Ivan Rucker v. Alexandria Department of Community and Human Services ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Alston and Russell
UNPUBLISHED
IVAN RUCKER
MEMORANDUM OPINION BY
v. Record No. 0931-17-4 JUDGE ROSSIE D. ALSTON, JR.
APRIL 24, 2018
ALEXANDRIA DEPARTMENT OF COMMUNITY
AND HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
(Isabel Kaldenbach; Isabel Kaldenbach, PLLC, on brief), for
appellant. Appellant submitting on brief.
(James L. Banks, City Attorney; George McAndrews, Assistant
City Attorney; Christopher T. Mays, Guardian ad litem for the
minor child, on brief), for appellee. Appellee and Guardian ad
litem submitting on brief.
Ivan Rucker (appellant) argues that the trial court erred in terminating his parental rights
for four reasons: the trial court 1) relied upon a document not available to all parties; 2) applied
the incorrect evidentiary standard; 3) improperly found that the Department of Community and
Human Services (DCHS) provided adequate services; and 4) incorrectly found that DCHS
provided the requisite evidence to support termination. We disagree.
BACKGROUND
Appellant and Jamillia Hansford (Hansford) are the biological parents of a minor child,
E.H. E.H. was born on June 19, 2015. After conducting an investigation, DCHS removed E.H.
from Hansford’s care five days later. DCHS filed an emergency removal petition and affidavit
with the Alexandria Juvenile and Domestic Relations District Court (J&DR court). The affidavit

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
documented that Hansford is infected with the human immunodeficiency virus (HIV) and may
have transmitted the disease to E.H. Even so, Hansford does not medicate herself or E.H. as
directed. It was also alleged that Hansford has substance abuse issues and used marijuana while
pregnant. And while residing at Alexandria Community Shelter (ACS), Hansford left E.H.
“unattended or with another resident at least four times after being instructed not to do so.”
Hansford was also recently hospitalized for psychosis. It was also noted that appellant was
incarcerated at the time E.H. was removed until October of 2015. The J&DR court entered an
order on June 25, 2015, finding that E.H. “would be subjected to an imminent threat to life or
health to the extent that severe or irremediable injury would be likely to result.”
At the preliminary removal hearing, the J&DR court made the same findings, awarded
temporary legal custody to DCHS, provided visitation to Hansford, and entered a preliminary
child protective order against Hansford on behalf of E.H. Hansford objected to a finding of
abuse or neglect, and an adjudicatory hearing was set for July 31, 2015. At that hearing, the
J&DR court found that E.H. was abused or neglected. As a further incident of that hearing, the
J&DR court also ordered appellant to submit to a paternity test. Appellant signed the
adjudicatory order seen and objected, noting a “lack of evidence of abuse/neglect by [him.]” A
dispositional hearing was set for August 31, 2015. DCHS filed its foster care plan with the
J&DR court with the goal of return home and outlined services offered and concerns to be
remedied by Hansford and appellant before return home was possible.
At the dispositional hearing, the J&DR court transferred custody of E.H. to DCHS and
entered a final child protective order. The J&DR court revised the foster care plan to include
relative placement as a concurrent goal, ordered Hansford and appellant to “utilize their best
efforts” to comply with the plan, and directed DCHS to continue “to utilize reasonable efforts in
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making appropriate service referrals.” A review hearing was set for December 17, 2015.
Appellant signed the order seen and objected to.
On October 13, 2015, the paternity test established that the probability appellant was
E.H.’s father was 99.99%. Appellant was released from incarceration on October 15, 2015.
At the foster care review hearing, the J&DR court approved the foster care plan. The
permanency planning hearing was set for April 6, 2016. Appellant signed the order noting that
he “would like [E.H.] to be returned home sooner or . . . have overnight visits being with
[Hansford].”
On March 7, 2016, DCHS filed a petition requesting a permanency planning hearing
within six months with the goal of “Return Home/Relative Placement.” DCHS filed a second
petition on July 1, 2016 with adoption as the revised goal. At the permanency planning hearing
on October 31, 2016, the J&DR court terminated appellant’s and Hansford’s parental rights
regarding E.H and approved DCHS’s updated foster care plan. Appellant and Hansford appealed
to the Circuit Court of the City of Alexandria (trial court). On January 5, 2017, Hansford filed
addendums for protected identifying information-confidential pursuant to Code § 20-121.03
regarding her parental capacity assessment. Hansford’s counsel signed the addendum on her
behalf.
