Willie J. Cannon, Jr. v. Chesterfield-Colonial Heights Department of Social Services ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Lorish
UNPUBLISHED
WILLIE J. CANNON, JR.
MEMORANDUM OPINION* BY
v. Record No. 0344-22-2 JUDGE CLIFFORD L. ATHEY, JR.
FEBRUARY 28, 2023
CHESTERFIELD-COLONIAL HEIGHTS
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Lynn S. Brice, Judge
(Mark Englisby; Bourdow, Bowen & Ellis, on brief), for appellant.
Appellant submitting on brief.
(Michael S. J. Chernau, Senior Deputy County Attorney; Joshua
Farmer, Guardian ad litem for the minor children; Farmer Legal,
PLLC, on brief), for appellee. Appellee and Guardian ad litem
submitting on brief.
Willie Cannon, Jr. (“father”) appeals orders from the Circuit Court of Chesterfield County
(“circuit court”) terminating his parental rights in two children, S.C. and D.C. Father contends that
the circuit court abused its discretion by denying his motion for a continuance on the morning of the
final hearing in the circuit court. Father also assigns error to the circuit court’s finding that there
was sufficient evidence to terminate his parental rights. We disagree and affirm the circuit court’s
decision to terminate his parental rights. Both parties waive oral argument on appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND1
Father and Channa Huffman-Davadi (“mother”) are the biological parents of their minor
children, S.C. and D.C. The Chesterfield-Colonial Heights Department of Social Services (“DSS”)
became involved with the family after D.C. was born substance exposed in August of 2020.
DSS further learned that S.C., who was then thirteen months old, had also been previously born
substance exposed. Mother reported that she was no longer in an intimate relationship with
father.
By September of 2020, DSS had sought to remove S.C. and D.C. from both parents’
custody because DSS had been unable to locate father and was concerned about mother’s
“unstable living conditions, active substance use, and refused drug screens.” At the urging of
DSS, the Chesterfield County Juvenile and Domestic Relations District Court (the “JDR court”)
entered emergency and preliminary removal orders related to the children. The JDR court
subsequently adjudicated the children abused or neglected and entered dispositional orders
reflecting that finding.
The children were then placed in foster care, and DSS established requirements father
had to meet before he could be reunited with S.C. and D.C. For example, DSS required father to
obtain and maintain employment and safe, stable housing. Father was also referred for a
psychological examination and parent support services. He was required to submit to random
drug screens and “not engage in criminal activity.” DSS also offered father supervised visitation,
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues father has raised. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
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provided he complied with their substance abuse recommendations, and maintained contact with
DSS by notifying them of any changes of address, employment, or phone number.
Father initially tested negative for illegal drugs on September 21, 2020, October 13,
2020, and November 20, 2020, before refusing to be tested on February 12, 2021. Father then
tested positive for marijuana on March 1, 2021, and again in April of 2021. Also, in March of
2021, father and mother were evicted from a motel where they had been staying as part of a
homeless housing program. The hotel manager had expressed concerns about mother’s
substance abuse, domestic violence between mother and father, and the cleanliness of the room.
In addition to being concerned about father’s lack of stable housing, DSS became
concerned that father had still failed to secure gainful employment. Although father claimed he
was self-employed, working “with cars,” he provided DSS no verification or documentation of
his employment or income. DSS also received reports that father was “selling illicit substances.”
Father was subsequently charged with possession of Schedule I/II drugs in April of 2021 but did
not inform DSS of the new criminal charge.
As a result, in June of 2021, DSS petitioned the JDR court to convert the goal for the
children to foster care leading to adoption. Then, father tested positive for marijuana at
subsequent hearings held on July 26, 2021, and on September 24, 2021. Father also tested
positive for cocaine and methamphetamine. When the JDR court tested father again on October
1, 2021, he continued to test positive for marijuana.
In light of the above and considering father’s overall lack of progress, DSS “paused”
father’s visitation with the children because his deficiencies became so acute. Although initially
father had participated regularly in supervised visitation, his participation became less consistent
over time. To his credit, father completed the required psychological evaluation, but failed to
attend the feedback session or follow through with the psychologist’s recommendations. Father
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recommenced working with parent support services in September of 2020 but was discharged
again by January of 2021 due to a “lack of engagement, commitment to services and a lack of
progress.”
To provide father with “another opportunity to achieve the goals of the foster care plan,”
DSS reinstated his parent support services again in June of 2021, however, the services ended
after DSS received a report of father’s continued “lack of engagement.” The JDR court
subsequently approved changing the foster care plan goal to adoption and, several months later,
terminated father’s parental rights to S.C. and D.C.2 Father appealed the JDR court’s termination
orders to the circuit court.
