COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
JONATHAN GABRIEL DANIELS
MEMORANDUM OPINION*
v. Record No. 1133-13-4 PER CURIAM
NOVEMBER 12, 2013
CULPEPER COUNTY DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
Susan L. Whitlock, Judge
(V. R. Shackelford, III, on briefs), for appellant.
(Robert F. Beard; Beard Law, PC, on brief), for appellee.
(J. Michael Sharman; Commonwealth Law Offices, P.C., on brief),
Guardian ad litem for the minor children J.D., C.D., and K.D.
(David R. Danielli; Getty & Associates, P.C., on brief), Guardian
ad litem for the minor child A.K.
On May 20, 2013, the trial court entered orders terminating the residual parental rights of
Jonathan Gabriel Daniels (appellant) to his children, J.D., C.D., K.D., and A.K., pursuant to
Code § 16.1-283(C)(2). On appeal, appellant argues the trial court erred: 1) in not holding the
termination hearing within ninety days of his notice of appeal as required by Code
§ 16.1-296(D), 2) in hearing the cases “after non-compliance with the applicable procedural
and/or time requirements of Title 16.1 of the Virginia Code,” 3) in terminating appellant’s
parental rights even though he did not receive the recommended psychological services, and
4) in finding clear and convincing evidence to support the terminations pursuant to Code
§ 16.1-283(C)(2). Upon reviewing the record and briefs of the parties, we conclude this appeal
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
is without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
Facts
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
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)).
Appellant is the father of J.D., born on March 2, 2000, C.D., born on March 23, 2001,
K.D., born on October 7, 2004, and A.K., born on June 13, 2010. The residual parental rights of
the mother of J.D., C.D., and K.D., as well as the rights of the mother of A.K., have been
terminated voluntarily.
J.D., C.D., and K.D. were removed from the home they shared with appellant and A.K.’s
mother on November 12, 2010. Prior to the removal, the family had been receiving assistance
and services from the Culpeper County Department of Social Services (CCDSS) and other
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agencies since April of 2010. Despite this assistance, which included help paying rent and a
psychological evaluation for appellant, the family’s living situation had deteriorated. 1 On the
day of the removal, CCDSS representatives found the house filthy, animals and animal feces in
the house, and unsafe heating conditions. Appellant had been warned that the conditions in the
home were unsafe, and he had promised to correct them.
On January 18, 2011, CCDSS was contacted because appellant and A.K.’s mother had
left the hospital against medical advice with A.K., who had a severe bronchial infection and a
compromised oxygen level. A.K. was removed from appellant’s home on January 18, 2011.
CCDSS developed foster care service plans regarding all four children. The plans
required appellant to receive parenting classes and training. Initially, appellant had supervised
visitation with the children. However, this later arrangement was changed to therapeutic
visitation because appellant made inappropriate comments to the children regarding their
mother’s choice to live with a sex offender rather than remain with them. Appellant’s behavioral
therapist reported that appellant’s interaction with the children was not improving and he did not
accept correction or help regarding parenting issues. Appellant received extensive services,
including counseling, for more than two years, but he made no improvement in addressing his
mental health and parenting issues.
As of October 2011 appellant was homeless. CCDSS had provided him with the services
of a “Building on Basics” worker to help him with budgeting and finding appropriate housing,
but he was unable to maintain suitable housing. At the time of the termination hearing on
February 16, 2013, appellant was serving a twelve-month sentence for failing to pay child
support.
1
On July 26, 2010, Dr. A.J. Anderson conducted a mental health evaluation upon
appellant. Anderson’s report recommended further mental health treatment and parenting
education for appellant.
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I.
Appellant argues the trial court erred in conducting the termination hearing on February
16, 2013, which was more than ninety days after March 9, 2012, when he perfected his appeal
from the lower court’s termination rulings. Code § 16.1-296(D) provides in pertinent part:
“When an appeal is taken in a case involving termination of parental rights brought under
§ 16.1-283, the circuit court shall hold a hearing on the merits of the case within 90 days of the
perfecting of the appeal.” With regard to Code § 16.1-296(B), this Court stated:
Where a statute contains “prohibitory or limiting language,” the
statute is mandatory, and a court cannot exercise its subject matter
jurisdiction if the requirements of the statute have not been met.
See Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636,
638-39 (1994); Harris v. Commonwealth, 52 Va. App. 735, 744,
667 S.E.2d 809, 814 (2008). In contrast, where a statutory
directive is merely directory and procedural, as opposed to
mandatory and jurisdictional, failure to comply with the statutory
requirement does not necessarily divest the court of the power to
exercise its subject matter jurisdiction. See Jamborsky, 247 Va. at
511, 442 S.E.2d at 638-39. Stated more directly, the failure to
follow a procedural requirement will not prevent a court from
exercising its subject matter jurisdiction unless a party can show
“some harm or prejudice caused by the failure” to follow the
procedural requirement. Carter v. Ancel, 28 Va. App. 76, 79, 502
S.E.2d 149, 151 (1998).
Marrison v. Dep’t. of Family Servs., 59 Va. App. 61, 68-69, 717 S.E.2d 146, 149-50 (2011).
