Hank Smith, Jr. v. Harrisonburg Rockingham Social Services District ( 2021 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges O’Brien, Callins and Senior Judge Annunziata
HANK SMITH, JR.
MEMORANDUM OPINION*
v. Record No. 0541-21-3 PER CURIAM
NOVEMBER 16, 2021
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
(Tania L. Perez Rodriguez; John Elledge & Associates, on brief), for
appellant. Appellant submitting on brief.
(Sheila K. Paladino, Assistant County Attorney; Lynn Svonavec,
Guardian ad litem for the minor child, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Hank Smith, Jr. (father) appeals an order terminating his parental rights. Father argues that
the circuit court erred by denying his motion to dismiss the Harrisonburg Rockingham Social
Services District’s (HRSSD) petition to terminate his parental rights. Father contends that “by
allowing [HRSSD] to terminate his parental rights when he had a criminal matter pending [the
circuit court] deprived [f]ather of due process and equal protection of the law.” Father also asserts
that the circuit court erred in finding that HRSSD “presented clear and convincing evidence that
terminating [f]ather’s parental rights was appropriate and in the child’s best interest pursuant to Va.
Code Ann. § 16.1-283.” Upon reviewing the record and briefs of the parties, we conclude that the
circuit court did not err. Accordingly, we affirm the decision of the circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
“On appeal from the termination of parental rights, this Court is required to review the
evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep’t
of Hum. Servs., 63 Va. App. 157, 168 (2014)). Here, the Department was the prevailing party.
Father and Matraca Quinones (mother) are the biological parents of L.C. and T.C.2
HRSSD initially became involved with mother and one of her older children in 2012 due to
issues with illegal drugs and inadequate shelter. For years thereafter, HRSSD remained involved
with mother and her family because of ongoing concerns about substance abuse, housing,
hygiene, and abuse. HRSSD offered mother housing assistance, in-home parenting services, and
foster care prevention services, as well as referrals for services from Infant Toddler Connection
for L.C. and T.C.
In 2017, father lived with his girlfriend and her then-thirteen-year-old son in the
Chesapeake/Norfolk area.3 Father drove a truck and was away from home two weeks out of
every three weeks. Although father occasionally called L.C. and T.C., he did not regularly visit
them. In September 2017, L.C. and T.C. were supposed to visit father for two weeks. After
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant 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).
2
L.C. was born in 2014, and T.C. was born in 2015. Mother has other children who are
not the subject of this appeal. Mother signed a voluntary entrustment agreement for T.C., and
the Harrisonburg-Rockingham Juvenile and Domestic Relations District Court terminated her
parental rights to T.C.
3
When L.C. and T.C. entered foster care, father’s girlfriend was pregnant with father’s
child; she subsequently gave birth to a daughter.
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three or four days, father’s girlfriend called HRSSD, reporting that L.C.’s behaviors were
difficult to manage; mother picked up the children early.
In December 2017, HRSSD visited mother’s home, which was described as “a complete
disaster” because of its filth and clutter. HRSSD observed L.C. and T.C., who were three and
two years old, playing with razor blade refills and laundry detergent pods. HRSSD followed up
with several home visits and, on one occasion, found the home to be “extremely cold and without
heat.” Thereafter, HRSSD petitioned for a child protective order, which the
Harrisonburg-Rockingham Juvenile and Domestic Relations District Court (the JDR court)
entered on January 31, 2018. Mother tested positive for methamphetamine at the JDR court
hearing. The Department then requested that L.C. and T.C. submit to hair follicle screens to
assess their exposure, and T.C. tested positive for methamphetamine.4
On February 23, 2018, HRSSD placed L.C. and T.C. in foster care because of mother’s
drug use and protective order violations. The JDR court entered emergency and preliminary
removal orders. The JDR court subsequently adjudicated that the children were abused or
neglected and entered dispositional orders.
HRSSD arranged for father and his girlfriend to visit with L.C. and T.C. and investigated
father as a relative placement. HRSSD advised father that he would have to demonstrate that he
could provide a “stable, safe and nurturing environment” and cooperate with HRSSD. Father
assured HRSSD that he could modify his work schedule to be home every other weekend if the
Department placed the children with him. Father informed HRSSD that his girlfriend would care
for L.C. and T.C. while he was working, but he also explored childcare options and Head Start
programs at the Department’s request. HRSSD referred father to parenting education, but “[d]ue
to a cancellation of numerous visits,” he did not participate in parenting education. After
4
L.C.’s hair was too short to test.
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approving a foster care plan with relative placement as one of the goals, the JDR court scheduled
a permanency planning hearing for October 12, 2018.
On July 20, 2018, HRSSD began a trial home placement with L.C. and T.C. at father’s
home. HRSSD intended to transfer custody to father at the October 2018 permanency planning
hearing.