The trial took place on May 2-3, 2017. DCHS attempted to admit the J&DR court’s
orders terminating Hansford’s and appellant’s parental rights and approving the foster care plan.
Hansford objected, and appellant joined, arguing that this was a de novo hearing, and that the
trial court was required to make independent findings, and that the evidentiary standard for the
termination proceeding was clear and convincing, not preponderance. The trial court sustained
the objection and did not admit the orders. DCHS also attempted to admit Hansford’s parental
capacity assessment, conducted by Dr. Christopher Bishop. Appellant objected, arguing he did
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not have access to the assessment. DCHS responded that the J&DR court did not allow appellant
access because Hansford asserted her right to privacy but would grant access if he “could show a
compelling need for it.” Furthermore, DCHS argued that appellant did not suffer prejudice as
the assessment pertained to Hansford. In addition, DCHS filed a confidential addendum with the
trial court. The trial court stated that appellant would need to establish that he would suffer
prejudice if the assessment was admitted. The trial court found that Hansford would have to
consent to give appellant access and then accepted DCHS’s representation that the assessment
minimally referenced appellant. Appellant next argued that he would suffer prejudice because he
would not have the opportunity to cross-examine Dr. Bishop and that the trial court would have
access to a document he does not. He further argued that a theme of DCHS’s case is that
appellant “does not understand [Hansford’s] mental health issues” and that the assessment
contains relevant information. DCHS responded that appellant could have subpoenaed
Dr. Bishop. The trial court ruled that it would only consider Hansford’s assessment against her
and would allow appellant to cross-examine Dr. Bishop if necessary. The assessment was
provisionally admitted. Appellant was not authorized to view the document.
DCHS presented its evidence. DCHS established that Hansford and appellant were
ordered to comply with DCHS’s foster care plan which required them to participate in services
and remedy conditions requiring E.H.’s removal. DCHS explained, as stated in the affidavit, that
removal was necessary “to ensure [E.H.] receives appropriate care and attention, has stability and
[that] all of her needs are met.” The conditions requiring E.H.’s removal were: “Hansford’s lack
of employment, homelessness, questionable mental health and recent psychiatric
hospitalizations[,] poor decision making and [E.H.’s] need for daily medication and routine
medical care.” After E.H.’s paternity was established and upon appellant’s release from
incarceration, DCHS offered appellant case management services, family engagement services,
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referrals, follow-up services, a parental fitness evaluation, the Fathers In Touch program,
visitation, and parenting education. Appellant received vocational services and housing
assistance through other entities.
Appellant completed the Fathers in Touch program, underwent a mental health evaluation
and a parental capacity assessment, and attended visitation. Dr. Mohamed Mansaray conducted
appellant’s parental capacity assessment. According to Dr. Mansaray, while appellant “has a
great desire to be a parent and obviously cares about the wellbeing of [E.H.],” Dr. Mansaray
concluded appellant presents a moderate risk of abuse and neglect to E.H. Appellant “holds
expectations of [E.H.] that exceed her developmental capabilities” and “downplayed the
difficulty that may arise from []Hansford’s ongoing struggles with mental illness.” Ultimately,
his “ability to react appropriately to stressors, emotionally connect, obtain stable employment,
establish secure housing, and demonstrate judgment effectively must improve in order for [the]
risk to be decreased.” Dr. Mansaray suggested that appellant be offered an individual parenting
coach, a substance abuse assessment, individual counseling, and marital counseling. Appellant
refused to undertake a substance abuse assessment, individual counseling, and marital
counseling.
The evidence produced at trial established that even though both appellant and Hansford
participated in services, DCHS grew increasingly concerned about appellant’s and Hansford’s
ability to parent E.H. Hansford assaulted appellant in November of 2016. Hansford was
required to provide updates on her physical health but failed to do so and remained noncompliant
in taking her medication. In supervised visitations, appellant and Hansford were provided two
parenting coaches; one focused on improving E.H.’s development and one focused on improving
attachment. Initially, appellant and Hansford were engaged. However, it was unclear whether
coachings were being applied outside of supervised visitations. Hansford’s mental health issues
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presented themselves more acutely over time. During visitations, Hansford would become
“enraged.” This resulted in appellant walking out of visitations. This pattern became more
frequent. Later in March of 2016, appellant and Hansford arrived at DCHS for a meeting
seemingly under the influence.
