COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
UNPUBLISHED
CIARA MALAINE GRINDLE
MEMORANDUM OPINION*
v. Record No. 1241-15-1 PER CURIAM
JANUARY 12, 2016
VIRGINIA BEACH
DEPARTMENT OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Steven C. Frucci, Judge
(Scott M. Lang; 7 Cities Law, on brief), for appellant.
(Mark D. Stiles, City Attorney; Christopher S. Boynton, Deputy City
Attorney; Elena E. Ilardi, Associate City Attorney; Kathleen A.
Keffer, Assistant CityAttorney; Sanita Swift Sherard, Guardian ad
litem for the minor child, on brief), for appellee.
Ciara Malaine Grindle (“mother”) appeals the termination of her residual parental rights
to her child, K.P., pursuant to Code § 16.1-283(C)(2). She maintains the evidence was
insufficient to support the trial court’s decision to terminate her rights because she substantially
remedied the conditions that led to K.P.’s foster care placement and because there was good
cause to excuse her failure to comply completely with the conditions for K.P.’s return. She also
asserts that various government agencies failed to make reasonable and appropriate efforts to
assist her in remedying the conditions that led to K.P.’s foster care placement. Finally, she
contends the procedures used to evaluate whether she had remedied the conditions leading to
K.P.’s removal deprived her of due process.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
Background
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.” Toms v. Hanover Dep’t of Soc. Servs., 46
Va. App. 257, 265-66, 616 S.E.2d 765, 769 (2005) (quoting Fields v. Dinwiddie Cty. 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 Fields, 46 Va. App. at 7, 614 S.E.2d at 659) (other 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)).
On February 25, 2012, the Virginia Beach Department of Human Services (“VBDHS”)
removed one-year-old K.P. from a babysitter after mother did not return at the appointed time
and the babysitter was unable to reach her. Mother had a history of substance abuse and had
begun to drink heavily and abuse prescription medications after K.P.’s birth. Although she had
briefly enrolled in a detoxification program, she left after two weeks and moved in with a friend.
On Friday, February 24, 2012, the night before K.P. was removed, mother left K.P. with
a babysitter, and stayed out all night drinking. Mother lost her cell phone, and did not return for
K.P. on February 24, 2012, or on the following day. After K.P. was removed, Lisa Wall, a Child
Protective Services (“CPS”) investigator, was not able to get in touch with mother until February
26, 2012. Wall told mother that K.P. had been removed and informed her of the time and
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location of the emergency removal hearing scheduled for Monday, February 27, 2012. Mother
failed to appear.
Mother spoke with Wall prior to the preliminary removal hearing and advised that she
would like VBDHS to investigate K.P.’s godmother, Terri Messer, as a potential placement. On
March 5, 2012, mother attended the preliminary removal hearing with Messer, and the juvenile
and domestic relations district court (“the JDR court”) granted temporary custody to Messer.
Wall informed mother she would have to be interviewed prior to visitation with K.P.
Over two weeks later, on March 22, 2012, mother called Wall about visitation. When
Wall reminded mother about the required interview, mother stated she would call back the
following day. Mother did not call, and when Wall tried to reach mother, her phone had been
disconnected.
Nearly a month later, on April 17, 2012, mother left a voicemail with Wall. Because
Wall knew that mother had a criminal hearing on April 18, 2012, Wall went to court so that she
could speak with mother. Mother failed to appear for the hearing, and a capias was issued for
her arrest. On April 23, 2012, mother called Wall about visitation. Wall reiterated that mother
would have to meet with Wall, and mother made an appointment for a meeting. Wall waited for
mother for three hours, and called mother multiple times, but mother failed to appear for the
appointment.
While K.P. was in Messer’s custody, mother continued to drink, was arrested and
convicted of several criminal charges, and was incarcerated. Because she was on probation for
an earlier conviction at the time of the 2012 convictions, her suspended sentence was revoked.
When mother was incarcerated, Messer decided she was not a viable placement for K.P.,
and K.P. was placed in foster care on May 3, 2012. Mother remained incarcerated, and a year
later, on June 14, 2013, VBDHS petitioned the JDR court to terminate mother’s parental rights.
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After the petition was granted, mother appealed to circuit court. At the time of the hearing in
circuit court on September 16, 2013, mother was still incarcerated, but predicted she would be
released in November 2014.
At the conclusion of the hearing, the trial court continued the case to give mother an
opportunity to be released from incarceration and to take advantage of the services offered in a
halfway house and through her probation officer. The trial court noted that if mother did not
comply by the time of the next hearing, her parental rights would be terminated.
A few months before mother’s release from incarceration in early January 2015,
Dr. Jennifer Gildea performed a psychological and parental evaluation. Dr. Gildea concluded
that mother suffered from a mood disorder and was possibly bi-polar. She also noted that mother
had a history of alcohol dependence, as well as drug abuse. Dr. Gildea stated that mother needed
further psychiatric evaluation and monitoring, substance abuse intervention and support, and
continued parenting education upon her release from incarceration.