As we observed with regard to Code § 16.1-296(B), Code § 16.1-296(D) “is not
prohibitive or limiting, and does not contain any manifestation of a contrary intent . . . .” Id. at
70, 717 S.E.2d at 150. Thus, we find that Code § 16.1-296(D) is procedural and directory, rather
than mandatory and jurisdictional. Moreover, appellant merely alleges that he was prejudiced
because the services provided him and reports of those services were untimely. Appellant’s
allegation is speculative and does not demonstrate he sustained harm or prejudice. 2
2
Indeed, as opposed to resulting in harm to him, the delay in the proceedings flowed
from appellant’s own actions, as he concedes. The record demonstrates that the delay was due,
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Accordingly, we find the trial court did not err in holding the termination hearing beyond the
time constraint found in Code § 16.1-296(D).
II.
Supplying timelines relating to the removal and termination proceedings involving the
four children, appellant alleges the trial court erred in hearing the matters because the statutory
time limits governing the matters were “repeatedly violated in the Culpeper Juvenile and
Domestic Relations District Court in the cases for all children.” Without advising this Court
what violations he alleges occurred, appellant contends the violations were so numerous as to
deny him due process. Appellant’s assignment of error claims, in a general fashion, that the trial
court erred in hearing the cases “after non-compliance with the applicable procedural and/or time
requirements of Title 16.1 of the Virginia Code.”
“‘The purpose of assignments of error is to point out the errors with reasonable certainty
in order to direct [the] court and opposing counsel to the points on which appellant intends to ask
a reversal of the judgment, and to limit discussion to these points.’” Yeatts v. Murray, 249 Va.
285, 290, 455 S.E.2d 18, 21 (1995) (quoting Harlow v. Commonwealth, 195 Va. 269, 271, 77
S.E.2d 851, 853 (1953)). Consequently, it is the duty of an appellant’s counsel “to ‘lay his finger
on the error’ in his [assignment of error.]’” Carroll v. Commonwealth, 280 Va. 641, 649, 701
S.E.2d 414, 418 (2010 (quoting First Nat’l Bank of Richmond v. William R. Trigg, Co., 106 Va.
327, 342, 56 S.E. 158, 163 (1907)).
at least in part, to appellant’s motions for continuance, requests for time to retain alternate
counsel, and failure to appear at a scheduled court hearing. He should not be heard to complain
on appeal about alleged harm that resulted from his own requests for delay.
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Appellant’s assignment of error and accompanying argument are insufficient to “lay his
finger” upon the trial court ruling challenged.3 Appellant asks this Court to compare the time
line with the statutory time limits and to discern for itself the violations that occurred. This we
decline to do because it is not the function of appellate courts to search the record for an error
that an appellant has failed to point out. Accordingly, we consider appellant’s assignment of
error waived, and we do not consider it.
III.
Appellant alleges the trial court erred in terminating his parental rights because, in 2010,
Dr. Anderson recommended “interventions that would potentially improve [appellant’s]
functioning as a parent,” but that CCDSS did not provide appellant with those recommended
services. Rule 5A:20(e) requires an opening brief to contain “the argument (including principles
of law and authorities) relating to each assignment of error.” Appellant’s argument in support of
this assignment of error does not contain principles of law and authorities applicable to his
contention. In Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), the
3
Moreover, we find no indication in the record that appellant asserted in the trial court
that the noncompliance with “procedural and/or time requirements” resulted in a denial of
appellant’s constitutional right to due process. “The Court of Appeals will not consider an
argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. Rule 5A:18 applies to bar
even constitutional claims. See Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897,
900 (1992). Accordingly, Rule 5A:18 bars our consideration of this aspect of the assignment of
error on appeal.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See, e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
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Supreme Court announced that when a party’s “failure to strictly adhere to the requirements of
Rule 5A:20(e)” is significant, “the Court of Appeals may . . . treat a question presented as
waived.” In this case, we find appellant’s failure to comply with Rule 5A:20(e) is significant.
Accordingly, this issue is waived, and we do not consider it on appeal.
IV.
A termination of parental rights under Code § 16.1-283(C)(2) requires clear and
convincing evidence that termination is in the best interests of the child and that
the 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 addition,
Proof that the parent . . . , without good cause, ha[s] 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 . . .
shall constitute prima facie evidence of this condition.
Id.
In his argument that the evidence was insufficient to sustain termination of his parental
rights pursuant to Code § 16.1-283(C)(2), appellant argues only that CCDSS did not make
“reasonable and appropriate efforts” to provide appellant with services prior to the termination
hearing. We thus confine our consideration of the sufficiency of the evidence to this issue.
“‘Reasonable and appropriate’ efforts can only be judged with reference to the
circumstances of a particular case. Thus, a court must determine what constitutes reasonable and
appropriate efforts given the facts before the court.” Ferguson v. Stafford Cnty. Dep’t of Soc.
Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992).
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The record proves that CCDSS provided appellant with a wide range of services with the
goal of reunifying appellant with the children. Appellant was supplied with services to help him
obtain and maintain appropriate housing. However, one year after the first three children were
removed, appellant was actually homeless. In addition, he was later serving a twelve-month jail
sentence at the time of the 2013 termination hearing. Despite the assistance provided through
therapeutic visitation and counseling for a significant period of time, appellant made no progress
toward appropriate interaction with his children and in behavior with regard to his children.
In this case, there was sufficient evidence to prove that the Department made reasonable
and appropriate efforts to assist appellant. The trial court did not err in terminating appellant’s
parental rights.
Conclusion
For the foregoing reasons, we find no error on the part of the trial court. We summarily
affirm the decision of the trial court.
Affirmed.
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Jonathan Gabriel Daniels v. Culpeper County Department of Social Services
Combined Opinion