ditch, also lived in Pennsylvania.
Lee and Mary Ditch expressed an interest in having the child being placed with them, so in
January 2017, the Department sent a request to Pennsylvania through the ICPC. On February 16,
2017, Lee and Mary Ditch attended an orientation session, where they received paperwork to
complete by March 16, 2017. On March 24, 2017, Mary Ditch contacted the Franklin County
Children and Youth Services in Pennsylvania and requested an extension, which was granted
through April 10, 2017. Then, Mary Ditch informed the local department that she was
“struggling to complete a lot of the paperwork due to lack of cooperation from the rest of the
household.” On May 17, 2017, the ICPC was denied because of non-compliance with the home
study process and failure to complete the required paperwork. In addition, the Department
expressed concern about placing the child with Lee and Mary Ditch because of their age and
1
The Department presented evidence at the circuit court hearing that mother did not
appear at the preliminary removal hearing in December 2016, the adjudicatory hearing in
January 2017, the initial foster care review and dispositional hearing in February 2017, and the
foster care review hearing in May 2017. The first hearing that mother attended was the
termination of parental rights hearing in the JDR court.
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medical problems. Lee Ditch was seventy-eight years old and had significant hearing loss.
Mary Ditch was diagnosed with cancer.
On January 18, 2017, mother told the Department that she did not want to have any
contact with the Department or visit the child. Considering that mother and father initially
expressed no interest in caring for the child, the Department pursued a goal of relative placement
and a concurrent goal of adoption. However, mother later changed her mind about her
involvement with the child, and the Department sent her a letter explaining what services she
needed to complete. The Department required mother to engage in individual counseling, group
counseling, medication management, monthly meetings with the Department, random drug
screens, supervised visitation with the child, and a psychological evaluation with Dr. Joann
Grayson. The Department also required that mother pay child support and follow all court
orders.
The Department offered mother supervised visitation, and although she did not have a
regular schedule for visitations, she did not miss any of the scheduled visitations. Mother
usually visited once a month; however, in September 2017, she asked to visit more frequently
because her lawyer told her to request additional visits. Mother’s family came with her to the
visits, and it was not until September 18, 2017 that mother visited with the child by herself for
thirty minutes.2 The Department noticed that during the visitations, mother did not know what to
do if the child was fussy because she knew only three things to do to calm the child, namely
change him, feed him, or place him on the blanket on the floor. Her family had to help her with
the child. The Department also observed that mother was “not too aware of her surroundings
and what [the child] could be taking in” because she would use curse words or inappropriate
language around the child.
2
The Department supervised all of the visits.
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After one of the supervised visits in July 2017, the Department reviewed mother’s
progress with her and discussed the services that she had to complete. Mother stated that she and
Patricia Daywalt completed a parenting class in Pennsylvania, and she provided a copy of the
certificate to the Department a week before the termination of parental rights hearing in the JDR
court.
In January 2017, the Department recommended that mother complete a psychological and
parenting evaluation with Dr. Grayson. In August and September 2017, mother finally met with
Dr. Grayson. After interviewing, observing, and testing mother, Dr. Grayson concluded that
mother had “a combination of intellectual impairment and serious psychiatric difficulties.”
Dr. Grayson found that mother was “dependent upon others for direction” and “unable to operate
independently.” Dr. Grayson also determined that mother had “unrealistic ideas about the time
and attention children need,” and consequently, was a “high risk for serious neglect.”
Dr. Grayson was concerned that mother had “an inflated opinion of her abilities as a parent” and
would be “unlikely to accept direction because she feels as though she knows everything she
needs to know in order to parent.” Dr. Grayson described mother as “self-absorbed” and stated
that she “lack[ed] empathy of children and other people.” Dr. Grayson explained, “Given her
high endorsement of corporal punishment, her low frustration level, her propensity to having
anger outbursts, and her inability to empathize with children, [mother] is at risk for physical
abuse.” Dr. Grayson expressed concern that there would be “safety issues if [mother] would be
left alone to care for a child, even for a short time.” Lee Ditch agreed with this assessment and
told Dr. Grayson that mother “would never be left alone with her child (‘not for a minute’!).”
Dr. Grayson recommended that mother be supervised while she is with children, and that if the
child was placed with Lee Ditch or Patricia Daywalt, “the maximal amount of in-home services
should be supplied.”
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On October 4, 2017, the JDR court entered the permanency planning order and approved
the goal of adoption. On the same date, the JDR court terminated mother’s parental rights to the
child. Mother appealed to the circuit court.
On December 12, 2017, the parties appeared before the circuit court. The Department
presented evidence that mother did not have independent housing and had never lived
independently. The social worker testified that she had not “seen anything about [mother] and
the way she operate[d] that indicate[d] that [mother was] independent in any sort of way.”
The social worker also testified that Lee Ditch admitted that mother “can’t do parenting,
can’t do parenting by herself with [the child], but that they would all be around to help out.”
Mary Ditch testified that mother could be a “good mom” with help.