In late April of 2016, appellant requested to participate in Hansford’s mental health
treatment. Hansford refused, “start[ing] a . . . regress[ion in appellant’s and Hansford’s progress
during visitation].” Later that month, one of the parenting coaches provided cues to be
implemented with E.H. Appellant encouraged Hansford to apply them. Hansford refused. An
argument ensued. Appellant exited the home, leaving E.H. behind with Hansford. Hansford
became “verbally threatening.” The coach concluded the session. While leaving, the coach
“knocked” into E.H. Hansford shouted obscenities at the coach. Visitation was temporarily
moved to DCHS. The development-oriented coach stopped providing services during visitation
and worked with E.H. at daycare. Even though encouraged to visit E.H. at daycare, only
Hansford took advantage of that opportunity on one occasion. In May of 2016, Hansford was
hospitalized for mental health reasons under a temporary detention order. There was a concern
that Hansford was not taking her psychotropic medication as directed.
DCHS advised appellant and Hansford that it was considering adoption as a goal for E.H.
in June of 2016. Subsequent visitations “were very emotionally-laden. . . . [Hansford’s] mental
health issues began to present more intensely,” and appellant began to disengage. He either was
not present for the entire visitation, would retreat to the bedroom during visitations, or be on his
phone. DCHS employees testified that although appellant did not need to have a working
knowledge of Hansford’s specific mental condition, it was hoped that he would appropriately
tend to E.H. to minimize the impact of Hansford’s mental health issues on E.H. Appellant was
unable to do so. At one session, appellant was directed to remove E.H. when Hansford was
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decompensating. Appellant refused, responding that E.H. would “have to get used to that.” In
addition, Hansford caused disturbances at DCHS on two occasions during July of 2016.
In August of 2016, DCHS informed appellant and Hansford that termination of parental
rights was being considered. The regression in appellant’s and Hansford’s progress continued.
On September 22, 2016, appellant fell asleep during visitation. Hansford became agitated, and a
DCHS employee had to seek “additional help to ensure everybody’s safety.” Hansford
confessed to being arrested more than once for hitting appellant. In November of 2016,
Hansford assaulted a DCHS employee and attempted to assault another; she was involuntarily
taken for a mental health evaluation. At the scene, appellant indicated that Hansford was
“bi-polar and not taking her medication.” Hansford was then temporarily hospitalized in
December of 2016 for psychosis. In January of 2017, Hansford was involuntarily hospitalized
after exhibiting manic behavior; she made suicidal statements and “laugh[ed] to herself when
nobody else was talking.”
The attachment-focused parenting coach testified that while there were positive moments
among appellant, Hansford, and E.H., neither parent progressed to a point where they could form
a healthy attachment with E.H. Appellant developed negative responses to coaching, and
Hansford was unable to put E.H.’s needs above her own. In addition, neither parent was able to
grasp that if one parent was unable to meet E.H.’s needs, the other must compensate.
Regarding employment, Hansford was employed from the summer of 2015 until March
2016.
Regarding living arrangements, prior to E.H.’s removal, Hansford lived at ACS. She was
then housed at the Carpenter Shelter. Appellant was separately housed there after being released.
Hansford was asked to leave in November of 2015 for not complying with shelter rules-there
were times when she was unemployed and she interacted with other residents aggressively.
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Appellant was asked to leave following a positive drug screen in the early months of 2016. The
Transitioning Adults into Living Successfully (TRAILS) program, through New Hope Housing,
helped Hansford find an apartment. She was asked to leave due to noise complaints in July of
2016. TRAILS then helped her secure an apartment at Landmark Towers where appellant lived
with her. She left that residence in November of 2016. She now resides at ACS. Appellant and
Hansford, two weeks prior to trial, appeared together at the Carpenter Shelter inquiring about
housing.
Regarding relative placement, DCHS investigated one possibility but found the
individual was not a viable option.
It was also noted that E.H. was not developing as she should be.
