Toni Ann Tarantini v. Rockbridge County Department of Social Services ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClanahan and Senior Judge Coleman
Argued at Salem, Virginia
ANGELA TARANTINI
v. Record No. 1620-05-3
ROCKBRIDGE COUNTY
DEPARTMENT OF SOCIAL SERVICES MEMORANDUM OPINION* BY
JUDGE LARRY G. ELDER
TONI ANN TARANTINI MAY 9, 2006
v. Record No. 1666-05-3
ROCKBRIDGE COUNTY
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Michael S. Irvine, Judge
Rebecca A. Belew for Angela Tarantini.
Joshua O. Elrod (Mann Vita & Elrod, L.L.C., on brief), for Toni
Ann Tarantini.
Michael A. Groot (H. David Natkin; Robert B. Armstrong,
Guardian ad litem for minor child, on brief), for Rockbridge
County Department of Social Services.
In these related cases, Toni Ann Tarantini, mother of three-year-old D. (mother), and
Angela Tarantini, maternal grandmother of D. (grandmother), appeal the trial court’s order
terminating mother’s parental rights. Mother concedes she was not personally able to care for
the child but argues the evidence established both that the Department of Social Services (DSS)
failed to meet its burden of investigating placement with a family member and that her mother,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Angela, was a suitable custodian. As a result, she argues, the court’s termination of her parental
rights was an abuse of discretion because a suitable family placement existed. Grandmother’s
assignment of error is based solely on the court’s determination that she was not “an appropriate
family placement.” We hold DSS met its burden of investigating placement with a family
member and that the evidence supports the trial court’s conclusion that placement of D. with
grandmother was not appropriate. Thus, we hold the evidence supported the trial court’s
termination of mother’s parental rights, and we affirm.
I.
We view the evidence in the light most favorable to the prevailing party below and afford
the evidence all reasonable inferences fairly deducible therefrom. Logan v. Fairfax County
Dep’t of Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991). On review, we
presume the trial court “thoroughly weighed all the evidence, considered the statutory
requirements, and made its determination based on the child’s best interests.” Farley v. Farley, 9
Va. App. 326, 329, 387 S.E.2d 794, 796 (1990). We may not disturb the trial court’s judgment
unless it is plainly wrong or without evidence to support it. Logan, 13 Va. App. at 128, 409
S.E.2d at 462.
Code § 16.1-283 provides in relevant part as follows:
A. ....
Any order terminating residual parental rights shall be
accompanied by an order continuing or granting custody to a local
board of social services, to a licensed child-placing agency or the
granting of custody or guardianship to a relative or other interested
individual, subject to the provisions of subsection A1 of this
section. However, in such cases the court shall give consideration
to granting custody to relatives of the child, including
grandparents.
* * * * * * *
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A1. Any order transferring custody of the child to a relative or
other interested individual pursuant to subsection A of this section
shall be entered only upon a finding, based on a preponderance of
the evidence, that the relative or other interested individual is one
who, after an investigation as directed by the court, (i) is found by
the court to be willing and qualified to receive and care for the
child; (ii) is willing to have a positive, continuous relationship with
the child; (iii) is committed to providing a permanent, suitable
home for the child; and (iv) is willing and has the ability to protect
the child from abuse and neglect; and the order shall so state. The
court’s order transferring custody to a relative or other interested
individual should further provide, as appropriate, for any terms and
conditions which would promote the child’s interest and welfare.
In Logan, we interpreted this code section to require that, either prior to or in conjunction
with a termination of parental rights, “the Department has a duty to produce sufficient evidence
so that the court may properly determine whether there are relatives willing and suitable to take
custody of the child, and to consider such relatives in comparison to other placement options.”
13 Va. App. at 131, 409 S.E.2d at 465; see Hawthorne v. Smyth County Dep’t of Soc. Servs., 33
Va. App. 130, 138, 531 S.E.2d 639, 643 (2000) (holding “Logan and Sauer [v. Franklin County
Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 642 (1994),] remain good law
following the 1998 revision to Code § 16.1-283(A)”). Where a court “[gives] inadequate
consideration to placing [a child] in [a relative’s] custody as a reasonable alternative to the
termination of . . . parental rights,” the termination of parental rights must be reversed. Sauer, 18
Va. App. at 770, 446 S.E.2d at 640. As we noted subsequent to Logan, our holding in that case
was not “mean[t] to suggest that the Department has a duty in every case to investigate the home
of every relative of the child[], however remote, as a potential placement.” Sauer, 18 Va. App. at
771, 446 S.E.2d at 642. We did hold, however, that “a grandparent with whom a parent resides
is obviously a potential option for placement of the child[] as contemplated by Code
§ 16.1-283(A)” and the fact “[t]hat the grandmother did not present herself to the Department or
the trial court as an alternative placement for the child[] to the termination of [the parent’s]
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parental rights is not material.” Id. at 772-73, 446 S.E.2d at 642. Because the trial court in Sauer
heard no evidence or argument about the suitability of grandmother’s home, we held the
Department failed to meet its burden. Id. at 773, 446 S.E.2d at 642.