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.” Although father had
obtained a job by the time of the circuit court hearing, he was still residing in a motel room and
had not been able to secure more stable housing. Father’s substance abuse remained a concern at
the hearing as he continued to test positive for drugs and admitted to using marijuana.
On January 18, 2022, father’s attorney moved to withdraw from the case for “health
reasons.” Father’s attorney advised the circuit court that she had spoken with an attorney who
was “willing and able to accept the appointment as counsel.” Her motion to withdraw indicated
that father’s new attorney would be “available on the trial date, January 28, 2022, at 10:00 a.m.”
2
The JDR court also terminated mother’s parental rights to S.C. and D.C. Mother
appealed the JDR court’s rulings to the circuit court. The circuit court dismissed her appeal after
she failed to appear for the hearing.
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Her motion to withdraw also indicated that a copy of the motion had been mailed to all parties,
including the proposed new attorney. On January 20, 2022, the trial court entered an order
permitting the withdrawal of father’s then attorney and substituting father’s new counsel as the
attorney of record in the case.
On January 28, 2022, the date set for trial in the circuit court, father’s new counsel moved
for a continuance based solely on his representation that he had just met with father that morning
and had not yet secured prior counsel’s file. The circuit court denied the motion for continuance,
finding that father’s substituted counsel had “sufficient time” before the trial to meet with father,
the matter had been pending “for a long time,” and a continuance was not in the children’s best
interests. The circuit court did offer to recess so that father and his new counsel had “additional
time to meet . . . and prepare further if necessary,” but father “declined” the circuit court’s offer
for a recess and stated that he was “ready to proceed.” At the conclusion of the hearing, by final
orders, the circuit court terminated father’s parental rights to S.C. and D.C. pursuant to Code
§ 16.1-283(C)(2). Father appealed.
II. ANALYSIS
A. Standard of Review
“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)).
“On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)
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(alteration in original) (quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123,
128 (1991)). “Where, as here, the court hears the evidence ore tenus, its finding is entitled to
great weight and will not be disturbed on appeal unless plainly wrong or without evidence to
support it.” Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011)
(quoting Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).
B. The circuit court did not err by denying the continuance request.
Father contends that the circuit court abused its discretion by denying his motion for a
continuance. We disagree.
When denying the requested continuance, the circuit court found that “the matter had
been pending for a long time, and it was not in the children’s best interests for the case to be
continued.” The litigation began in the JDR court in September of 2020, and the children had
been in foster care for approximately sixteen months by the time of the circuit court hearing. “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 Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 322 (2013) (alteration in original)
(quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)). “Given
the length of time the case had been ongoing, it was not beyond the pale for the trial court to
believe that even a short continuance had the potential to be harmful to the child[ren] while
providing little in the way of benefit to the parties or the court.” Geouge v. Traylor, 68 Va. App.
343, 375 n.13 (2017).
Moreover, to establish the “necessary prejudice,” father “must establish that the decision
to deny [him] a continuance prevented [him] from presenting [his] case or otherwise caused
[him] to lose the case.” Id. at 374. Here, father has failed in that regard, in part, because the
record reflects that father was both represented by counsel and testified at the hearing after
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declining the opportunity for a recess. The trial court’s “ultimate ruling against [father] was the
result of its determination of the facts of the case and not the result of the denial of [his]
continuance request.” Id. Father’s history of substance abuse, lack of engagement in services,
lack of progress toward stable employment and a stable shelter for the children would have
existed whenever the trial would have occurred because the deficits in his case “were not caused
or exacerbated by the trial court’s denial of the requested continuance.” Id.
Thus, considering the totality of the circumstances in the case and since father failed to
“demonstrate the necessary prejudice,” the circuit court did not abuse its discretion in denying
the requested continuance. Id. at 375.
C. The circuit court did not err by terminating father’s parental rights.
Father argues that the circuit court erred in finding the evidence sufficient to support the
termination of his parental rights under Code § 16.1-283(C)(2). We disagree.
The circuit court terminated father’s parental rights under Code § 16.1-283(C)(2), which
authorizes a court to 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.
“[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.” Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539, 552 (2018)
(alteration in original) (quoting Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271
(2005)).
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Here, despite the numerous services offered by DSS, father never maintained consistent
progress in remedying the conditions that caused the need for foster care. Father did not comply
with many of the services, including the parent support services. Although father obtained a job
by the time of the circuit court hearing, he was still living in a motel room unsuitable for the
minor children. Despite his stated intention to move to a two-bedroom apartment, father had not
accomplished this during the over sixteen-month period before the trial date in circuit court.
Moreover, father’s abuse of several illegal substances remained a valid concern for the circuit
court.