At the conclusion of DCHS’s case, appellant made a motion to strike arguing that DCHS
petitioned for termination under Code § 16.1-283(B) and (C) but did not present clear and
convincing evidence regarding: abuse and neglect under (B), prior efforts of DCHS to prevent
E.H.’s removal under (B), of the conditions under (C), and participation in services provided
under (C). Appellant contended he complied with services but DCHS did not provide him those
Dr. Mansaray recommended. Appellant also indicated he was unaware of Hansford’s mental
health issues. Hansford also made a motion to strike, arguing that the J&DR court’s finding of
abuse and neglect alone did not satisfy the evidentiary burden before the trial court. Hansford
also argued that termination was not in the best interests of E.H.
In response, DCHS contended that the evidence provided satisfied the requirements under
both subsections. Appellant refused some services offered and disengaged from those he did
participate in. Pursuant to subsection (C), appellant and Hansford had more than a year to
substantially remedy conditions and did not do so.
The trial court denied both motions to strike.
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Appellant testified. The parties stipulated that he was “full-time or close to full-time
employed consistently throughout [the course of this case].” Regarding housing, appellant
testified that he and Hansford lived together until the day before trial when Hansford became
irate and left the apartment. Appellant asserted he wanted to “stay away from [Hansford]” and
focus on E.H. Appellant testified he only missed visitations and did not visit E.H. at daycare
because he believed both he and Hansford were required to attend together.
At the conclusion of appellant’s case, Hansford renewed her motion to strike and
appellant joined. The trial court denied the renewed motion to strike.
The trial court terminated appellant’s and Hansford’s parental rights, found that the
requirements of Code § 16.1-283(B)(1), (B)(2), and (C)(2) were met, that the evidence was clear
and convincing, and approved DCHS’s foster care plan. The trial court indicated E.H. had been
in foster care for almost two years, substantial progress had not been made to warrant additional
time, and ruling otherwise would not be in the best interests of E.H. In its permanency planning
order, the trial court also found that DCHS made reasonable efforts “to reunite the child with
[]her parents” and noted termination of parental rights was in the best interests of E.H. In its
involuntary termination order, the trial court terminated parental rights pursuant to Code
§ 16.1-283(B)(1), (2) and (C)(2).
Now comes this appeal.
ANALYSIS
“[I]t would be unfitting to not acknowledge that ‘[t]he termination of parental rights is a
grave, drastic and irreversible action.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App.
375, 400, 719 S.E.2d 329, 341 (2012) (quoting Helen W. v. Fairfax Cty. Dep’t of Human Dev.,
12 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)). “When reviewing a decision to terminate
parental rights, we presume the [trial] court ‘thoroughly weighed all the evidence, considered the
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statutory requirements, and made its determination based on the child’s best interests.’” Toms v.
Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting
Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)).
“[Trial] courts are vested with broad discretion in making the decisions necessary to guard and to
foster a child’s best interest.’” Thach v. Arlington Cty. Dep’t of Human Servs., 63 Va. App.
157, 168, 754 S.E.2d 922, 927 (2014). When the determination is based on evidence heard ore
tenus, the trial court’s decision “is entitled to great weight and ‘will not be disturbed on appeal
unless plainly wrong or without evidence to support it.’” Id. at 168-69, 754 S.E.2d at 928
(quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460,
463 (1991)). Further, the evidence must be considered “in the light most favorable to the party
prevailing in the [trial] court.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62 Va. App.
296, 303, 746 S.E.2d 509, 513 (2013).
A. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN RELYING ON THE ASSESSMENT.
Appellant contends that the trial court erred when it relied on a document not available to
all parties. Appellant framed this as an issue of due process in that being denied access to
Hansford’s parental capacity assessment inhibited appellant in developing his defense.
“[I]n a bench trial, the trial [court] is presumed to disregard prejudicial or inadmissible
evidence, and this presumption will control in the absence of clear evidence to the contrary.”
Pierce v. Commonwealth, 50 Va. App. 609, 616, 625 S.E.2d 785, 789 (2007) (quoting Hall v.
Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc)).
“When a state infringes upon a parent’s constitutional right to the companionship of his
. . . child in order to protect the child from abuse and neglect, it must satisfy the mandates of
procedural due process.” Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 829, 433
S.E.2d 500, 505 (1993) (citing Santosky v. Kramer, 455 U.S. 745, 751 (1982)). “Therefore, if
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the state seeks to sever the parent-child relationship, the state is required to provide the parent
with ‘fundamentally fair’ procedures in the termination proceeding.” Id. “Code § 16.[1]-283
complies with the constitutional mandate of procedural due process.” Id. at 830, 433 S.E.2d at
505. “The requirements of the due process clause are satisfied if a party ‘has reasonable notice
and reasonable opportunity to be heard and to present his claim or defense, due regard being had
to the nature of the proceeding and the character of the rights which may be affected by it.’”
Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916 (1991) (quoting Dohany v.
Rogers, 281 U.S. 362, 369 (1930)). “The ‘practicalities and particularities of the case’ must be
considered in determining whether these requirements are reasonably met.” Id. (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
Assuming it was error, it was harmless. “In Virginia, non-constitutional error is harmless
‘[w]hen it plainly appears from the record and the evidence given at the trial that the parties have
had a fair trial on the merits and substantial justice has been reached.” Andrews v. Creacey, 56
Va. App. 606, 625, 696 S.E.2d 218, 227 (2010) (quoting Code § 8.01-678). “If, when all is said
and done, [it is clear] that the error did not influence the [trial court], or had but slight effect, . . .
the judgment should stand.” Id. (quoting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d
778, 731-32 (2001)). When the objection arose, the trial court requested that the parties argue
whether appellant would suffer prejudice. After ruling that appellant would not be granted
access to the assessment, the trial court noted it would only consider Hansford’s assessment
against her and provided appellant the opportunity to cross-examine Dr. Bishop if necessary.
Witnesses testified extensively about Hansford’s mental health issues in relation to appellant’s
ability to parent E.H. There is no evidence that the trial court improperly relied on Hansford’s
assessment.
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Turning to appellant’s due process rights, as previously stated, the trial court requested
argument on possible prejudice. When it ruled on appellant’s access to the assessment, it
accepted DCHS’s representation that Hansford’s assessment minimally referred to appellant and
indicated appellant would have the opportunity to cross-examine Dr. Bishop if necessary. In
consideration of all of these circumstances, the trial court complied with any applicable mandates
of due process.
B. THE TRIAL COURT EMPLOYED THE APPROPRIATE STANDARD, AND THE TRIAL COURT PROPERLY
FOUND THAT DCHS PRESENTED SUFFICIENT EVIDENCE.
Appellant next contends that the trial court relied on the incorrect evidentiary standard in
terminating his parental rights and had insufficient evidence to make that determination.
“We first note that ‘absent clear evidence to the contrary in the record, the judgment of a
trial court comes to us on appeal with a presumption that the law was correctly applied to the
facts.’” City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 561, 580
S.E.2d 463, 465 (2003) (quoting Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d
286, 291 (1977)). There is nothing within the record to support that the trial court applied the
incorrect evidentiary standard in this termination proceeding. To the contrary, the trial court
clearly recognized the standard it was bound to apply. It ruled DCHS met its burden under Code
§ 16.1-283(B)(1), (2), and (C) and noted that the evidence was clear and convincing.
Code § 16.1-283 establishes the procedures and grounds
under which a court may order the termination of residual parental
rights. The statute provides as follows, in relevant part:
B. The residual parental rights of a parent or parents of a child
found by the court to be neglected or abused and placed in foster
care as a result of (i) court commitment; (ii) an entrustment
agreement entered into by the parent or parents; or (iii) other
voluntary relinquishment by the parent or parents may be
terminated if the court finds, based upon clear and convincing
evidence, that it is in the best interests of the child and that:
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1. The neglect or abuse suffered by such child presented a
serious and substantial threat to his life, health or
development; and
2. It is not reasonably likely that the conditions which
resulted in such neglect or abuse can be substantially
corrected or eliminated so as to allow the child’s safe return
to his parent or parents within a reasonable period of
time. . . .
* * * * * * *
C. The residual parental rights of a parent or parents of a child
placed in foster care as a result of court commitment, an
entrustment agreement entered into by the parent or parents or
other voluntary relinquishment by the parent or parents may be
terminated if the court finds, based upon clear and convincing
evidence, that it is in the best interests of the child and that:
* * * * * * *
2. The 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. . . .
Winslow, 40 Va. App. at 561-62, 580 S.E.2d at 465-66 (quoting Code § 16.1-283(B)(1), (B)(2),
and (C)(2)).