In the instant case, mother contends that DSS did not meet its burden of investigating
placement with a family member. However, the record establishes that DSS investigated
grandmother’s suitability as a custodian, and mother does not aver that anyone other than
grandmother was, in fact, a suitable custodian. Further, the record establishes that DSS’s
investigation of other family members, although perhaps not exhaustive, was sufficiently
thorough to permit the trial court to conclude DSS met its statutory burden, as interpreted in
Logan and Sauer.
The evidence showed that DSS was unable to locate the man mother identified as D.’s
father, with whom she described her relationship as brief, or any of his family. Mother’s only
immediate family members, in addition to grandmother, were mother’s brother, Gino, who was
twenty years old at the time of the hearing, and grandmother’s mother, Agnes Bilisits, who
resided in Pittsburgh and had seen D. on only three occasions for no more than a few weeks at a
time. DSS indicated in the various foster care plans that it had contacted these family members
“in an effort to achieve the goal of placement with relatives.” It reported that although “[t]here
were extensive periods of time when Uncle Gino was the primary care provider for [D.] during
the time [D.] lived with his mother,” Gino “has not expressed an interest in providing physical
care for [D.].” DSS indicated that “the . . . members” of mother’s family “have expressed an
interest [only] in visiting with [D.].” Agnes Bilisits, although present at trial and testifying in
grandmother’s behalf, gave no indication that she had changed her mind about accepting custody
of D. This evidence supports the finding that DSS met its burden of “considering whether there
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[were any other] relatives willing and suitable to take custody of the child” in lieu of terminating
mother’s parental rights. See Logan, 13 Va. App. at 131, 409 S.E.2d at 465.
Mother and grandmother contend next that the trial court abused its discretion in
concluding grandmother was not a suitable custodian for D. Mother contends additionally that
the trial court erred in applying the best interests standard and that it was required to make a
specific finding that placement with grandmother would be “unreasonable.” We reject these
contentions and hold the evidence, viewed in the light most favorable to DSS, supported the trial
court’s ruling that grandmother was not a suitable custodian for D.
Our case law clearly establishes that, “[w]hen 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.” Logan, 13 Va. App. at 128, 409 S.E.2d at 462(emphasis added); see also Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 827, 433
S.E.2d 500, 503 (1993) (holding that, in determining whether termination of parental rights is
proper, “[t]he child’s best interest is the paramount concern, keeping in mind the familial bonds
and the rights of both the parent and the child to maintain that bond where it can be done without
substantial threat to the child’s well-being”). Further, a trial court is presumed to know and
properly apply the law, “[a]bsent clear evidence to the contrary in the record.” Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Unless expressly required by
the applicable statute, see, e.g., Code § 20-107.1(F) (requiring that “[I]n contested [spousal
support] cases in the circuit courts, any order granting, reserving or denying a request for spousal
support shall be accompanied by written findings and conclusions of the court identifying the
[statutory] factors . . . which support the court’s order” (emphasis added)), Code § 20-108.1(B)
(requiring court to follow statutory guidelines for calculating child support and to “make written
findings” of fact justifying any deviation from amount due under guidelines (emphasis added)), a
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court is not required to make explicit findings of fact to support its decision, Akers v.
Commonwealth, 31 Va. App. 521, 532 n.5, 525 S.E.2d 13, 18 n.5 (2000).
Code § 16.1-283 requires that a court “shall give consideration to granting custody to
relatives of the child, including grandparents,” and that “[a]ny order transferring custody of the
child to a relative . . . shall be entered only upon a finding . . . that the relative . . . is one who,
after an investigation as directed by the court,” meets certain delineated conditions. However,
the statute does not require that the court’s findings be explicitly stated on the record, either
orally or in writing. Compare id. (“upon a finding”) with Code § 20-107.1(F) (requiring “written
findings”) and Code § 20-108.1(B) (requiring “written findings”). Furthermore, the statute does
not speak at all to the findings necessary when the court declines to enter an order transferring
custody. Thus, as long as the evidence supports the trial court’s decision not to award custody to
grandmother, the trial court did not err by failing to make an express finding that placement of D.
with grandmother would be, as mother phrases it, “unreasonable.”