Additionally, the children exhibited positive developments while in foster care. S.C.
gained weight, benefitted from therapy, and the child’s mental and physical development was
age appropriate. Despite experiencing withdrawal symptoms for four months after being born,
D.C. was also “developmentally on target” at the time of the circuit court hearing.
“When addressing matters concerning a child, including the termination of a parent’s
residual parental rights, the paramount consideration of a trial court is the child’s best interests.”
Tackett, 62 Va. App. at 319 (quoting Logan, 13 Va. App. at 128). Here, the record supports the
circuit court’s finding that it was in the children’s best interests to terminate father’s parental
rights, and the evidence was sufficient to support termination under Code § 16.1-283(C)(2).
III. CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
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Chaney, J., dissenting.
The circuit court ordered the involuntary termination of Willie Cannon’s parental rights to
two of his minor children eight days after the circuit court (1) allowed Mr. Cannon’s
court-appointed counsel to withdraw from the representation due to health reasons and
(2) appointed substitute counsel to represent Mr. Cannon, an indigent parent. The circuit court
abused its discretion and seriously imperiled the just determination of the parental rights cases by
denying Mr. Cannon’s continuance motion and forcing him to trial when—through no fault of
Mr. Cannon—his court-appointed attorney was blatantly unprepared to effectively represent him.
Therefore, I must dissent from the majority’s opinion affirming the circuit court’s orders denying
Mr. Cannon’s continuance motion and involuntarily terminating his parental rights.
A trial court can abuse its discretion in three principal ways:
[1] when a relevant factor that should have been given significant
weight is not considered; [2] when an irrelevant or improper factor is
considered and given significant weight; and [3] when all proper
factors, and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of judgment.
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011) (quoting Kern v.
TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). Additionally, a trial court “by definition
abuses its discretion when it makes an error of law.” Porter v. Commonwealth, 276 Va. 203, 260
(2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).
“In considering a request for a continuance, the court is to consider all the circumstances of
the case.” Gray v. Commonwealth, 16 Va. App. 513, 517 (1993) (quoting Venable v. Venable, 2
Va. App. 178, 181 (1986)). “[I]f there is no sufficient reason to induce the belief that the alleged
ground of the motion is feigned, a continuance should be granted, rather than to seriously imperil
the just determination of the cause by refusing it.” Myers v. Trice, 86 Va. 835, 842 (1890).
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“The decision to grant a motion for a continuance is within the sound discretion of the
circuit court and must be considered [on appeal] in view of the circumstances unique to each case.”
Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007). “The circuit court’s
ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of
discretion and resulting prejudice to the movant.” Id. “Additionally, in the application of these
principles, . . . when a circuit court’s refusal to grant a continuance ‘seriously imperil[s] the just
determination of the cause,’ the judgment must be reversed.” Id. (second alteration in original)
(emphasis added) (quoting Myers, 86 Va. at 842). Under the holdings in Haugen and Myers, it is
inherently prejudicial to deny a continuance motion when doing so seriously imperils the just
determination of the cause. Thus, contrary to the majority’s opinion, an appellant challenging the
denial of a continuance motion is not required to make an additional showing of prejudice where, as
here, the trial court’s refusal to grant a continuance seriously imperiled the just determination of the
cause.
Eight days before the scheduled trial date, on January 20, 2022, the circuit court entered an
order granting Mr. Cannon’s court-appointed attorney’s motion to withdraw. Without hearing or
further inquiry, the circuit court appointed the attorney identified in the motion as an attorney who
had agreed to the appointment.3
On the scheduled trial date, Mr. Cannon’s newly-appointed attorney moved to continue the
trial because (i) he had not received Mr. Cannon’s case file from Mr. Cannon’s former
3
The circuit court’s order appointing substitute counsel for Mr. Cannon directed the Clerk
of court to mail a copy of the substitution order to Mr. Cannon at a specified address in Richmond.
The appellate record shows that a mailing to Mr. Cannon at that specified address from the Clerk of
court was postmarked on January 25, 2022, and subsequently marked “return to sender.” This
indicates that Mr. Cannon received no notice that the circuit court had appointed new counsel to
represent him. However, because the information related to this lack of notice is not included in the
statement of facts, this information is not considered on appeal. See Smith v. Commonwealth, 59
Va. App. 710, 722 (2012).
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court-appointed counsel and (ii) his first contact with Mr. Cannon had occurred that morning. In
denying Mr. Cannon’s motion to continue, the circuit court found—with no apparent factual basis—
that Mr. Cannon’s new counsel had sufficient time to meet with him prior to the trial date. The
circuit court also stated that the matter had been pending for a long time, and it was not in the
children’s best interests for the case to be continued.