Regarding the best interests of E.H., “[t]his Court has [recognized] that ‘there is no
simple, mechanical, ‘cut and dried’ way to apply the best interests of the child standard.’” Eaton
v. Washington Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 331, 785 S.E.2d 231, 238 (2016)
(quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 48, 764 S.E.2d 284, 291 (2014)).
“The question must be resolved . . . in light of the facts of each case.” Id. (quoting Toombs v.
Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405, 407 (1982)).
In determining what is in the best interests of the child, a [trial]
court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
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and physical and mental condition of the parents; the relationship
existing between each parent and each child; the needs of the child
or children; the role which each parent has played, and will play in
the future, in the upbringing and care of the child or children; and
such other factors as are necessary in determining the best interests
of the child or children.
Id. (quoting Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d
575, 581-82 (2004)).
Appellant was not involved in E.H.’s life until October of 2015 when E.H. was already
approximately four months old. While it was clear that appellant expressed interest in parenting
E.H., he was unable to appropriately respond to E.H. when Hansford’s mental health issues
manifested. Appellant would abandon E.H. and exit the home. This resulted in E.H. being left
with Hansford as she continued to unravel. DCHS employees noted that appellant had not
learned to minimize the impact of Hansford’s mental health issues on E.H. A DCHS employee
also testified that appellant did not progress to a point where he formed a healthy attachment
with E.H. And according to his parental capacity report, Dr. Mansaray noted appellant presented
a moderate risk of abuse and neglect to E.H. In addition, appellant’s housing situation was in
flux despite his stable financial state. Although appellant testified that he now desires to focus
on E.H., he and Hansford were living together and intended to raise E.H. together until the day
before trial. After being informed that DCHS was considering adoption, appellant developed
negative responses to coaching and ultimately disengaged. He did not visit E.H. in daycare.
Further, E.H. is developmentally delayed. The trial court had credible evidence and was not
plainly wrong when it ruled that termination was in E.H.’s best interests.
We need not reach appellant’s contention that the trial court had insufficient evidence to
make the abuse and neglect finding to terminate pursuant to Code § 16.1-283(B). Appellate
courts “decid[e] cases ‘on the best and narrowest ground available.’” McGhee v.
Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010). “We have previously
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upheld terminations under both . . . as well as under one or either of the individual subsections.”
Winslow, 40 Va. App. at 563, 580 S.E.2d at 466. Unlike subsection (B), a finding of abuse and
neglect is not a requirement under (C)(2). Accordingly, Code § 16.1-283(C)(2) speaks
“retrospectively”-the focus of the inquiry is whether “the parent . . . ‘ha[s] been []willing or
[]able within a reasonable period of time . . .’ to ‘remedy substantially’ the conditions which led
to the foster care placement.” Id. at 562-63, 580 S.E.2d at 466. Witness testimony demonstrated
that appellant could not provide E.H. with “appropriate care and attention,” “stability,” and could
not meet all of her needs. Appellant could not parent E.H. appropriately when Hansford’s
mental health issues manifested. Although he could financially provide for E.H., appellant did
not create a stable environment for E.H. because he remained in a relationship with Hansford and
his housing situation was constantly in flux. In addition, appellant participated in some services,
refused to participate in others, and then disengaged from services he did participate in.
The trial court had credible evidence and was not plainly wrong when it relied on these
circumstances to justify its findings. Because the evidence was sufficient to uphold termination
under (C)(2), we need not address whether subsection (B) was satisfied.
C. THE TRIAL COURT DID NOT ERR IN FINDING THAT DCHS PROVIDED REASONABLE AND
APPROPRIATE SERVICES TO APPELLANT.
Appellant next argues that he was not provided adequate services pursuant to Code
§ 16.1-283(B) and (C). Both Code § 16.1-283(B) and (C) state that the “[trial] court shall take
into consideration the efforts made to rehabilitate the parent or parents by any . . . agencies prior
to the child’s initial placement in foster care.” (Emphasis added). Subsection (B) “does not
require that [DCHS] offer any services to a parent before requesting termination of the parent’s
rights.” Farrell, 59 Va. App. at 408-09, 719 S.E.2d at 345. “Subsection (C) . . . require[s]
provision of [reasonable and appropriate] rehabilitative services before termination because they
do not begin with a prior finding of abuse or neglect.” Eaton, 66 Va. App. at 329, 785 S.E.2d at
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237-38 (quoting Farrell, 59 Va. App. at 409, 719 S.E.2d at 346). It is important to note that the
trial court must make these determinations based upon clear and convincing evidence. Toms, 46
Va. App. at 275, 616 S.E.2d at 774.