Further, viewing the evidence in the light most favorable to DSS, rather than to
grandmother or mother, as we must on appeal, we conclude the record supports the trial court’s
finding that grandmother was not a suitable custodian for D.
The evidence, viewed in the light most favorable to the Commonwealth, established that
grandmother suffered from a variety of psychological problems, including bipolar disorder, for a
period of at least eight to eleven years and perhaps longer. Those problems began in 1990, when
her own children were about eight and six years old. In 1992, shortly before her son Gino’s
eighth birthday, grandmother voluntarily relinquished custody of him to DSS, saying she was
physically and mentally unable to care for him. Gino remained in foster care until 1996, during
which time DSS documented that grandmother’s compliance with the requirement that she take
parenting classes and attend counseling with Gino was intermittent. DSS also documented that
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grandmother resided with a boyfriend who drank alcohol and displayed violent tendencies
toward both grandmother and Gino and that Gino was afraid of him. The records also contained
information that “Gino had sexually molested” a 2 1/2 year old girl in grandmother’s care and
that, when confronted by the girl’s mother, grandmother told Gino “that she ‘wouldn’t hold it
against him but for him not to mess with her again.’” Other information contained a report of
grandmother’s “having sex in front of her children.” In 1998, grandmother sought help from
DSS in dealing with mother, who was then sixteen, saying she was “overwhelmed [by] some of
[mother’s] behaviors.”
The evidence also established that grandmother began receiving social security disability
benefits for her bipolar disorder in 1996. Although grandmother claimed not to have needed
medication for her disorder since 1998 and not to have been troubled by it since that time, she
admitted receiving disability benefits for it until 2001. Further, although the mental health
provider, Richard Timura, who examined grandmother in the course of this custody proceeding
concerning D. opined that grandmother was “probably functioning without any mental[] disorder
symptoms,” he expressly conditioned that opinion on the “assum[ption] [that] her reporting of
her situation is accurate.” Grandmother said on cross-examination that she told Timura she had
been treated for bipolar disorder fourteen years earlier, but she admitted she never told him she
had received disability benefits for that disorder from 1996 to 2001 because “[he] didn’t . . . ask
me that.” She also told Timura “there were no family issues,” saying she did so because there
were no family issues at the time he inquired. Thus, the record indicates grandmother was not
forthcoming with Timura about her own prior involvement with social services and the impact of
her psychological history on her ability to care for her own children.
Similar concerns existed over the accuracy of grandmother’s reporting to the Anson
County DSS. The Anson County reports indicate grandmother said “she has no issues that
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would inhibit her to properly care for the minor child” and that “she has never been involved
with Child Protective Services in the past.” The reports give no indication that grandmother
informed the Anson County DSS evaluator of her history of mental illness, even if she claimed it
was then dormant, and she specifically told the DSS evaluator that she had never been involved
with Child Protective Services when, in fact, her son Gino had been in the custody of DSS in
Virginia for a period of four years. These aspects of grandmother’s reporting gave the trial court
good reason to question grandmother’s credibility at the time of the hearing, as well.
Although these findings alone are sufficient to support the trial court’s decision, the court
noted additionally the observations of Anson County DSS in its investigation. Those
observations included grandmother’s failure to present to DSS a concrete plan for secondary
child care and the Department’s belief, based on what grandmother reported to it at the time of
the investigation, that she had insufficient financial resources to permit her to care for D.
Although grandmother named a private care provider she planned to use, she provided no details
about that individual or the cost of such care.
Finally, although mother expressed her desire at the hearing to have the court give
custody of D. to grandmother in lieu of terminating her parental rights, mother had earlier told
DSS that she and grandmother “have many issues that stem from [mother’s] childhood” when
“[grandmother] did not provide [mother] with the love and support she needed” and that she did
not want grandmother to have custody.
These factors, taken together and viewed in the light most favorable to DSS, supported
the trial court’s conclusion that placement with grandmother would not be in D.’s best interest.
Thus, we hold the evidence supports the trial court’s finding, not separately contested by mother,
that the evidence supported a termination of her parental rights under Code § 16.1-283(B).
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II.
For these reasons, we hold the evidence, viewed in the light most favorable to DSS,
supports the trial court’s conclusion that DSS met its burden of investigating placement with a
family member and that placement of D. with grandmother was not appropriate. Thus, we hold
the evidence supported the trial court’s termination of mother’s parental rights, and we affirm.
Affirmed.
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