At approximately 10:00 p.m. on September 23, 2018, father took L.C. and T.C. to the
emergency room at DePaul Medical Center. Father reported that L.C. and T.C. were supposed to
be sleeping, but when he checked on them, he found them “fighting and choking each other.”
L.C. had a “[s]mall contusion” in the corner of his right eye and “mild petechiae” around both
eyes. T.C. also had “mild petechiae” around both eyes, mouth, and cheeks.
The next day, father brought L.C. and T.C. to Harrisonburg for a supervised visit with
mother, and the visitation supervisor noticed the children’s bruises. Father reported that the
children had been fighting. Afterwards, HRSSD met with father, his girlfriend, the guardian ad
litem, and other service providers to discuss the children’s welfare and available services.
HRSSD asked Norfolk Child Protective Services to investigate and referred father and his
girlfriend to a parenting coach/counselor. Citing “supervision concerns,” HRSSD decided not to
transfer custody to father and moved to continue the October permanency planning hearing.
On Monday, November 12, 2018, father and his girlfriend were on their way to take the
girlfriend’s daughter to Virginia Beach, while the girlfriend’s fourteen-year-old son stayed with
L.C. and T.C. Her son called to say that L.C. was unresponsive; 911 was called and emergency
personnel responded. Lifesaving measures were performed, but shortly upon his arrival at the
Children’s Hospital of the King’s Daughters, L.C. was pronounced dead.
After performing an autopsy, the medical examiner determined that L.C.’s cause of death
was blunt force trauma to the abdomen. Based on the reports that L.C. had had abdominal pain,
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nausea, and vomiting beginning on Friday, November 9, 2018, and continuing throughout the
weekend, the medical examiner concluded that L.C. was injured Friday night, “with the fatal
blows being delivered on the day of death.” The medical examiner opined that “death could not
have occurred hours after the final injuries were inflicted. A timeframe of minutes is more
likely.” The medical examiner also noted that L.C. had suffered from blunt force trauma to his
head, chest, and extremities, which was “consistent with abuse and neglect.” The medical
examiner identified “[b]etween 80 and 90 bruises” across L.C.’s face, jawline, chest, abdomen,
upper extremities, and back, along with additional bruises on his lower extremities. The bruises
were in “arrays of three or four, suggestive of grip marks and/or knuckle marks.” There were
“patterned injuries of the back suggesting a belt” and “repeated injury.”
A few hours after L.C.’s death, at approximately 1:00 a.m. on November 13, 2018, father
brought T.C. to the emergency room at DePaul Medical Center and reported that T.C. was
coughing, wheezing, and had a fever. Father informed the hospital personnel that T.C.’s brother
had died earlier that night “from vomiting.” The hospital personnel spoke with a child protective
services worker, who was “aware of” the situation and stated that T.C. was “safe to go home.”
After receiving medication, the hospital personnel determined that T.C. had “[n]o respiratory
distress,” discharged T.C., and provided father with “very strict return precautions.”
The Norfolk police and Norfolk Child Protective Services investigated L.C.’s death.5
Late in the afternoon on November 13, 2018, T.C. was taken to the Children’s Hospital of the
King’s Daughters for an evaluation, and it was noted that T.C. had bruises on his right cheek,
forehead, left shoulder, and lower back. T.C. was returned to foster care, and HRSSD no longer
5
Norfolk Child Protective Services also removed father’s and his girlfriend’s daughter
from their care.
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considered father as a relative placement. T.C. began participating in play therapy and anger
management to help him cope with and process the trauma he had experienced.
After L.C.’s death, father had “minimal contact and involvement” with HRSSD. Father,
his girlfriend, and her teenage son were charged criminally after L.C.’s death; father was charged
with felony homicide, child abuse/neglect, and child cruelty. Father was released on bond
pending trial on the charges. As part of the conditions of his bond, father had to reside in the
Chesapeake area and was barred from having contact with anyone under the age of eighteen. In
addition, the JDR court ordered father not to have “direct contact” with T.C. In early May 2020,
HRSSD confirmed that father was staying overnight at mother’s home, in the Harrisonburg area,
while her two young daughters were present.6 Thereafter, the JDR court amended its order and
prohibited father from having any contact, direct or indirect, with T.C.
On February 17, 2021, the JDR court entered orders approving the foster care goal of
adoption and terminating father’s parental rights to T.C. Father appealed the JDR court’s order
terminating his parental rights to the circuit court.
On April 30, 2021, the parties appeared before the circuit court. After hearing evidence
and arguments, the circuit court terminated father’s parental rights under Code § 16.1-283(C)(1),
(C)(2), and (E)(iv). This appeal followed.
ANALYSIS
Motion to Dismiss
Father argues that the circuit court erred in denying his motion to dismiss HRSSD’s
petition to terminate his parental rights. Father asserts that allowing HRSSD to terminate his
parental rights while his criminal case was pending “deprived [him] of due process and equal
6
Father was found to have violated the conditions of his bond, but because the local jail
had more than forty confirmed COVID-19 cases at the time, he was not incarcerated.