In Dr. Gildea’s opinion, even if mother were able to meet all of her service plan goals, the
effort required to establish and maintain a relationship with K.P. would be “too disruptive and
stressful” for the child, who, at that time, was three years old. Dr. Gildea noted that K.P. had
lived with her foster parents for an extended period of time and had bonded with them. To
establish a parenting relationship with K.P., mother would require “intensive, long-term . . .
services and support.” Dr. Gildea concluded that mother needed “long-term attachment based
therapy, parental coaching, and increasing contact with her child in order to attempt to establish a
parent-child attachment.” Even with that support, Dr. Gildea believed that establishing a
relationship with mother would be potentially detrimental to the child’s ability to form secure
attachments in the future. Dr. Gildea recommended against the goal of reunification between
mother and K.P. in the interests of the child’s well-being.
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Assuming that reunification were to occur, however, Dr. Gildea stated that mother would
need to establish that her mood is stable, that she is compliant with
her own treatment regimen, that she has been abstinent from
substances while living in the community for at least nine months,
that she has established secure and stable housing, and that she is
not engaging in unhealthy relationship dynamics.
When mother appeared before the trial court on January 22, 2015, the trial court again
agreed to continue the case because mother had been released from incarceration for only a
couple of weeks. Shortly after the January hearing, social worker Rhonda Hoffman spoke with
mother by phone and advised her that she needed to have a mental health evaluation and to enroll
in a substance abuse program. Hoffman referred mother to the Chesapeake Community Services
Board for services because mother was living in Chesapeake following her release.
Hoffman spoke with mother several times from late January through early February.
During that time, Hoffman repeatedly advised mother that mental health and substance abuse
evaluations needed to take priority over her other goals; however, mother indicated she could not
attend the substance abuse programs because they interfered with her job. On February 10,
2015, mother questioned why she needed to attend a program when she had already completed a
program while she was incarcerated. Hoffman explained that the program was necessary
because she was no longer in a controlled environment and Dr. Gildea believed she was at risk
for relapse.
Hoffman scheduled a meeting for mother for early March, but mother missed the
appointment. Mother called Hoffman and explained she was unable to attend the meeting
because she had received a promotion at work. Mother asked Hoffman to call her. Hoffman
called mother back on March 16, 17, 20, 2015. On each occasion, Hoffman left a voicemail, but
mother did not return the calls. Finally, on March 31, 2015, Hoffman wrote mother and
explained that mother needed to meet with Hoffman to sign releases so that Hoffman could
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speak with mother’s probation officer and service providers. Hoffman also noted she had
funding to perform a hair follicle drug test, and asked that mother provide her with a status on
her therapy. Hoffman notified mother she was scheduling the meeting for April 3, 2015.
On April 9, 2015, mother called Hoffman and told her she had just received the letter.
Mother stated she had obtained health insurance through her job and she was planning to start a
substance abuse program. On April 14, 2015, mother completed the hair follicle test. The test
results were “clean.” However, when Hoffman spoke with mother again on May 13, 2015,
mother stated she was not able to undertake the substance abuse program because she had
changed jobs and no longer had insurance.
By the time mother appeared in court again on May 18, 2015, she had not completed the
psychiatric evaluation or an intensive substance abuse program. Instead, she had only attended
the weekly support group meetings arranged by her probation officer.
Mother testified that she called the Community Services Board after she met with her
probation officer upon her release and that the Board told her probation officer mother could
“come and do an intake.” Mother stated the Board informed her that, because she was obtaining
private insurance through her employment, the services were unavailable. She stated that she
was in the process of trying to regain her driver’s license but could only do after she had paid a
percentage of her fines. She acknowledged that she faced between fifteen and twenty years of
further incarceration if she violated her probation.
At the time of the May hearing, K.P. was over four years old and had no relationship with
mother. She had been with her foster parents since she was fifteen months old. She thrived
under their care and bonded with them, referring to them as “Mommy” and “Daddy.” To K.P.’s
understanding, her foster parents were her only parents, and their other children were her
siblings.
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At the conclusion of the hearing, the trial court found that mother had failed to have an
evaluation for her mental health issues or to enroll in a treatment program for substance abuse.
While the trial court acknowledged that mother was attending weekly support meetings, it noted
that she had failed to seek the counseling required by VBDHS. The trial court found further that
mother’s failure to seek treatment was not based upon a lack of financial resources, but rather, on
the basis that mother did not feel the treatment was necessary. Because mother was not “on the
track” to achieve stability with her mental health and substance abuse issues within nine months
of her release from incarceration, the trial court concluded termination was in K.P.’s best
interests.
This appeal followed.
Analysis
I. and II.
Mother asserts that the trial court erred by terminating her parental rights because she
substantially remedied the conditions that led to K.P.’s removal and because she had “good
cause” for failure to remedy the conditions completely. She also asserts that the trial court erred
by terminating her parental rights because reasonable and appropriate efforts were not made to
provide her with the services she required to remedy those conditions.
