COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McCullough and Senior Judge Bumgardner
UNPUBLISHED
KENNETH STURGILL
MEMORANDUM OPINION*
v. Record No. 0336-14-3 PER CURIAM
JULY 8, 2014
WISE COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF WISE COUNTY
Tammy S. McElyea, Judge
(Charles Herbert Slemp, III; Slemp Law Office, PLLC, on brief), for
appellant.
(Karen T. Mullins; J. Brent Fleming, Guardian ad litem for the minor
child; Wise County Attorney’s Office; Fleming & Collins, on brief),
for appellee.
Kenneth Sturgill (father) appeals an order terminating his parental rights to his child, H.S.
Father argues that the circuit court erred by (1) terminating his parental rights “when the child was
placed with a relative and a goal of relative placement is achievable and a less restrictive
alternative;” (2) terminating his parental rights and approving a permanency planning order because
father “was not involved in the preparation of a foster care plan that changed the goal from relative
placement to adoption of the child;” and (3) terminating his parental rights even though res judicata
applies because in the first trial, the circuit court “found that termination of parental rights is
impermissible if the child is placed with a relative,” but in the second trial, the circuit court held
otherwise, despite the fact that the case involved the same parties and the same remedy was sought
in both cases. Upon reviewing the record and briefs of the parties, we conclude that this appeal is
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule
5A:27.
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).
Father has three children, M.S., D.S., and H.S. The Department of Social Services (the
Department) removed the children from their parents’ home in 2006. H.S. was two years old at
the time of the removal. Initially, the Department’s goal was relative placement, but it was later
changed to termination of parental rights. The Department changed the goal again in order to
give the parents additional time to complete services. The goal was to return the children home,
which was done in May 2008 on a trial basis. The Department provided numerous services, but
problems developed. The Department removed the children from the home and again filed
petitions to terminate parental rights for all three children. The Wise County Juvenile and
Domestic Relations District Court (the JDR court) approved the petitions. M.S. was in a
non-relative foster home, whereas D.S. and H.S. were together in a relative placement. The
parents appealed to the circuit court, which ultimately approved the plan to terminate father’s
parental rights to M.S. The circuit court denied the petitions to terminate father’s parental rights
to D.S. and H.S. because they were placed with a relative. Father appealed the termination
ruling, as to M.S., to this Court, which summarily affirmed the circuit court’s ruling. See Sturgill
v. Wise Cnty. Dep’t of Soc. Servs., Record. No. 1293-10-3 (Va. Ct. App. Mar. 21, 2011).
D.S. and H.S. continued in foster care in a relative placement until June 2010, when they
moved into a therapeutic foster home. Father was incarcerated in 2010 and received an active
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sentence of five and one-half years. Once he went to prison, the Department did not offer him
any services.
The maternal grandparents petitioned for custody of D.S. The JDR court granted them
custody, and D.S. was placed with them. Subsequently, the maternal grandparents petitioned for
custody of H.S., who remained in their home for approximately six months. Due to behavioral
problems, H.S. left their home in June 2012.
In October 2012, a family partnership meeting was held to discuss moving the child to
other relatives. Father did not participate in the meeting because he was in prison. In November
2012, Tim and Brenda Anderson resumed custody of H.S.1 In December 2012, the Department
prepared a foster care plan with a goal of relative placement.
In March 2013, a social worker wrote appellant and asked him if he would agree to sign
an entrustment agreement for H.S. The social worker explained that the Andersons wanted to
adopt H.S. If father did not agree to sign the entrustment agreement, then the Department would
file a petition to terminate his parental rights. Father’s attorney communicated with the
Department and told them that father would not sign the entrustment agreement.
In June 2013, the foster care plan was changed to adoption. In July 2013, the Department
filed a petition to terminate father’s parental rights. On August 20, 2013, the JDR court
terminated father’s parental rights to H.S. and approved the foster care plan with the goal of
adoption. Father appealed to the circuit court.
On January 10, 2014, the circuit court heard evidence and argument. At the conclusion
of the Department’s evidence, father made a motion to strike, which was denied. Father testified
and discussed the numerous programs he completed while in prison. He also notified the circuit
court that his expected release date was January 2015. He admitted that he could not take
1
H.S. had previously been placed in the Andersons’ home.
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custody of H.S. immediately upon his release from prison and asked for some time. After
presenting his evidence, he renewed his motion to strike, which was denied. The circuit court
terminated father’s parental rights pursuant to Code § 16.1-283(E)(i)2 and approved the foster
care plan with the goal of adoption. This appeal followed.
ANALYSIS
“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).
When considering termination of 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 463.
Assignment of error #1
Father argues that the circuit court erred by terminating his parental rights because the
child was placed with relatives and relative placement is an alternative to termination of parental
rights.
Prior to 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
2
The residual parental rights of a parent or parents of a child who is
in the custody of a local board . . . may be terminated by the court
if the court finds, based upon clear and convincing evidence, that it
is in the best interests of the child and that (i) the residual parental
rights of the parent regarding a sibling of the child have previously
been involuntarily terminated . . . .
Code § 16.1-283(E)(i).
