COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Bumgardner
CHARLES ROBERT OTEY
MEMORANDUM OPINION*
v. Record No. 2558-05-3 PER CURIAM
JULY 18, 2006
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Tonita M. Foster; Lora A. Keller; Law Office of Tonita M. Foster,
on briefs), for appellant. Appellant submitting on briefs.
(William M. Hackworth, City Attorney; Heather P. Ferguson,
Assistant City Attorney, on brief), for appellee. Appellee
submitting on brief.
(Robin Dearing, Guardian ad litem for the infant child, on brief).
Guardian ad litem submitting on brief.
Charles Robert Otey appeals from an order terminating his parental rights to his son, D.S.
Otey contends (i) the trial court erred by denying his motion to appoint a new guardian ad litem
(“GAL”) for the child prior to the final evidentiary hearing, and (ii) the Roanoke City
Department of Social Services (“DSS”) failed to prove by clear and convincing evidence his
parental rights should have been terminated under Code § 16.1-283(C). Finding the first issue
procedurally defaulted and the second without merit, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
We view the evidence and all reasonable inferences in the light most favorable to DSS,
the prevailing party below. Martin v. Pittsylvania County Dep’t of Soc. Servs., 3 Va. App. 15,
20, 348 S.E.2d 13, 16 (1986).
Otey’s minor son, D.S., was born May 3, 1998. Otey discovered he was D.S.’s father in
2002. However, D.S.’s mother retained custody of D.S. until November 2002, when a DSS court
services worker requested an emergency hearing due to concerns about the mother’s stability.
The juvenile and domestic relations district court (“JDR district court”) then granted Otey
temporary custody. When the mother failed to appear at a January 2003 hearing for a review of
the custody award, Otey retained custody conditioned on complying with DSS recommended
treatments and therapy.
After working with Otey from January until May 2003, DSS filed a Motion to Show
Cause with the JDR district court, alleging that Otey had not complied with any of its
recommendations. The JDR district court granted DSS custody of D.S. and placed him in foster
care. The JDR district court also found Otey in contempt and sentenced him to thirty days in jail.
To regain custody of D.S., the court ordered Otey to complete the following:
Enter into and complete a substance abuse treatment program and
enter into counseling for depression;
Enter into a detox program and a thirty day residential treatment
program at the Shenandoah Recovery Center, to be followed by an
after care program at Blue Ridge Behavioral Healthcare;
Attend a minimum of two AA or NA meetings per week with
documentation to DSS;
Continue random drug and alcohol screens with the Court
Community Corrections office;
Cooperate with the Mother’s visitation, which was to be supervised
and arranged by DSS.
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Otey failed to complete or comply with the JDR district court’s orders. At a November
2004 hearing, the JDR district court terminated Otey’s parental rights. The JDR district court
also approved DSS’s petition to allow D.S.’s foster parents to adopt him. Otey appealed to the
circuit court. Following a final evidentiary hearing, the circuit court terminated Otey’s parental
rights.
II.
A. DISQUALIFICATION OF GAL
In February 2005, Otey filed with the circuit court clerk a motion to disqualify the GAL
and to appoint a replacement.1 The motion alleged that the GAL had been “hired” to represent
DSS during a temporary period while the DSS attorney was on an unspecified “maternity leave.”
Based on this conflict of interest, the motion requested the disqualification of the GAL and the
appointment of a new one “prior to any hearing in this matter.”
The evidentiary hearing took place in June 2005. The record, however, does not reflect
that Otey asked that the matter be placed on the motion docket prior to the evidentiary hearing.
At that hearing, Otey did not raise the issue or seek any ruling on his prior motion. Nor did Otey
at any time offer any evidence, by stipulation or otherwise, in support of the motion. To be sure,
nothing in the record suggests the circuit court ever ruled on the motion.2
Otey’s counsel filed a 40-page brief after the evidentiary hearing, which the circuit court
accepted in lieu of closing arguments. Later relabeled and filed as “Objections to the Circuit
Court Order,” the brief stated on page 27: “On January 31, 2005, the attorney for the
Department of Social Services delivered her baby and the case which had been continued to
February 4, 2005 was reset. The guardian ad litem for [D.S.] took over as the Department of
1
The same motion was filed twice with the clerk of court.
