Deatra A. Burch v. Alexandria Department of Human Services

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Kelsey and Alston
Argued by teleconference
DEATRA A. BURCH
MEMORANDUM OPINION* BY
v. Record No. 0888-11-4 JUDGE D. ARTHUR KELSEY
MARCH 13, 2012
ALEXANDRIA DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Nolan B. Dawkins, Judge
Paul D. Langley (Langley and Langley, P.C., on brief), for
appellant.
Richard F. Gibbons, Jr. (Stephen J. Saunders, Guardian ad litem
for minor children; Richard F. Gibbons, Jr., PLC, on brief), for
appellee.
Pursuant to Code § 16.1-283(C)(2), the trial court terminated the parental rights of Deatra
A. Burch over five of her children. On appeal, Burch argues (i) she did not receive adequate
notice of the termination proceedings, and (ii) the evidence was insufficient to justify the
termination. We disagree and affirm.
I. NOTICE OF TERMINATION PROCEEDINGS
In June 2010, Alexandria Department of Human Services (ADHS) filed petitions
identifying four of Burch’s children in ADHS foster care. The petitions asserted that each child
“REQUIRES FURTHER DETERMINATION AS TO THE TERMINATION OF THE MOTHER’S
RESIDUAL PARENTAL RIGHTS AND RESPONSIBILITIES, IN THE CITY OF ALEXANDRIA,
SECTION 16.1-283.” App. at 13-16. Accompanying each petition was a summons identifying a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hearing date in the Alexandria Juvenile and Domestic Relations District Court (JDR court). The
summons explained:
TAKE NOTICE THAT A HEARING INVOLVING THIS CASE
WILL BE HELD AT THE ADDRESS NOTED AT LEFT ON
07/26/2010 2:00 PM
……………………………………AT………………………….
FOR THE PURPOSE OF:
TERM MOTHER’S RIGHTS
SEE ATTACHED
The attachments, entitled “NOTICE OF TERMINATION OF RESIDUAL PARENTAL RIGHTS,”
identified each of the four children and advised:
The attached petition seeks to terminate the residual parental rights
of the parents and step-parents of the above-named child.
“Residual parental rights and responsibilities” means all rights and
responsibilities remaining with the parent after the transfer of legal
custody or guardianship of the person, including but not limited to
the right of visitation, consent to adoption, the right to determine
religious affiliation and responsibility for support.
Id. at 20-23. In July 2010, ADHS filed a similar petition for Burch’s fifth child and, on August
2, 2010, a fifth summons and attachment issued, advising of a hearing date of “08/23/2010 at
3:00 PM.” See id. at 28-30.
In response to these petitions and notices, Burch appeared with counsel in the JDR court.
After hearing the evidence, the JDR court entered orders terminating Burch’s parental rights over
her children pursuant to Code § 16.1-283(C). Burch appealed to the Alexandria Circuit Court
seeking a de novo determination. Burch’s notice of appeal identified the cases as “termination of
parental rights cases.” Once in circuit court, however, Burch moved to dismiss the petitions,
claiming they provided inadequate notice of ADHS’s request to seek termination of her parental
rights. The circuit court denied the motion, heard the evidence, and terminated Burch’s parental
rights under Code § 16.1-283(C)(2).
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On appeal, Burch contends the circuit court erred by denying her motion to dismiss
because the petitions filed in JDR court and appealed to circuit court provided inadequate notice
of ADHS’s intent to seek termination of her parental rights. Both the statute and the United
States Constitution, she argues, compel this conclusion. We disagree. Code § 16.1-283(A)
addresses the required notice: “The residual parental rights of a parent or parents may be
terminated by the court as hereinafter provided in a separate proceeding if the petition
specifically requests such relief.” Subsection A goes on to explain:
The summons shall be served upon the parent or parents and the
other parties specified in § 16.1-263. . . . The summons or notice
of hearing shall clearly state the consequences of a termination of
residual parental rights. Service shall be made pursuant to
§ 16.1-264.
Code § 16.1-283(A) thus contemplates a petition specifically requesting termination and a
“summons or notice” clearly stating the “consequences of a termination of residual parental
rights.”
When read together, the petitions, summonses, and notices in this case provide sufficient
notice under Code § 16.1-283(A). The petitions specifically seek a “DETERMINATION AS TO
THE TERMINATION OF THE MOTHER’S RESIDUAL PARENTAL RIGHTS” and explicitly cite
Code § 16.1-283. One of the accompanying notices, entitled “NOTICE OF TERMINATION OF
RESIDUAL PARENTAL RIGHTS,” makes clear the “attached petition seeks to terminate the
residual parental rights” and explains this affects “all rights and responsibilities remaining with
the parent . . . including but not limited to the right of visitation, consent to adoption, the right to
determine religious affiliation and responsibility for support.” App. at 20-23, 30.