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protection of the law.” Specifically, father states that proceeding with the termination while his
criminal charges remained pending forced him “to choose between his right to remain silent or
present a case for the [circuit court] to determine whether his parental rights should be
terminated.”
The record does not include a timely filed transcript of the circuit court hearing. “The
transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the
trial court within 60 days after entry of the final judgment.” Rule 5A:8(a). The circuit court
entered its final order on April 30, 2021; therefore, the deadline for filing the transcript was June
29, 2021. Father filed the transcript for the circuit court hearing late on July 2, 2021.
Consequently, the transcript is not part of the record on appeal. Rule 5A:8.
We find that the transcript is indispensable to determining the first assignment of error on
appeal. “If . . . the transcript is indispensable to the determination of the case, then the
requirements for making the transcript a part of the record on appeal must be strictly adhered to.
This Court has no authority to make exceptions to the filing requirements set out in the Rules.”
Shiembob v. Shiembob, 55 Va. App. 234, 246 (2009) (quoting Turner v. Commonwealth, 2
Va. App. 96, 99 (1986)); see also Bay v. Commonwealth, 60 Va. App. 520, 528-29 (2012).
Father asserts that the circuit court erred by denying his motion to dismiss, which he made at the
beginning of the hearing. We are unable to review the arguments and ruling without a timely
filed transcript.
“The burden is upon the appellant to provide us with a record which substantiates the
claim of error. In the absence [of a sufficient record], we will not consider the point.” Robinson
v. Robinson, 50 Va. App. 189, 197 (2007) (quoting Jenkins v. Winchester Dep’t of Soc. Servs.,
12 Va. App. 1178, 1185 (1991)); see also Rule 5A:8(b)(4)(ii). We conclude that the transcript is
indispensable to resolving father’s first assignment of error.
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Termination of parental rights
Father also argues that the circuit court erred in finding that HRSSD presented sufficient
evidence to support the termination of his parental rights.
“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)
(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)).
The circuit court terminated father’s parental rights under Code § 16.1-283(C)(1), (C)(2),
and (E)(iv). A court may terminate the parental rights of a parent who “has subjected any child
to aggravated circumstances,” if it is in the best interest of the child. Code § 16.1-283(E)(iv)
(emphasis added). The statute defines “aggravated circumstances” as follows:
torture, chronic or severe abuse, or chronic or severe sexual abuse,
if the victim of such conduct was a child of the parent or a child
with whom the parent resided at the time such conduct occurred,
including the failure to protect such a child from such conduct,
which conduct or failure to protect: (i) evinces a wanton or
depraved indifference to human life, or (ii) has resulted in the
death of such a child or in serious bodily injury to such a child.
Code § 16.1-283(E).
Here, HRSSD presented evidence that in September 2018, father took L.C. and T.C. to
the hospital. Both L.C. and T.C. had bruises and “mild petechiae,” which the visitation
supervisor observed the following day. Father claimed that the then-four and three-year old
children had inflicted the injuries on one another.
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Less than two months later, L.C. died of blunt force trauma to the abdomen. During the
autopsy, the medical examiner found approximately one hundred bruises on L.C.’s face, jawline,
chest, abdomen, upper extremities, back, and lower extremities. The medical examiner opined
that the bruises and trauma to L.C.’s body were “consistent with abuse and neglect” and
indicated “repeated injury.”
Father argues that he was not L.C and T.C.’s primary caregiver; rather his girlfriend was.
The evidence, however, proved that father was home the weekend that L.C. died. By his own
account, father was present in the home and supervising the children two months earlier when he
took L.C. and T.C. to the hospital for other injuries. Considering the totality of the evidence
presented in the record on appeal, HRSSD proved that while in father’s custody, L.C. was
subjected to “aggravated circumstances,” because he had suffered “severe abuse” that caused his
death. Code § 16.1-283(E).
Code § 16.1-283(E)(iv) applies to “any” child who has been subject to aggravated
circumstances. Because L.C. was subjected to aggravated circumstances, Code
§ 16.1-283(E)(iv) also applies to T.C. Accordingly, the circuit court did not err in terminating
father’s parental rights to T.C. under Code § 16.1-283(E)(iv).
“When a trial court’s judgment is made on alternative grounds, we need only consider
whether any one of the alternatives is sufficient to sustain the judgment of the trial court, and if
so, we need not address the other grounds.” Kilby v. Culpeper Cnty. Dep’t of Soc. Servs., 55
Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46
Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of
Code § 16.1-283 and did not need to address termination of parental rights pursuant to another
subsection). Therefore, we do not consider whether the circuit court erred in terminating father’s
parental rights under Code § 16.1-283(C)(1) and (C)(2).
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CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
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