We disagree. Pursuant to Code § 16.1-283(C)(2),
[t]he residual parental rights of a parent or parents of a child placed
in foster care . . . 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:
....
[t]he 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,
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notwithstanding the reasonable and appropriate efforts of
social, medical, mental health or other rehabilitative agencies
to such end. Proof that the parent 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.
Here, mother had multiple opportunities to prove her ability to remedy the conditions
leading to K.P.’s foster care placement, and failed to do so. Her initial response to K.P.’s
placement was to continue drinking and to commit new criminal offenses. Only after she was
incarcerated and in a controlled environment did she discontinue her abuse of drugs and alcohol.
Despite VBDHS providing her with psychiatric services during her incarceration, she failed to
stabilize her health through intensive mental health and substance abuse counseling upon her
release.
Finally, while the trial court did not base its termination decision on mother’s extended
incarceration, it was entitled to consider her incarceration, as well as the potential for future
incarceration, in reaching the conclusion that termination was in K.P.’s best interest.
While long-term incarceration does not, per se, authorize
termination of parental rights . . . it is a valid and proper
circumstance which, when combined with other evidence
concerning the parent/child relationship, can support a court’s
finding by clear and convincing evidence that the best interests of
the children will be served by termination.
Ferguson v. Stafford Cty. Dep’t of Soc. Servs.,14 Va. App. 333, 340, 417 S.E.2d 1, 5 (1992).
“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.”
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Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495
(1990).
Virginia law recognizes the “maxim that, sometimes, the most
reliable way to guage a person’s future actions is to examine those
of his past.” Petry v. Petry, 41 Va. App. 782, 793, 489 S.E.2d 458,
463 (2003). “As many courts have observed, one permissible
‘measure of a parent’s future potential is undoubtedly revealed in
the parent’s past behavior with the child.’” Id. (citation omitted).
“No one can divine with any assurance the future course of human
events. Nevertheless, past actions and relationships over a
meaningful period serve as good indicators of what the future may
be expected to hold.” Winfield v. Urquhart, 25 Va. App. 688,
696-97, 492 S.E.2d 464, 467 (1997) (citations omitted).
Toms, 46 Va. App. at 267-68, 616 S.E.2d at 770.
Here, in addition to a long history of substance abuse and mental health issues, mother
had been unable to care for her older two children, and, despite several continuances,
acknowledged she was not yet ready to assume custody of K.P. at the time of the termination
hearing. While mother had taken steps toward achieving sobriety during the three years since
K.P.’s removal, she had refused to recognize the need for intensive substance abuse therapy or to
address her mental health issues. Without such support, the trial court found that mother was
unable to provide K.P. with the stable environment necessary for her well-being.
By the time of the termination hearing, K.P. was four years old and had bonded with her
foster parents. She referred to her foster parents as her mother and father, and had no
relationship with her mother. K.P. was thriving in the foster parents’ care, and the foster parents
expressed their desire to adopt her.
Accordingly, clear and convincing evidence proved that mother had, without good cause,
failed to make substantial progress towards elimination of the conditions which led to K.P.’s
foster care placement and that termination of mother’s parental rights was in K.P.’s best
interests.
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The evidence also supported the trial court’s conclusion that mother’s failure to remedy
the conditions leading to K.P.’s removal did not result from the failure of the VBDHS or other
agencies to provide services to mother. Hoffman repeatedly directed mother toward the services
necessary for mother to obtain mental health and substance abuse counseling, but mother failed
to cooperate with those efforts. Instead, mother either questioned the necessity for such services
or stated that she was seeking them independently through her private insurance carrier.
Thus, clear and convincing evidence proved that mother failed to remedy substantially,
without good cause, the conditions leading to K.P.’s removal, “notwithstanding the reasonable
and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such
end.”
III.
Finally, mother contends that she was deprived of due process because the conditions
imposed upon her to reunite with K.P. “could not have possibly been met in their entirety.” She
maintains she was not given a “fair opportunity to establish her case and [to] show that she [could]
meet the conditions imposed.”
Appellant asserts the deprivation of her due process rights for the first time on appeal.
Because she did not present this argument to the trial court, she has failed to preserve it.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18.
Under this rule, a specific argument must be made to the trial court
at the appropriate time, or the allegation of error will not be
considered on appeal. A general argument or an abstract reference
to the law is not sufficient to preserve an issue. Making one
specific argument on an issue does not preserve a separate legal
point on the same issue for review.
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Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
“This rule applies to issues involving constitutional principles.” West v. Commonwealth, 43
Va. App. 327, 336, 597 S.E.2d 274, 278 (2004).
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, 41 Va. App. at 761, 589 S.E.2d at 448.
Accordingly, the trial court’s decision is summarily affirmed. See Rule 5A:27.
Affirmed.
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