Burch can hardly claim these petitions and notices failed to inform her of the true nature
of this case. No doubt she knew the JDR court proceeding was initiated as a parental termination
case. If not, she soon discovered that fact when the JDR court entered the orders terminating her
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parental rights. Burch appealed the termination proceedings, naming them as such, to the circuit
court when she sought de novo review. Nothing in the circuit court’s record suggests Burch ever
once expressed any doubt as to the nature of the proceedings. Nor do we think any reasonable
person could. For these reasons, we find no error in the circuit court’s decision to deny Burch’s
motion to dismiss alleging noncompliance with the notice requirements of Code § 16.1-283(A).1
II. SUFFICIENCY OF THE EVIDENCE
Burch also challenges the sufficiency of the evidence supporting the circuit court’s
termination orders under Code § 16.1-283(C)(2).
In an appeal of a termination proceeding, we review 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 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, 309 S.E.2d 460, 463 (1991)). In addition, “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
1
For similar reasons, we find no merit in Burch’s constitutional claim that the
proceedings violated her procedural due process rights under the Fourteenth Amendment.
“Nothing in the Constitution guarantees continuation of the parent-child relationship once
fundamentally fair procedures have been followed to prove parental unfitness.” Wright v.
Alexandria Div. of Soc. Servs., 16 Va. App. 821, 830, 433 S.E.2d 500, 505 (1993). The notices
provided to Burch satisfy the threshold constitutional standard of fundamentally fair procedures.
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to guard and to foster a child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d
794, 795 (1990).
Because “the rights of parents may not be lightly severed,” M.G. v. Albemarle Cnty.
Dep’t of Soc. Servs., 41 Va. App. 170, 187, 583 S.E.2d 761, 769 (2003) (citation omitted), clear
and convincing evidence must establish the statutory grounds for termination, Fields, 46
Va. App. at 7, 614 S.E.2d at 659. In the end, the “child’s best interests” remain the “paramount
consideration” of the court. Akers v. Fauquier Cnty. Dep’t of Soc. Servs., 44 Va. App. 247, 262,
604 S.E.2d 737, 744 (2004) (citation omitted). Even on this issue, however, we cannot
“substitute our judgment” for the circuit court’s, Ward v. Commonwealth, 13 Va. App. 144, 148,
408 S.E.2d 921, 923 (1991), but instead review the record only to determine if sufficient
evidence supports it.
In this case, the circuit court found clear and convincing evidence under Code
§ 16.1-283(C)(2) to justify terminating Burch’s parental rights. Code § 16.1-283(C)(2)
authorizes termination if it is in the best interests of the child and
[t]he 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.
Termination decisions under subsection 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.” Toms, 46 Va. App. at 271, 616 S.E.2d at 772 (quoting City of Newport
News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).
“Considerably more ‘retrospective in nature,’ subsection C requires the court to determine
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whether the parent has been unwilling or unable to remedy the problems during the period in
which [s]he has been offered rehabilitation services.” Id.The evidence in this case amply supports the circuit court’s determination. ADHS
discovered in 2008 a pattern of neglect before Burch’s children were removed from her
residence.2 During periods in which Burch was unwilling to care for her children, she placed
them in the care of their great-grandmother. Burch would be absent for days, providing no
information regarding her whereabouts. Nor would she make any provision (such as food,
diapers, or other necessities) for the children while they were left in the great-grandmother’s
care. Finding evidence of neglect, the JDR court entered protective orders for four of the
children.3
This pattern of neglect escalated into a near tragedy on Christmas Day 2008. Though
previously cited for doing so, Burch disabled the smoke detector in an upstairs hallway. The
Alexandria Fire Department investigator suspected Burch negligently disposed of a cigarette in
an upstairs bedroom, causing a small fire.4 Burch was downstairs when she smelled the smoke
from the fire, but did not go upstairs to investigate. Instead, she sent her six-year-old daughter to
assess the situation. The fire eventually destroyed the residence. In January 2009, the JDR court
entered orders removing all four children from Burch’s custody.
The children have varying needs. One of the children, then seven years old, had to be
hospitalized “because of frequent temper outbursts, physical and verbal aggression, sexually
2
At the time of the circuit court hearing, the children were ages eight, seven, five, four,
and twenty-two months.