The Department investigated both paternal and maternal relatives as possible relative
placements. After investigating several paternal relatives, the Department found “no viable
placement on the paternal side.” The Department expressed concerns about Lee and Mary Ditch
as possible relative placements because of their age and health conditions. Mary Ditch testified
that her husband had a “mild heart attack” over the summer.
Another concern was Lee Ditch’s criminal history. Lee Ditch admitted that “a little over
a year” ago, he pleaded guilty to a charge, but he was not sure what it was. The original charge
was that he “touched” a minor girl, but “they reduced [his] charge.” When asked by the circuit
court, he said that he could not remember what his conviction was.
The Department also expressed concerns about Luther and Patricia Daywalt as possible
relative placements because of their CPS history and substance abuse.3 At trial, Luther Daywalt
admitted to using marijuana and being convicted of “stealing a dump truck trailer and Bobcat.”
3
On May 17, 2017, Luther Daywalt refused to take a drug test, and on October 3, 2017,
he tested positive for marijuana. Patricia Daywalt tested positive for marijuana on May 17 and
October 3, 2017.
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He served three years in prison. He also stated that he and Patricia Daywalt were living in a
trailer because he “lost everything” in a house fire in February 2017.
The guardian ad litem submitted photographs of the front and rear yards of the homes
where the Ditches and Daywalts lived. Luther Daywalt identified several vehicles in the yard, as
well as a car lift, container, large brush pile, and the “remainder of what was [his] home” after it
burned.
Mother testified that she was living with Lee and Mary Ditch. She admitted that she
completed the psychiatric evaluation, the parenting classes, and went to the Community Services
Board in Pennsylvania. Mother explained that her parenting classes consisted of two meetings at
the Chambersburg YMCA. She testified that she knew “what’s needed to take care of a kid.”
The Department presented evidence that the child was doing well in foster care and was
placed in a potential adoptive home. The child was receiving physical therapy to help with his
gross motor development. The social worker testified that the child was progressing.
After hearing all of the evidence and argument, the circuit court terminated mother’s
parental rights pursuant to Code § 16.1-283(C)(2) and approved the goal of adoption. The circuit
court held that none of the maternal relatives would be appropriate relative placements. On
December 12, 2017, the circuit court entered an order terminating mother’s parental rights
pursuant to Code § 16.1-283(C)(2), and on December 19, 2017, it entered the permanency
planning order and approved the goal of adoption. This appeal followed.
ANALYSIS
Mother argues that the circuit court erred by terminating her parental rights and
approving the goal of adoption.4 “Where, as here, the court hears the evidence ore tenus, its
4
With respect to mother’s challenge of 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.”
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finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or
without evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App.
185, 190, 717 S.E.2d 811, 814 (2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3
Va. App. 15, 20, 348 S.E.2d 13, 16 (1986)). “When considering termination of parental rights,
‘the paramount consideration of a trial court is the child’s best interests.’” Id. (quoting Logan v.
Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460 463 (1991)).
Code § 16.1-283(C)(2)
Mother argues that the circuit court erred in terminating her parental rights and approving
the goal of adoption because the Department failed to comply with the statutory requirements in
Code § 16.1-283(C). Mother asserts that she met all of the Department’s requirements because
she completed the psychiatric and parenting evaluation, attended parenting classes, contacted the
Community Services Board in Pennsylvania, and visited with the child. She further contends
that the Department did not provide her with reasonable and appropriate services, especially
considering her cognitive limitations and her “abusive and controlling” relationship with father.
The circuit court terminated mother’s parental rights pursuant to 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.
Code § 16.1-283(C)(2).
Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265 n.3, 616 S.E.2d 765, 769 n.3
(2005).
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“[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.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257,
271, 616 S.E.2d 765, 772 (2005). “Considerably more ‘retrospective in nature,’ subsection C
requires the court to determine whether the parent has been unwilling or unable to remedy the
problems during the period in which he has been offered rehabilitation services.” Id. (quoting
City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d
463, 466 (2003)).
The evidence proved that mother was unwilling or unable to remedy the problems that
led to the child being placed, and remaining, in foster care. In December 2016 and January
2017, mother abandoned the child and told the Department that she did not want to care for the
child. Mother contends that she acted this way because father was abusive and controlling her,
but even after her family became more involved, she was slow to comply with the Department’s
requirements. She did not come to any of the hearings until the JDR court terminated her
parental rights in October 2017. She only visited the child once a month until her lawyer told her
in September 2017 to request additional visits. When she visited the child, she required help
from her family if the child did not respond after she changed him, fed him, and placed him on
the floor. She did not have her first meeting with Dr. Grayson until August 2017.
The circuit court found that Dr. Grayson’s report was “quite telling as to what the
mother’s limitations are [and] her needs for assistance in almost everything dealing with
parenting.” The circuit court held that “mother is pretty much reliant on other people for
everything, everything.” It concluded that mother is “in effect the same person now who
abandoned the child[,] with the same limitations and problems that existed prior to the
abandonment[,] other than she no longer lives with [father].”
