Arthur Barnett v. Richmond Department of Social Services ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alston and Senior Judge Coleman
ARTHUR BARNETT
v. Record No. 2400-11-2
RICHMOND DEPARTMENT OF SOCIAL SERVICES
MEMORANDUM OPINION *
PER CURIAM
ARTHUR BARNETT JUNE 12, 2012
v. Record No. 2401-11-2
RICHMOND DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
(Robert D. Shrader, Jr.; Steingold and Shrader, PLC, on brief), for
appellant.
(Shunda T. Giles, Senior Assistant City Attorney; Marc Yeaker,
Guardian ad litem for the minor children, on brief), for appellee.
The trial court terminated the residual parental rights of Arthur Barnett, father, to his
children, M.B. and A.B., pursuant to Code § 16.1-283(C)(2) and approved foster care plans with a
goal of adoption. On appeal of these decisions, father challenges the sufficiency of the evidence to
support the terminations. Upon reviewing the record and briefs of the parties, we conclude these
appeals are without merit. Accordingly, we summarily affirm the decisions of the trial court. See
Rule 5A:27.
On appeal, we view the evidence in the “‘light most favorable’ to the prevailing party in the
circuit court and grant to that party the benefit of ‘all reasonable inferences fairly deducible
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom.’” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 262, 616 S.E.2d 765, 767
(2005) (quoting Logan v. Fairfax Cnty. Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d
460, 463 (1991)). When reviewing a decision to terminate parental rights, we presume the circuit
court “‘thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests.’” Id. at 265-66, 616 S.E.2d at 769 (quoting Fields
v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)). “The trial
court’s judgment, ‘when based on evidence heard ore tenus, will not be disturbed on appeal unless
plainly wrong or without evidence to support it.’” Id. at 266, 616 S.E.2d at 769 (quoting Logan, 13
Va. App. at 128, 409 S.E.2d at 463 (citation omitted)). “In its capacity as factfinder, therefore, the
circuit court retains ‘broad discretion in making the decisions necessary to guard and to foster a
child’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990)).
M.B. was born on August 8, 2005, and A.B. was born on June 11, 2008. The Richmond
Department of Social Services (RDSS) became involved with the family when M.B. was born
addicted to heroin. RDSS offered services to the family to stabilize the children in the home.1
From 2005 to 2008, they provided services including substance abuse treatment, anger
management, couples counseling, housing services, and a parental assessment. M.B. was removed
from the home on July 21, 2006 due to ongoing domestic violence in the home. He was returned to
the home in March of 2008, and RDSS continued to provide services to the family.
A.B. was born exposed to methadone. Deborah Gudger, a foster care social worker, began
to work with the family on November 1, 2008. From 2008 to 2010, RDSS provided reunification
services and stabilization services to the family. Kareema Barnett, the mother of the children, had
1
Two other children resided in the family home who are not father’s biological children
and are not the subject of these appeals.
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recurring substance abuse issues. Gudger repeatedly spoke with father about the importance of
participating in the in-home services via Specialized Youth Services, but he did not follow through
with the appointments.
From April 1, 2010 to May 7, 2010, RDSS could not locate the family who had moved and
not informed RDSS of their new address. On May 7, 2010, father reported to RDSS incidents of
substance abuse and domestic violence in the home. On May 8, 2010, father and mother had a
physical altercation during which mother bit father. Also on that date, a child in the home (that
child is not the subject of this proceeding) obtained a knife and cut his mother during the fight. The
child told a RDSS worker that father told him to get the knife because mother had father “pinned
down” and she was choking father. Father obtained a temporary protective order against mother.
In May 2010, the Child Protective Services Hotline received a complaint that father
knowingly left the children alone with their intoxicated mother. Gudger visited the school of M.B.,
and she reported M.B. had an increase in enuresis at school and he displayed aggressive and deviant
behaviors toward his peers. The school recommended a psychological evaluation of M.B. because
of an incident involving a knife and because the five-year-old child had exhibited other
self-injurious behaviors. Father failed to follow through with the evaluation, and he failed to take
M.B. to any scheduled appointments at Children’s Hospital.
At almost 10:00 p.m. on May 12, 2010, employees of RDSS attempted to conduct a child
welfare check at the home and no one answered the door. Also in May 2010, the juvenile and
domestic relations district court entered an order transferring custody of M.B. to RDSS based on a
finding that he was abused and neglected. Father, mother, and the children fled to Hopewell,
Virginia and failed to appear at the subsequent preliminary removal hearing. Later that month,
M.B. was removed from the home and placed in foster care. M.B. has been diagnosed with
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post-traumatic stress disorder and mood disorder, and he has exhibited several high-risk and
harmful behaviors. These behaviors have decreased over the time he has been in foster care.
A.B. was almost two years old when she went into foster care. She initially exhibited
“aggressive” actions and some sexually inappropriate behaviors. She was also non-verbal.
However, over time, she has become less aggressive and more verbal. A.B. has bonded with her
foster family and, for the most part, interacts appropriately with her peers.