2
Otey filed a similar motion in the JDR district court, which was denied.
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Social Services Attorney.” On page 40, the brief continued: “Further, to allow the same
attorney to act as the child’s guardian ad litem and the State’s attorney at the same time is a clear
conflict of interest. How could this attorney give any fair consideration to the father’s position
or the child’s need to be with the father when her job as the State’s attorney is to take the child
from him[?]”
On appeal, Otey contends the trial court erred by not granting his pretrial motion to
disqualify the GAL and to appoint a replacement. On appeal, DSS argues that Rule 5A:18
precludes any appellate review on this issue. We agree.
“As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection
in the trial court to preserve the issue on appeal. Not just any objection will do. It must be both
specific and timely — so that the trial judge would know the particular point being made in time
to do something about it.” Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738,
742 (emphasis in original), aff’d, 45 Va. App. 811, 613 S.E.2d 870 (2005) (en banc); see also
Singson v. Commonwealth, 46 Va. App. 724, 749, 621 S.E.2d 682, 693 (2005).
Under settled waiver principles, we treat a circuit court’s failure to rule no differently
than a ruling challenged on appeal as error. Neither can be preserved for appellate review except
by a specific, contemporaneous objection in the trial court. See Buck v. Jordan, 256 Va. 535,
545-46, 508 S.E.2d 880, 885-86 (1998); Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d
185, 191 (1967); Harter v. Commonwealth, 31 Va. App. 743, 752, 525 S.E.2d 606, 610-11
(2000); Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993).
In this case, Otey failed to give specific and timely notice to the trial court of his
objection to the court’s failure to rule on his pretrial motion to disqualify the GAL. Though the
motion specifically requested that a replacement GAL be appointed before the evidentiary
hearing, Otey never brought the matter to the trial court’s attention prior to this hearing. Nor did
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Otey raise the motion orally at the evidentiary hearing, present any evidence in support of the
motion, or make any proffer of the specific nature of the alleged conflict, its duration and scope,
or its potential impact (if any) on the case.
True, Otey’s closing argument brief offered a few isolated comments on the subject. But
none sufficiently alerted the trial court of the need to rule on a motion that, by its own terms, had
been rendered moot by the completion of the evidentiary hearing. At most, the remarks in
Otey’s brief sought merely to discredit the GAL’s recommendation based upon an unproven
allegation of a conflict made in a pretrial motion that, for whatever reason, Otey chose not to
pursue. For these reasons, Rule 5A:18 precludes appellate review of Otey’s argument that the
circuit court erred by not disqualifying the GAL and appointing a replacement prior to the
evidentiary hearing.3
We must also observe that Otey’s effort on appeal suffers from similar limitations. His
opening brief devotes no more than a couple of paragraphs and a single case citation in support
of his GAL disqualification argument. The reasoning is largely perfunctory and the case cited
legally extraneous.4 Nowhere does the appellate brief direct our attention to any specific factual
evidence in the record (as opposed to mere allegations in written motions and briefs) supporting
counsel’s disqualification argument in the circuit court. Rule 5A:20(e) requires appellants to
brief the “principles of law, the argument, and the authorities relating to each question
presented.” Questions “unsupported by argument, authority, or citations to the record do not
3
On appeal, Otey does not argue in the alternative that the “good cause” and “ends of
justice” exceptions to Rule 5A:18 apply to this case. We will not invoke these exceptions sua
sponte. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 63 n.3, 628 S.E.2d 74, 77 n.3 (2006)
(en banc); Widdifield v. Commonwealth, 43 Va. App. 559, 564, 600 S.E.2d 159, 162 (2004) (en
banc).
4
Appellant cites only Santosky v. Kramer, 455 U.S. 745 (1982), which holds that the
clear-and-convincing burden of proof applies to parental termination cases.
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merit appellate consideration.” Epps v. Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d 912,
926-27 (2006) (en banc); Mullin v. Mullin, 45 Va. App. 289, 306, 610 S.E.2d 331, 339 (2005).5
On this ground as well, we find it inappropriate to reach the merits of Otey’s appellate challenge
to the circuit court’s failure to disqualify the GAL.