The circuit court abused its discretion in denying Mr. Cannon’s continuance motion by
failing to give appropriate weight to the gravity of the termination proceeding and to the importance
of adequate preparation by Mr. Cannon’s counsel. “The termination of parental rights is a grave,
drastic, and irreversible action.” Id. at 34-35 (quoting Lowe v. Dep’t of Pub. Welfare of the City
of Richmond, 231 Va. 277, 280 (1986)). When a court orders the termination of parental rights,
the parent is divested of all legal relations to the child “and the parent has no legal right to even
communicate [with] or visit that child.” Id. at 34. “[T]he ties between the parent and child are
severed forever, and the parent becomes ‘a legal stranger to the child.’” Lowe, 231 Va. at 280(quoting Shank v. Dep’t Soc. Servs., 217 Va. 506, 509 (1976)). Given the gravity of
involuntarily terminating parental rights, a trial court should not deny a parent’s motion to
continue the trial on the termination petitions when, as here, the parent’s recently-appointed
counsel is obviously unprepared to competently and effectively represent him. Minimally
adequate preparation to represent a parent at such a momentous trial includes reviewing the case
file of the parent’s former counsel, if any, and meeting with the parent before the trial date.
Given that Mr. Cannon’s new counsel had an insufficient opportunity to satisfy these
prerequisites for minimally adequate preparation, the just adjudication of the petitions was
seriously imperiled. See Gilchrist v. Commonwealth, 227 Va. 540, 546 (1984) (reversing trial
court’s order denying continuance motion where “counsel were not afforded a reasonable time to
investigate and prepare the trial of a serious, complex case”). No child’s best interests are served
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by denying a continuance of a parental rights termination trial under these circumstances. And
the circuit court’s offer to briefly recess the proceedings to allow Mr. Cannon’s new counsel to
confer with him did not provide a reasonable opportunity for proper preparation for the
momentous trial.4 See Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 825 (1993)
(recognizing that a parent has a constitutional right to effective assistance of counsel at
proceedings on petitions to involuntarily terminate parental rights).
The circuit court also abused its discretion by failing to give appropriate weight to the fact
that neither DSS nor the GAL objected to Mr. Cannon’s continuance motion. The lack of
objections to the continuance request indicates that granting a continuance would not prejudice
either DSS or the children.5 When this lack of prejudice is balanced against the injustice suffered by
Mr. Cannon from being represented by obviously unprepared counsel in such a gravely serious
matter, it is apparent that the circuit court’s denial of the continuance request constitutes a clear
error in judgment.
The circuit court also abused its discretion by denying Mr. Cannon’s continuance motion
based on its finding that the matter had been pending for a long time. The record shows that the
case had not been pending in the circuit court for an excessive period of time when the trial court
4
Mr. Cannon did not waive his right to appeal the denial of his motion to continue the
trial when his new attorney declined the circuit court’s offer for a brief recess. Mr. Cannon’s
recently appointed attorney clearly informed the circuit court that he was unprepared for trial
because he had yet to receive Mr. Cannon’s case file from his prior court-appointed counsel.
These proffers were not contradicted by Mr. Cannon’s counsel’s subsequent statement that he
was ready to proceed after the circuit court denied his motion to continue the trial and offered a
brief recess instead. In context, Mr. Cannon’s counsel’s statement that he was ready to proceed
is reasonably understood to mean that he was as ready as he could be given the court’s refusal to
continue the trial date and the obvious futility of trying to prepare for trial during a recess when
he still did not have Mr. Cannon’s case file from his former counsel.
5
No objections to Mr. Cannon’s continuance motion are recorded in the statement of
facts that was filed in lieu of a transcript. On appeal, the statement of facts signed by the trial
judge is presumed to be an accurate and complete recitation of the incidents of trial. See Rule
5A:8(c); Smith, 59 Va. App. at 722.
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denied Mr. Cannon’s continuance motion. The case was docketed in the circuit court after
Mr. Cannon filed his notice of appeal for de novo trial on October 1, 2021, and the continuance
motion was denied on January 28, 2022, the original trial date. There were no prior continuances of
the trial. Moreover, a continuance of the trial date for a reasonable period of time to permit
Mr. Cannon’s newly-appointed counsel to prepare would not unduly delay the termination
proceedings.
The circuit court’s denial of Mr. Cannon’s continuance motion was an abuse of discretion
that seriously imperiled the just adjudication of the petitions to involuntarily terminate
Mr. Cannon’s parental rights. Therefore, as required by our Supreme Court’s holdings in Haugen
and Myers, I would reverse the circuit court’s judgment denying Mr. Cannon’s continuance
motion, vacate the orders involuntarily terminating Mr. Cannon’s parental rights, and remand for
a new trial.
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