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relatives in comparison to other placement options.” Logan, 13 Va. App. at 131, 409 S.E.2d at
465. “Before termination of parental rights by the court, the agency seeking termination has an
affirmative duty to investigate all reasonable options for placement with immediate relatives.”
Sauer v. Franklin Cnty. Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994)
(citations omitted).
Here, the Department had been working with the family for years. H.S. had been in
foster care for almost eight years by the time the circuit court heard this termination case. Over
the years, the Department had placed H.S. with various relatives and foster homes. It tried to
place H.S. in the same home as D.S. with their maternal grandparents; however, due to
behavioral problems, H.S. had to be removed from the home. The Andersons, who previously
had custody of H.S., agreed to take H.S. back into their home, but sought a permanent solution
for H.S.
Contrary to appellant’s argument, the Department sought many alternative placements for
H.S. In 2013, the Department found a permanent placement for H.S. with the Andersons, who
wanted to adopt him. Father’s incarceration prevents him from being able to assume custody of
H.S. now or in the near future. The circuit court held that it was in the child’s best interests to
have a permanent placement with the Andersons, especially considering the length of time that
the child has been 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 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).
The circuit court did not err in terminating father’s parental rights and approving the
foster care plan of adoption.
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Assignment of error #2
Father argues that the circuit court erred in terminating his parental rights because the
Department did not involve father in the foster care plan as required by Code § 16.1-281(A),
which states:
The representatives of such department or agency shall involve the
child’s parent(s) in the development of the plan, except when
parental rights have been terminated or the local department of
social services or child welfare agency has made diligent efforts to
locate the parent(s) and such parent(s) cannot be located, and any
other person or persons standing in loco parentis at the time the
board or child welfare agency obtained custody or the board placed
the child.
Although the Department did not offer father any services while he was in prison and did
not meet with him to discuss the foster care plan, he was involved in the process. Father
received notice of all of the Department’s plans regarding H.S., and he participated in the JDR
court’s proceedings and the circuit court’s proceedings when the plans were discussed. His
attorney advised him of developments with the case. A social worker contacted father in March
2013 to ask him to sign an entrustment agreement. The social worker also advised father that if
he did not sign the entrustment agreement, then the Department was seeking to terminate his
parental rights. Father’s counsel met with father to review the Department’s letter. Father’s
counsel advised the Department that father refused to sign the entrustment agreement, so the
Department filed a petition to terminate his parental rights in July 2013. The circuit court noted
that the Department “made an effort to involve the parent” and wrote him about the plan for
adoption. The circuit court explained that “[o]n its face, the plan indicates the parent was
involved.” Father “was aware of the change in goal” and “had the ability through his counsel if
he wished to have input with regard to the contents of this letter to do so.” The circuit court also
acknowledged that father’s involvement was “limited” due to his incarceration. Father’s rights
were not violated pursuant to Code § 16.1-281. Based on the record, the circuit court did not err
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in determining that the Department complied with its statutory obligation to involve father in the
foster care plan.
Assignment of error #3
Father argues that the circuit court erred in terminating his parental rights to H.S. because
“the issue presented herein is precluded from relitigation based upon the doctrine of res
judicata.”
Father contends the Department previously sought to terminate father’s parental rights,
but the circuit court denied the petition in 2010 because the child was in a relative placement.
Father asserts that the same facts apply to this situation because it is the same parties, the same
cause of action, and the same remedies sought.
In actions commenced after July 1, 2006, Rule 1:6 governs claims
of res judicata, stating in pertinent part:
“A party whose claim for relief arising from identified conduct, a
transaction, or an occurrence, is decided on the merits by a final
judgment, shall be forever barred from prosecuting any second or
subsequent civil action against the same opposing party or parties
on any claim or cause of action that arises from that same conduct,
transaction or occurrence . . . .”
Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 428, 719 S.E.2d 329, 355 (2012)
(emphasis added in original).
In 2010, the Department sought to terminate father’s parental rights to his children
pursuant to Code § 16.1-283(B) and (C). In 2014, the Department sought to terminate father’s
parental rights to H.S. pursuant to Code § 16.1-283(E)(i). Although the ultimate remedy of
termination of parental rights is the same, the reason for seeking the termination has changed.
Therefore, the two matters are different.
Furthermore, the circumstances have changed since 2010. Unlike the previous situation
in 2010 when H.S. was living with relatives, H.S. is now in a placement with the Andersons,
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who “happen to be relatives, but they are not willing to be a permanent placement other than
through adoption.” The Andersons told the Department that they were only willing to care for
H.S. by adopting him because they previously tried a custodial situation, but it did not work. As
the circuit court noted, H.S. “deserves permanency and security.” Since 2010, H.S. has been in
several homes and has had behavioral issues. The circuit court explained, “To leave [H.S.] in
foster care even if the Anderson’s [sic] were willing to accept that type of a situation does not
solve a lot of the issues that [H.S. has] encountered over the years that have led to deteriorating
behavior, [sic] that have led to him having difficulties.”
Accordingly, the doctrine of res judicata does not apply. The evidence proved that
termination of father’s parental rights to H.S. was in the child’s best interests, and the circuit
court did not err by approving the Department’s petition and foster care plan.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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Kenneth Sturgill v. Wise County Department of Social Services
Combined Opinion