(B) TERMINATION OF PARENTAL RIGHTS
Otey’s final issue on appeal is that the trial court erred by finding that DSS met its burden
under Code § 16.1-283(C)(2)
with respect to Charles Robert Otey and [D.S.] especially
considering that DSS had placed the minor child in Mr. Otey’s
custody when DSS had full knowledge of Mr. Otey’s extensive
medical and psychological history as well as his marijuana use for
medical purposes, and knew of prior difficulties with money,
transportation, and coordination, and especially if the Court had
access to Foster Plan C of the Virginia Department of Social
Services Foster Care Manual titled, “Confidential Information
Provided to the Court Only.”
Code § 16.1-283(C) provides:
The residual parental rights of a parent or parents of a child placed
in foster care as a result of court commitment . . . 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:
* * * * * * *
2. The 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. Proof that the parent
5
See also Jeter v. Commonwealth, 44 Va. App. 733, 739-40, 607 S.E.2d 734, 737 (2005);
Cirrito v. Cirrito, 44 Va. App. 287, 292 n.1, 605 S.E.2d 268, 270 n.1 (2004); Budnick v.
Budnick, 42 Va. App. 823, 833, 595 S.E.2d 50, 55 (2004); Boyd v. County of Henrico, 42
Va. App. 495, 506 n.6, 592 S.E.2d 768, 773 n.6 (2004) (en banc); Roberts v. Roberts, 41
Va. App. 513, 527, 586 S.E.2d 290, 297 (2003); Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
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or parents, without good cause, have failed or been unable to make
substantial progress towards elimination of the conditions which
led to or required continuation of the child’s foster care placement
in accordance with their obligations under and within the time
limits or goals set forth in a foster care plan filed with the court or
any other plan jointly designed and agreed to by the parent or
parents and a public or private social, medical, mental health or
other rehabilitative agency shall constitute prima facie evidence of
this condition. The court shall take into consideration the prior
efforts of such agencies to rehabilitate the parent or parents prior to
the placement of the child in foster care.
Code § 16.1-283(C) mandates a two-prong showing to terminate a parent’s rights. First,
the termination must be in the child’s best interests. Second, subpart (C)(2) requires a showing
that “the parent has been unwilling or unable to remedy substantially the conditions that brought
the child into foster care.” Akers v. Fauquier County Dep’t of Soc. Servs., 44 Va. App. 247,
257-58, 604 S.E.2d 737, 742 (2004).
a. Prong One
The evidence supported the trial court’s finding that adoption would be in D.S.’s best
interests pursuant to the factors outlined in Code § 20-124.3. Regarding factor (1) “the age and
physical and mental condition of the child, giving due consideration to the child’s changing
developmental needs,” the court found that D.S. has been in foster care for over two and one-half
years. During his time in foster care, he has been making perfect grades in school. He has
bonded with his foster mother, and is engaged with his friends and in his activities.
Along with D.S.’s successful adjustments in school and at home, the evidence regarding
Otey’s mental and physical health proved that adoption would be in D.S.’s best interests. Code
§ 20-124.3 (considering factor (2), “the age and physical and mental condition of each parent,”
and factor (3), “the relationship existing between each parent and each child, giving due
consideration to the positive involvement with the child’s life, the ability to accurately assess and
meet the emotional, intellectual and physical needs of the child”). Otey suffers from a major
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depressive disorder, and has required psychiatric hospitalization twice within the past three
years. He has been addicted to marijuana since he began court-ordered testing, despite the court
order. He has not been gainfully employed in a number of years and, at the time of the hearing,
relied on financial assistance from various public agencies for food, housing, and medical needs.
In addition, the evidence proved that Otey consistently thwarted attempts to promote a healthy
relationship between D.S. and his mother. Id. (considering factor (6), “the propensity of each
parent to actively support the child’s contact and relationship with the other parent, including
whether a parent has unreasonably denied the other parent access to or visitation with the child”).