3
Burch later gave birth to the fifth child subject to these termination proceedings.
4
The investigator “strongly believe[d] that carelessly discarded smoking materials may
have played a role given the time it took for this fire to progress and the potential heat release
rate of [the] first materials ignited.” ADHS’s Ex. 7. At trial, Burch claimed smoking “had
nothing to do with the fire.” App. at 322.
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inappropriate behaviors, threats to run away, and property destruction.” ADHS’s Ex. 10. She
also had “special education needs” and attended a “personalized day school for emotionally and
learning disabled students.” Id. Another child, then six years old, was diagnosed with
“Adjustment Disorder with Anxiety” and sometimes suffered from episodes of unexplained
panic. Id. The youngest child repeatedly slammed his head against the floor or furniture at the
slightest frustration. App. at 203. While in Burch’s custody, some of the children were exposed
to domestic violence and later, in foster care, mimicked the violent acts they had previously
observed.
ADHS initially tried to rehabilitate Burch by returning one of the children to her care in
June 2009 and by Labor Day 2009, had returned all of the children. During this time, Burch was
offered parenting coaches, mental health treatment, drug court supervision, and intensive
therapeutic in-home services. Despite these extensive services, Burch appeared unable to cope
with basic parenting responsibilities, and ADHS concluded Burch still had not acquired minimal
parenting competencies. She could not get the children to school on time, left the two youngest
children unattended, displayed erratic and bizarre behavior, and reacted angrily to ADHS’s daily
efforts to help her. In November 2009, less than three months after all the children were returned
to her, Burch smoked PCP, initially refused to submit to a drug test (which she eventually
submitted to and tested positive for PCP and marijuana), and, later the same evening, left with
the children and refused to disclose to ADHS their location, stating only that “she was gone.”5
App. at 128. ADHS finally convinced Burch to bring the children back the next day and all five
children were then removed from Burch’s custody.
5
Burch testified she had smoked PCP “because [she] had an abortion and [she] was
depressed.” App. at 299. At the time of her circuit court hearing, Burch was again pregnant.
When asked if she would take her prescribed anti-depressant medication during her pregnancy,
she answered, “I’m not going to go take medication with my baby in my stomach,” id. at 302,
even though she acknowledged her physician recommended that she do so, id. at 303.
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We subscribe to the “maxim that, sometimes, the most reliable way to gauge a person’s
future actions is to examine those of his past.” Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770(quoting Petry v. Petry, 41 Va. App. 782, 793, 489 S.E.2d 458, 463 (2003)). “As many courts
have observed, one permissible ‘measure of a parent’s future potential is undoubtedly revealed in
the parent’s past behavior with the child.’” Id. (citation omitted). “No one can divine with any
assurance the future course of human events. Nevertheless, past actions and relationships over a
meaningful period serve as good indicators of what the future may be expected to hold.” Id.(citation omitted).
During the relevant period, clear and convincing evidence demonstrated that Burch,
“without good cause,” was either “unwilling or unable within a reasonable period of time . . . to
remedy substantially the conditions” that led to the removal of her children and their continued
placement in foster care. Code § 16.1-283(C)(2). The children’s best interests, the circuit court
correctly held, led to this conclusion. “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.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535,
540, 394 S.E.2d 492, 495 (1990). Applying these principles, the circuit court did not err in
terminating Burch’s parental rights over the five children identified in the lower court’s final
orders.6
6
On brief, Burch argues the trial judge’s remarks from the bench implied he did not
apply the termination standard individually to each child, but rather appeared to make his
ultimate decision considering the children as a group. The court, however, entered five
termination orders — each specifically finding the necessary factual predicates for termination
under Code § 16.1-283(C)(2). We are “particularly skeptical” of efforts to challenge a circuit
court ruling by focusing on “fragmented remarks from the bench.” White v. White, 56 Va. App.
214, 218, 692 S.E.2d 289, 291 (2010); see also Damon v. York, 54 Va. App. 544, 555, 680
S.E.2d 354, 360 (2009) (holding it improper to “fix upon isolated statements of the trial judge
taken out of the full context in which they were made, and use them as a predicate for holding
the law has been misapplied”).
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III.
In sum, the circuit court did not err by denying Burch’s motion to dismiss the termination
proceedings as violative of statutory and constitutional notice requirements. Nor did the court
err in finding that clear and convincing evidence justified the termination of Burch’s parental
rights under Code § 16.1-283(C)(2).
Affirmed.
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