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Contrary to mother’s arguments, the Department proved with clear and convincing
evidence that mother failed to remedy substantially the conditions that led to the child being
placed in foster care and that termination of parental rights was in the child’s best interests. “We
have defined clear and convincing evidence as ‘that measure or degree of proof which will
produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to
be established.’” C. S. v. Va. Beach Dep’t of Soc. Servs., 41 Va. App. 557, 565-566, 586 S.E.2d
884, 888 (2003) (quoting Gifford v. Dennis, 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1
(1985)). “It is intermediate, being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear
and unequivocal.” Id. at 566, 586 S.E.2d at 888 (quoting Gifford, 230 Va. at 198 n.1, 335 S.E.2d
at 373 n.1).
Mother also argues that the Department did not offer her reasonable and appropriate
services. “‘Reasonable and appropriate’ efforts can only be judged with reference to the
circumstances of a particular case. Thus, a court must determine what constitutes reasonable and
appropriate efforts given the facts before the court.” Ferguson v. Stafford Cty. Dep’t of Soc.
Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992). In the foster care plan dated January 30,
2017, the Department required mother to participate in supervised visitation, parenting classes,
individual and group counseling, monthly meetings with the social worker, and a monthly
parenting group. The Department also recommended that mother complete the psychological
examination with Dr. Grayson, but mother did not meet with Dr. Grayson until August and
September 2017. Dr. Grayson’s first recommendation was that mother should have supervised
contact with children. Dr. Grayson found that mother’s cognitive disabilities affected her ability
to parent and live independently. The testing showed that mother was at a “very high risk of
neglect, for physical abuse, for emotional abuse, and for lack of proper supervision of children.”
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Since mother did not complete the psychological evaluation earlier in the process, the
Department was unable to provide additional services, beyond counseling and supervised
visitation, to mother prior to the termination of parental rights hearing. We find that the
Department offered reasonable and appropriate services given the circumstances of this case.
At the time of the circuit court hearing, the Department proved that mother was unwilling
or unable to remedy the situation that led to the child being placed, and remaining, in foster care.
The circuit court found that mother “made some visits” with the child, “attended two classes at a
YMCA . . . for a parenting class,” and “finally completed the psychological and parenting
evaluation.” However, after considering all of the evidence and mother’s needs, the circuit court
held that it was in the child’s best interests to terminate mother’s parental rights. “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
Cty. Dep’t of Human Servs., 62 Va. App. 296, 322, 746 S.E.2d 509, 522 (2013) (quoting
Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990)).
Accordingly, the circuit court did not err in terminating mother’s parental rights pursuant
to Code § 16.1-283(C)(2).
Code § 16.1-283(A)
Mother argues that the circuit court erred in terminating her parental rights and approving
the goal of adoption because the Department “did not fully explore the placing of the child with
[mother’s] family as required by Code [§] 16.1-283(A).” Mother contends that her family was
supportive of her and the child and immediately expressed an interest in being considered as a
relative placement.
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Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to relatives of the child, including grandparents.” Code § 16.1-283(A). “This Court has
held that this provision obligates [the Department] ‘to produce sufficient evidence so that the
court may properly determine whether there are relatives willing and suitable to take custody of
the child, and to consider such relatives in comparison to other placement options.’” Castillo v.
Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 567, 811 S.E.2d 835, 845 (2018)
(quoting Brown v. Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 217, 597 S.E.2d 214, 220
(2004)).
The Department presented testimony from several social workers about their
investigations of placing the child with relatives. Furthermore, Luther Daywalt, Lee Ditch, and
Mary Ditch testified at the hearing. The evidence proved that the ICPC denied the placements
with the Daywalts and the Ditches.
After hearing all of the evidence, the circuit court held that Luther and Patricia Daywalt
were not appropriate placements because they previously had children removed from their care.
In addition, the circuit court found that “disorganization” and “chaos” described “the general
condition of where they’re living,” and the circuit court was concerned about the positive
marijuana tests.
The circuit court also found that Lee and Mary Ditch were not viable relative placements
either. The circuit court emphasized their failure to complete the paperwork for the ICPC and
stated that the work to complete the paperwork was “nothing compared to the work of trying to
take care of a one year old.” The circuit court found that they were not in good health.
However, the circuit court was especially concerned that Lee Ditch was charged with “some sort
of inappropriate touching a child.” With respect to his testimony when he said that he did not
remember what the offense was, the circuit court stated, “Well, he’s either not telling the truth, or
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if he genuinely doesn’t know what he pleaded guilty to that shows a diminution in capacity that
reflects worlds on his inability to serve as an appropriate foster parent if he doesn’t know what
he pleaded guilty to.”
The circuit court held that there was “exceptional – lots of efforts made to find an
appropriate relative placement, but it’s been without success.” Based on the totality of the
evidence, the circuit court did not err in finding that the Department investigated possible
relative placements, but none were suitable.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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