Initially, the foster care plan had concurrent goals of return to home and placement with
relatives. The goal of return to home could have been achieved if father completed all of the service
referrals. Father completed the parental assessment and anger management classes. At the time of
the trial court hearing, his substance abuse treatment was “ongoing” and he had started a domestic
violence course. Father was also incarcerated from about July 15, 2010 to mid-November 2010 for
the forgery of public records and driving under the influence.
By December 2010, because father had not fully cooperated with services, a new foster care
plan was filed with the goal of adoption. RDSS also filed petitions to terminate father’s parental
rights. Gudger testified father’s “behaviors do not demonstrate that he had fully comprehended,
understood the skills that were being offered to him” to provide for the safety of his children. She
stated he had not demonstrated he could protect his children and ensure their needs were met.
Although father completed anger management classes in May 2011, the police reported to
the family’s residence in June 2011 for a domestic disturbance call. Father and mother had engaged
in a physical altercation, father’s head was bleeding, and mother accused father of choking her and
punching her in the mouth. Mother was arrested for aggravated assault and drug possession.
Laurel Purchase, the owner of the Behavioral Awareness Center and a licensed clinical
social worker, worked with father in 2006 and in 2011. In 2011, she performed a parental
assessment on father. She stated father had active addictions during the marriage to mother and he
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and mother enabled each other. Purchase stated father believes he is a good parent and he blames
mother for all of the problems they have had in the past and in the present. At the time of the
hearing, father and mother resided at the residence of father’s father.
Purchase testified she was “struck by the similarities” between father’s current situation and
his situation when the children were first removed in 2006. In 2006, father had alcohol abuse issues
and received treatment for that condition. Four years later, he was again in substance abuse
treatment. Father completed anger management and parenting classes in 2006. In 2011, he was
ordered to complete parenting and domestic violence classes. After the 2006 removal, the children
were returned home to the parents and received in-home services, but they were again removed.
Purchase testified “[t]he one clear factor is that drugs and alcohol are a constant theme [in the family
home] combined with fighting.” Purchase testified that father does not believe he is responsible for
the children being removed from the home and until he accepts responsibility for not keeping the
children safe, “nothing will change.” She stated, “Since the situation had not changed in the past
four years, it is unlikely to change in the future.” Purchase did not recommend any additional
services be put in place for the family.
The guardian ad litem for the children opined that it is in the best interests of the children
that father’s parental rights be terminated, stating that the children’s issues are improving while in
foster care. The guardian ad litem also noted that despite the years of RDSS’s involvement with the
family, the family was “just stuck” and continued to have the same concerns they previously
addressed.
The trial court terminated father’s parental rights to M.B. and A.B. and approved the goal of
adoption for the children. Father appeals those decisions.
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Pursuant to Code § 16.1-283(C)(2), a parent’s residual parental rights “of a child placed in
foster care . . . 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
[t]he parent . . ., without good cause, ha[s] 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.
In determining what is in the best interests of a child, this Court has stated:
a court must evaluate and consider many factors, including the age
and physical and mental condition of the child or children; the age
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.
Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).
The evidence showed that, despite the efforts of RDSS, father had been unwilling or unable
to remedy substantially the conditions that led to and required the continuation of the children’s
foster care placement. By the time of the trial court hearing, the children had been in foster care for
sixteen months. The older child had also been in foster care from July 2006 to March 2008. In
addition, RDSS had worked with the family since 2005. Father previously completed parenting,
anger management, substance abuse, and counseling services, yet in 2010, he was ordered to repeat
many of these same services. Even after father completed many of the services for a second time,
there were continued issues of domestic violence and substance abuse in the family home. In
addition, the children exhibited disturbing and aggressive behaviors. However, their behavior and
emotional well-being has improved since they have been in foster care. Moreover, father did not
accept any responsibility for the children being removed from the home. A social worker testified
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that she would not recommend any further services for father, stating that the family situation was
unlikely to change in the future as it had remained unchanged since 2006, despite the efforts of
RDSS.
“‘[P]ast actions and relationships over a meaningful period serve as good indicators of what
the future may be expected to hold.’” Winfield v. Urquhart, 25 Va. App. 688, 695-96, 492 S.E.2d
464, 467 (1997) (quoting Linkous v. Kingery, 10 Va. App. 45, 46, 390 S.E.2d 188, 194 (1990)). In
addition, decisions to terminate parental rights under Code § 16.1-283(C)
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. 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 [or she] has
been offered rehabilitation services.
Toms, 46 Va. App. at 271, 616 S.E.2d at 772.
We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and
irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883, 407
S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Pub. Welfare of Richmond, 231 Va. 277, 280,
343 S.E.2d 70, 72 (1986)). However, “[i]t 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.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540,
394 S.E.2d 492, 495 (1990).
Based upon the foregoing, the trial court did not err in changing the goals to adoption,
finding termination was in the best interests of the children, and terminating father’s parental rights
pursuant to Code § 16.1-283(C)(2). Accordingly, the trial court’s decisions are affirmed.
Affirmed.
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