Octavila Garcia v. Loudoun County Department of Family Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Chafin and Senior Judge Annunziata

OCTAVILA GARCIA
UNPUBLISHED

v. Record No. 2285-13-4

LOUDOUN COUNTY
DEPARTMENT OF FAMILY SERVICES MEMORANDUM OPINION*
PER CURIAM
NOVEMBER 12, 2014
OCTAVILA GARCIA

v. Record No. 2286-13-4

LOUDOUN COUNTY
DEPARTMENT OF FAMILY SERVICES

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge

(Buta Biberaj; Matthew P. Snow; Anthony I. Shin; Biberaj & Snow,
PC, on brief), for appellant.

(Sandra A Glenney, Assistant County Attorney; Courtney R.
Sydnor, Deputy County Attorney, on brief), for appellee.

(Ella Ann D’Amico, on brief), Guardian ad litem for the minor
children.

On September 3, 2013, the trial court terminated the residual parental rights of Octavila

Garcia (appellant) to her daughters, P.G. and C.G., pursuant to Code § 16.1-283(E). On appeal of

this decision, appellant contends: 1) the evidence was insufficient to support termination under

Code § 16.1-283(E); 2) the evidence was insufficient to support termination under Code

§ 16.1-283(C)(2); 3) the trial court erred in not finding that Loudoun County Department of Family

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Services (LCDFS) did not comply with statutory and administrative mandates, as well as

requirements imposed by the foster care service plans for the children; 4) the trial court erred in

failing to find LCDFS did not comply with statutory and constitutional requirements regarding

placement of the children with relatives; and 5) the trial court erred in failing to find LCDFS

committed malfeasance designed to sabotage reunification of the family. Upon reviewing the

record and briefs of the parties, we conclude these appeals are without merit. Accordingly, we

summarily affirm the decision of the trial court. See Rule 5A:27.1

ANALYSIS

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

1
Appellant has filed a “Motion to Withdraw as Counsel for the Appellant/Request for
Alternate/Additional Counsel [and] Motion for Extension of Time to File Reply Briefs.”
Appellee and the guardian ad litem have filed responses to those motions. Appellant has filed a
reply to the responses. Upon consideration whereof, the motions are denied.

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child’s best interests.’” Id. (quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795

(1990)).

I.

Under Code § 16.1-283(E)(i),

[t]he residual parental rights of a parent . . . of a child who is in the
custody of a local board or licensed child-placing agency 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 . . . .

On review of the sufficiency of the evidence to support the trial court’s decision to terminate

appellant’s parental rights pursuant to Code § 16.1-283(E)(i), we need consider only whether P.G.

and C.G. were in custody of LCDFS at the time of termination, whether appellant’s rights to a

sibling of P.G. and C.G. had been involuntarily terminated, and whether clear and convincing

evidence proved the terminations were in the best interests of P.G. and C.G.

Appellant’s four daughters, S.G., K.G., P.G., and C.G., came into the custody of LCDFS on

October 1, 2009 and were placed in foster care. The evidence was uncontroverted that appellant’s

residual parental rights to S.G. and K.G., the older two daughters, were terminated on January 4,

2010 pursuant to Code § 16.1-283(B) by the Loudoun County Juvenile and Domestic Relations

District Court (juvenile court).2 Appellant did not appeal the terminations regarding S.G. and K.G.3

2
The record demonstrates that the court proceedings relating to S.G. and K.G. were
separated from those regarding P.G. and C.G. following dispositional orders entered on
December 4, 2009 by the juvenile court. The orders found S.G. and K.G. had been abused or
neglected and that P.G. and C.G. were at risk for abuse or neglect if returned to the custody of
appellant and their father. Appellant appealed the December 4, 2009 orders regarding P.G. and
C.G., but not the orders concerning S.G. and K.G.
3
In her brief, appellant raises a number of arguments challenging the termination of her
parental rights regarding S.G. and K.G. She argues LCDFS acted improperly and committed
malfeasance pertaining to S.G. and K.G. and in the resulting termination of appellant’s parental
rights to them. She claims she did not receive effective assistance of counsel in the termination
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 Appellant contends LCDFS was obligated to provide her with services toward the goal of

reunification with P.G. and C.G., but LCDFS failed to do so. The terminations regarding P.G. and

C.G., however, did not require a showing that LCDFS provided services to appellant to facilitate

reunification with them. Indeed, Virginia’s statutory scheme for termination of parental rights does

not require a “waiver of reasonable efforts” by the agency, as appellant suggests, or provide that a

termination under Code § 16.1-283(E) may occur only if there was no prior court order regarding

services to be provided to the parent.

Appellant alleges that permitting a termination under Code § 16.1-283(E) has the effect of

allowing a social services agency to ignore court orders to provide a parent with rehabilitative

services. However, neither in the trial court nor on appeal has appellant argued that Code

§ 16.1-283(E) is unconstitutional.

Appellant argues that her constitutional right to due process was violated by the decision of

LCDFS to pursue terminations for P.C. and C.G. pursuant to Code § 16.1-283(E) without advance

notice of its intent to do so. We note that on November 2, 2012, the juvenile court terminated

proceedings regarding S.G. and K.G. These issues are not germane to our review of the Code
§ 16.1-283(E)(i) terminations pertaining to P.G. and C.G.

Rule 1:6 provides:

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, whether or not the legal theory or rights
asserted in the second or subsequent action were raised in the prior
lawsuit, and regardless of the legal elements or the evidence upon
which any claims in the prior proceeding depended, or the
particular remedies sought.