Appellant cites Thach v. Arlington Cty., 63 Va. App. 157, 754 S.E.2d 922, in asserting
that DCHS did not provide adequate services. In Thach, allegations of abuse and conditions
involved Thach (the child’s biological mother). The issue was whether Mendoza (the child’s
biological father) was required to remedy those conditions “if he was not the cause of those
conditions or living in the home when the conditions occurred.” Id. at 163, 754 S.E.2d at 925.
The Department of Human Services’ (DHS)
primary focus was on providing Thach with services . . . [, and]
DHS’s only recommendations for Mendoza were to complete
parenting classes and participate in home-based services. DHS
was also concerned that Mendoza, because of his lack of
awareness with respect to Thach’s limitations, was unable to
protect [the child] from neglect.
Id. at 171-72, 754 S.E.2d at 929.
This Court noted that although Mendoza did not make “substantial progress” within the
twelve-month window, “significant progress” was made. Id. at 172, 754 S.E.2d at 929. In
addition, in Thach, this Court noted that services were not offered to Mendoza until the child was
in foster care for eleven months. This Court emphasized that services were offered “one month
shy of the expiration of the statutory period,” which this Court believed was an underlying factor
for the trial court’s decision to delay the termination hearing. This Court found that Mendoza
completed parenting classes, the evaluation, and began home-based services and that DHS
expressed “no concerns about Mendoza’s ability to care for [the child] on his own.” Id. This
Court then reversed the trial court’s termination of Mendoza’s parental rights, finding the trial
court did not have clear and convincing evidence to support its determination. Id. at 173, 754
S.E.2d at 930. The trial court further found that Mendoza provided a “satisfactory home for [the
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child’s] younger brother, and the neglectful parent had been removed from the equation.” Id. It
necessarily follows that Thach is distinguishable. Here, the trial court denied appellant
additional time to correct his shortcomings and recognized that services were provided much
earlier than those provided to Mendoza. Finally, the trial court further found that appellant did
not demonstrate the relative progress accomplished by Mendoza in the Thach case. Even more
significant, DCHS remained concerned about appellant’s ability to parent.
Pre-removal efforts consisted of DCHS receiving reports regarding Hansford. DCHS
undertook an investigation. In light of the reports, its investigation, and the age of E.H., DCHS
removed E.H. from Hansford’s care.
Post-removal efforts, pursuant to Code § 16.1-283(C), included providing appellant with
case management services, family engagement services, referrals, follow-up services, a parental
fitness evaluation, the Fathers In Touch program, visitation, and parenting education. He
received vocational services and housing assistance through other entities. Dr. Mansaray
recommended: an individual parenting coach, substance abuse treatment, and individual
counseling. Appellant refused to undergo individual counseling, marital counseling, and
substance abuse-related services. Appellant took issue with not being offered services
recommended by Dr. Mansaray in addition to vocational and housing services. While DCHS
provided him and Hansford shared parenting coaches, it did not offer those other services
because appellant indicated he did not need them, he did not want them, or that he was receiving
them from other agencies. Appellant disengaged during visitations which is where the parenting
coaching occurred. DCHS “is not required ‘to force its services upon an unwilling or
disinterested parent.’” Logan, 13 Va. App. at 130, 409 S.E.2d at 463 (quoting Barkey v.
Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986)). The trial court generally
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noted that DCHS met the requirements of the statutes. Thus, the trial court implicitly found that
DCHS provided “reasonable and adequate” services.
The trial court had credible evidence and was not plainly wrong in its determination.
CONCLUSION
The trial court did not abuse its discretion when it admitted Hansford’s assessment. If it
did, the error was harmless. Further, appellant’s due process rights were not violated because the
trial court ruled consistent with any applicable due process requirements. The trial court applied
the correct evidentiary standards when terminating appellant’s parental rights, and its
conclusions were supported by credible evidence and were not plainly wrong. Furthermore,
DCHS was not required to provide appellant services prior to E.H.’s placement in foster care.
Finally, regarding the services that were provided to appellant while E.H. was in foster care, the
trial court had credible evidence to support its finding and was not plainly wrong in its
determination. Thus, we affirm the trial court.
Affirmed.
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