When we review a trial judge’s decision, 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). Accordingly, the evidence proved DSS satisfied the first prong of Code § 16.1-283(C)
by proving that adoption would be in D.S.’s best interests.
b. Prong Two
DSS also met the second prong of Code § 16.1-283(C) by showing that Otey was unable
or unwilling “to remedy substantially the conditions which led to or required continuation of
[D.S.’s] foster care placement” as required by Code § 16.1-283(C)(2).
The statute allows the trial judge to consider the circumstances both prior to and after
foster care placement, including DSS’s prior effort to “rehabilitate the parent . . . prior to the
placement of the child in foster care.” Code § 16.1-283(C)(2). During the period when Otey had
custody of D.S., DSS asked that Otey attend Blue Ridge Behavioral Healthcare’s Mentally Ill
Chemically Addicted (MICA) program pursuant to the order from the JDR district court. The
MICA program was described as the least intensive of the Blue Ridge Recovery programs.
Although Otey attended MICA in February 2003, he missed numerous appointments and never
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completed the treatment. In March 2003, Otey rescinded his DSS health care release forms, so
DSS could no longer obtain information from Otey’s health care providers, and could no longer
monitor his case.
Otey failed to document his attendance at any of the Narcotics Anonymous or Alcoholics
Anonymous meetings DSS required pursuant to the court order, and Otey failed to cooperate
with the random drug screenings. Otey complied with the court-ordered drug screenings in
January, June, and September 2003, and tested positive for marijuana each time. Otey allowed a
DSS case worker to make three home visits, but refused any further visits, and refused to take
her phone calls after April 2003.
DSS further documented Otey’s repeated failures to comply with court-ordered treatment
and his inability to progress in the recommended rehabilitation programs after D.S. was placed in
foster care in September 2003. The DSS initial foster care service plan required Otey to fully
cooperate with DSS, maintain contact with the case worker, report changes in his current
situation, comply with all services identified in the court order and service plans proposed by
DSS, and comply with any other recommendations from other service providers.
Otey did not comply with the DSS plan of recommended treatment programs, and failed
to document or attend meetings with Alcoholics Anonymous or Narcotics Anonymous. He also
failed to complete his parenting classes, and failed to attend drug screenings.
Otey relies on the testimony of Dr. Neil Musselman, a psychiatrist, regarding progress
Otey made in his therapy to show that he was able to “remedy substantially the conditions which
led to or required continuation of [D.S.’s] foster care placement.” Dr. Musselman testified
Otey’s recent mood had been within normal limits. He also testified Otey had changed since his
treatment:
I think he has had a better control of his anger. He has presented
generally a less irritable, agitated manner. With me he has been
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perfectly cooperative, logical, rational. I think his mood has
improved and he doesn’t demonstrate as much anxiety as he did
when I first began to work with him.
Dr. Musselman also testified he saw no issues with Otey’s ability to parent, although he
had not seen D.S. and Otey together. Regarding Blue Ridge’s handling of Otey’s case, Dr.
Musselman stated:
[F]rankly, our agency I don’t think as a whole has done a good job
in presenting an organized coherent report of his participation
within the agency.
* * * * * * *
My experience has been that what they have presented has been
fragmented and somewhat disorganized and I personally have been
frustrated by it.
Regardless, the trial court was not required to accept Dr. Musselman’s testimony as
conclusive. Otey’s recent progress came well after the twelve-month period prescribed in the
statute. Code § 16.1-283(C)(2) (“The 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 . . . .”).
“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, 3 Va. App. at 20, 348 S.E.2d at 16. The JDR district court had required Otey to
complete treatment for his depression and addictions to maintain and then regain custody of his
child. DSS proved by clear and convincing evidence that termination of Otey’s parental rights
was in D.S.’s best interest and that despite the passage of several years and repeated attempts,
Otey could not substantially remedy his mental health issues and drug addiction that led to D.S.’s
continued placement in foster care. “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
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his responsibilities.” Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535, 540,
394 S.E.2d 492, 495 (1990); accord Roanoke City Dep’t of Soc. Servs. v. Heide, 35 Va. App.
328, 336-37, 544 S.E.2d 890, 895 (2001). Accordingly, we affirm the rulings of the trial court.
Affirmed.
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