The trial court thus did not err in denying appellant the opportunity in the present proceeding to
litigate issues regarding the terminations regarding to S.G. and K.G.
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appellant’s parental rights to P.G. and C.G. pursuant to Code § 16.1-283(C)(2) and (E). On her

appeal de novo to the trial court, she thus had notice that LCDFS was seeking termination under

Code § 16.1-283(E). Thus, her claim of lack of notice is not supported by the record.

As a subpart to her second assignment of error, appellant states that the trial court erred in

finding the termination of appellant’s parental rights to P.G. and C.G. was in the children’s best

interests. Nonetheless, appellant does not point to any facts or circumstances in the record to

demonstrate the termination rulings were not in the children’s best interests. Appellant focuses

instead upon LCDFS’s alleged failure to assist her in reuniting with her children, not upon how

legal separation from appellant would affect P.G. and C.G.

In determining what is in the best interests of a child, this Court has stated:

[A] court must evaluate and consider many factors, including the
age and physical and mental condition of the child or children; the
age and physical and mental condition of the parents; the
relationship existing between each parent and each child; the needs
of the child or children; the role which each parent has played, and
will play in the future, in the upbringing and care of the child or
children; and such other factors as are necessary in determining the
best interests of the child or children.

Barkey v. Commonwealth, 2 Va. App. 662, 668, 347 S.E.2d 188, 191 (1986).

P.G. was born on September 6, 2000, and C.G. was born on February 10, 2003. At the

time of removal from appellant’s custody in October 2009, P.G. was nine years old and C.G. was

seven. Four years passed between the time of the children’s placement in foster care and the

termination decisions in September 2013. At the time of removal of appellant’s four daughters,

it was determined that S.G. and K.G. had been subjected to several forms of abuse, and P.G. and

C.G. were at risk for abuse and neglect if permitted to remain with appellant and the children’s

father. Appellant gave birth to another child, I.G., on February 24, 2010. In an action to allow

Carmen Estrada, a non-family member, to assume legal and physical custody of I.G., appellant

executed an affidavit indicating she and the children’s father had no financial means to support
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the child and there were no family members capable of doing so. The parental rights of P.G. and

C.G.’s father had been terminated, and he was serving a sentence for the rape of K.G. Appellant

was convicted of child abuse for her concealment of the father’s sexual abuse of K.G. Although

appellant had complied with some of the requirements of the foster care service plans,

appellant’s relationship with P.G. and C.G. had shown little improvement over the four years

they had been in foster care. Both P.G. and C.G. stated that they love appellant, but they also

wish to be adopted. No suitable family members were available to care for P.G. and C.G.

We recognize that “‘[t]he termination of [residual] parental rights is a grave, drastic and

irreversible action.’” Helen W. v. Fairfax Cnty. Dep’t of Human Dev., 12 Va. App. 877, 883,

407 S.E.2d 25, 28-29 (1991) (quoting Lowe v. Dep’t of Public Welfare of Richmond, 231 Va.

277, 280, 343 S.E.2d 70, 72 (1986)). However, “[i]t 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 responsibilities.” Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535,

540, 394 S.E.2d 492, 495 (1990).

Thus, we conclude there was clear and convincing evidence that termination of

appellant’s parental rights to P.G. and C.G. was in the children’s best interests and the trial court

did not err in finding the necessary requirements for termination under Code § 16.1-283(E).

II.

Appellant argues the evidence did not support termination of her parental rights pursuant

to Code § 16.1-283(C)(2). However, the trial court did not order termination on this basis, and

we do not consider it on appeal.

III., IV., and V.

With regard to her third and fourth assignments of error, appellant cites pages of the

appendix or trial transcript upon which she claims to have preserved the issues for appellate

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review. The cited pages are to portions of opening statements made by appellant or the attorney

for LCDFS, or to appellant’s direct examination of Estrada. None of these pages reflect an

objection or argument regarding the issues raised in the third and fourth assignments of error.

Concerning the fifth assignment of error, appellant provides no citation to the appendix or

transcript to indicate where the issue was preserved. Moreover, appellant supplies this Court

with no argument or citation to legal authority in support of the third and fifth assignments of

error.

Rule 5A:20, which states the requirements for an appellant’s opening brief, provides that

the brief shall contain “[a] statement of the assignments of error with a clear and exact reference

to the page(s) of the transcript, written statement, record, or appendix where each assignment of

error was preserved in the trial court.” Rule 5A:20(c). Rule 5A:20(e) requires that an opening

brief contain “[t]he standard of review and the argument (including principles of law and

authorities) relating to each assignment of error.”4

Rule 5A:1A(a) provides that “[t]his Court may dismiss an appeal or impose such other

penalty as it deems appropriate for non-compliance with these Rules.” In Jay v. Commonwealth,

275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), the Supreme Court found that when a party’s

failure to strictly adhere to the requirements of Rule 5A:20 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(c) and (e) is significant. Accordingly, we consider waived the arguments raised

in assignments of error three, four and five.

4
Appellant had ample opportunity to correct the deficiencies in her brief. Initially,
appellant filed an opening brief on March 24, 2014, but filed no appendix. On April 17, 2014,
we granted appellant an extension of time until May 2, 2014 to file an appendix, as well as an
amended opening brief that complied with the requirements of Rule 5A:20. Appellant did not
file an appendix or an amended opening brief in a timely manner. This Court dismissed the
appeals on June 20, 2014 for failing to file the appendix and amended brief, but we granted
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 CONCLUSION

For the foregoing reasons, we summarily affirm the trial court’s ruling. See Rule 5A:27.

Affirmed.

appellant’s petition for rehearing and reinstated the appeals on August 14, 2014. The amended
brief appellant filed subsequently contains the numerous deficiencies herein noted.
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