COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Beales and Senior Judge Annunziata
ARTHUR M. JONES AND MARY JONES
MEMORANDUM OPINION *
v. Record No. 1182-10-2 PER CURIAM
FEBRUARY 22, 2011
HENRICO DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Catherine C. Hammond, Judge
(Stephen L. Hewlett, on brief), for appellants. Appellants
submitting on brief.
(Ellen R. Fulmer, Assistant County Attorney; Lauren A. Caudill,
Guardian ad litem for the minor child, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Reverend Arthur M. Jones and Mary Jones appeal an order in which the trial court denied
them custody of their granddaughter, A.T. Appellants argue that the trial court erred in finding that
they were not suitable custodians and by not investigating other family members for alternative
placement. Upon reviewing the record and briefs of the parties, we conclude that the trial court
did not err. Accordingly, we affirm the decision of the trial court.
BACKGROUND
We view the evidence in the light most favorable to the prevailing party below and grant
to it all reasonable inferences fairly deducible therefrom. See Logan v. Fairfax Cnty. Dep’t of
Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 462 (1991).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Henrico County Department of Social Services (the Department) first became involved
with the child and her family in the fall of 2005. 1 The mother physically abused A.T. The
Department provided services for the family and twice placed the children with appellants when
the mother was hospitalized for psychiatric care. 2
The Department subsequently learned that A.J. had been exposing himself to A.T. The
mother was unable to follow the safety plan developed with the Department, so A.J. was
removed from the home.
On April 11, 2008, the Department removed A.T. from the home after the mother was
unable to care for her due to the mother’s psychiatric problems. A.T. was placed in foster care.
Appellants indicated to the Department that they would like custody of A.T. They
obtained psychological evaluations, but failed to follow through with reunification therapy.
On February 11, 2010, the juvenile and domestic relations district court terminated
mother’s parental rights and held that appellants were not in a position nor were they qualified to
have custody of A.T. Appellants appealed. The trial court heard evidence on April 20, 2010,
and issued a letter opinion on April 28, 2010. The trial court held that appellants were
not suitable or competent custodians for [A.T.] because of their
age, their unwillingness to recognize [A.J.’s] sexual abuse of
[A.T.], their negative influence in 2006, and their failure to
participate in the reunification plans recommended by [a foster
care worker]. In addition, they have not been in contact with
[A.T.] since 2008 and the relationship has suffered from the
separation.
The trial court entered a final order on June 16, 2010, and this appeal followed.
1
At the time, A.T. lived with her mother and her half-brother, A.J. The children will be
referred to by their initials.
2
Mother was diagnosed with schizophrenia and bipolar disorder.
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ANALYSIS
Appellants argue that the trial court erred in finding that they were not suitable custodians
and by not investigating other family members for alternative placement.
“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.” Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16
(1986) (citations omitted).
Before terminating a parent’s rights, “the court shall give a consideration to granting
custody to relatives of the child, including grandparents.” Code § 16.1-283(A). 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.” Logan, 13 Va. App. at 131, 409 S.E.2d at
465.
Appellants informed the Department shortly after A.T. was placed in foster care that they
were interested in having custody of her. The Department arranged for them to have
psychological evaluations, which they completed. The counselor expressed concern that both
appellants denied that any sexual abuse occurred between A.T. and A.J. The counselor
confronted each of them with the fact that A.J. admitted the abuse and took a lie detector test,
which showed that he was telling the truth. Appellants stated that they did not believe him and
thought he was “fantasizing.” A.T.’s counselor opined that it was important for A.T. to be able
to openly discuss her thoughts and feeling about the abuse, and it could negatively impact her
progress in therapy if her expressions were punished or negated. Despite their desire to have
custody of A.T., appellants failed to follow through with the reunification therapy that was
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recommended by the Department. At the time of the hearing, they had not seen A.T. for
approximately two years.
The trial court did not err in concluding that appellants were “not suitable or competent
custodians” for A.T. There was sufficient evidence to prove that placement with appellants
would not be in A.T.’s best interests.
Appellants also argue that the trial court should have considered other relatives as
possible placements for A.T. At trial, appellants presented Anna Williams as a possible relative
placement. 3 Williams was the niece of Reverend Jones. She testified about her home and her
willingness to take A.T. into her custody. However, on cross-examination, Williams admitted
that she was not fully aware of why A.T. was in foster care and that she had only seen A.T. twice
in the last five years.
The trial court received sufficient evidence to evaluate Williams as a possible placement
for the child. See Hawthorne v. Smyth Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 139, 531
S.E.2d 639, 644 (2000) (although the Department did not investigate a relative, the relative
testified at trial, so “the trial court was presented with evidence for its consideration as to the
suitability” of placing the child with a relative before it ordered termination of the parent’s
rights). The trial court concluded that it was now “too late” for Williams to come forward as a
possible placement. In addition, the evidence proved that Williams did not know the extent of
the abuse suffered by A.T. or about her therapy, nor did she know A.T. very well. 4
In their brief, appellants also mention Florine Burton as a possible placement. Burton
was present at trial, but after Williams testified, appellants’ counsel said that Burton was not
3
At no time since A.T. was placed in foster care did A.T.’s mother or appellants tell the
Department about other possible relatives who could have been considered for placement.
4
The trial court asked her if she knew A.T., and Williams responded, “Briefly.”
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going to be called as a witness. During closing argument, appellants did not argue that the trial
court should have considered Burton as a possible placement. Appellants asked the trial court to
consider either themselves or Williams as placements. Therefore, appellants’ argument that
Burton should have been considered as a possible relative placement was not presented to the
trial court, and we will not consider it. See Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998); Rule 5A:18.
Accordingly, the trial court did not err in finding that neither appellants nor Williams
were suitable custodians.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is affirmed.
Affirmed.
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