COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Senior Judge Frank
Argued at Newport News, Virginia
UNPUBLISHED
KENNETH DAVIS
MEMORANDUM OPINION* BY
v. Record No. 0272-17-1 JUDGE ROBERT J. HUMPHREYS
JANUARY 30, 2018
CITY OF HAMPTON DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Charles E. Haden for appellant.
Kimberly E. Karle, Assistant City Attorney (Vanessa T. Valldejuli,
Hampton City Attorney; Tiffany N.E. Sullivan, Guardian ad litem
for the minor children; The O’Brien Law Firm, PLLC, on brief),
for appellee.
Kenneth Davis (“father”) appeals the decision from the Circuit Court of the City of
Hampton (“circuit court”) terminating his parental rights pursuant to Code § 16.1-283(C). He
argues that Hampton Department of Social Services (“DSS”) failed to establish by clear and
convincing evidence that it was in the best interests of his children, C.D. and E.D., to terminate
their father’s parental rights.
I. BACKGROUND1
On October 19, 2015, the DSS sought emergency removal of two children, C.D. and
E.D., from the custody of their biological parents, father and Rebecca Ann Davis (“mother”). On
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
No transcript was provided, however appellant included a written statement of facts
pursuant to Rule 5A:8(c).
December 1, 2015, the Hampton Juvenile and Domestic Relations District Court (“JDR court”)
entered adjudicatory orders finding C.D. and E.D. were at risk of being abused or neglected by a
parent per Code § 16.1-241(A)(2a) and ordering they be placed in foster care pending
completion of foster care plans. These plans were filed on December 14, 2015, and had initial
concurrent goals of “return to parent” or “relative placement.”
A later review hearing, conducted pursuant to Code § 16.1-282 on April 19, 2016,
reiterated this goal and scheduled a permanency planning hearing for September 6, 2016. At this
permanency planning hearing, however, the JDR entered an order disapproving the return to
parent or relative placement goals and scheduled a further hearing for September 27, 2016. At
the September 27, 2016 hearing, the JDR court entered an order approving the goal of adoption
and directing DSS to file petitions seeking to terminate father and mother’s parental rights.
These rights were terminated at a subsequent hearing on November 1, 2016. Both father and
mother appealed this decision to the circuit court.
A de novo hearing was held on January 19, 2017, in the circuit court. Neither father nor
mother were present but were represented by attorneys. The children were represented by their
Guardian ad litem Tiffany N.E. Sullivan. The sole witness at the hearing, Calandra Cooke
(“Cooke”), a social worker for DSS, testified that the Davis family had come to the attention of
DSS when E.D. tested positive for Oxycodone at birth. When questioned by DSS, mother had
admitted to taking Oxycodone because she had a prescription for chronic pain. She also
admitted to taking Methadone, which she was not prescribed.
Cooke also testified that a protective order was obtained following physical violence
between father and mother which occurred in the presence of the children. The first sign of this
violence was when a DSS worker observed a verbal dispute between the pair and also noted that
father had a pistol in his waistband at the time. More violent incidents were observed when the
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family was forced to leave their home. The City of Hampton placed a notice on the Davises’
household warning it would not be habitable unless certain repairs were completed. This notice
precipitated a move to the Super 8 Motel in Hampton, where Hampton police responded to a
domestic violence call on October 10, 2015. Mother was arrested for assault and battery. A
protective order was entered prohibiting further acts of family violence. However, police were
called back to the motel the very next day where mother was again arrested for assault and
battery and for violation of the protective order. The day following this second arrest, October
12, 2015, the Super 8 motel staff asked mother to leave the premises as she was yelling at and
harassing staff members. DSS staff visited the family’s hotel room that day and found it in
disarray, with empty prescription bottles strewn about. Unable to stay at the motel, father took
the children to live with his niece, who also resided in Hampton.
DSS organized a October 21, 2015 family engagement meeting where the risks to the
children of mother’s drug use, additional substance abuse, and the frequent occurrences of
domestic violence were discussed. The meeting concluded with an arrangement where the
children would be sent to live with a relative in Hampton while father and mother would engage
in family stabilization services. However, father and mother attempted to take the children from
the relative on October 28, 2015, prompting a call to the Hampton police. This altercation,
followed by the parents’ continued lack of cooperation with the services offered, prompted DSS
to seek the emergency removal order and place the children in foster care.
DSS offered several programs to facilitate return of the children to father and mother,
including drug screening and rehab, parenting classes, supervised visitation with the children,
and a family reunification and preservation program. However, father and mother did not avail
themselves of most of these services and missed several drug screening appointments. During
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this time frame father was disabled and receiving social security disability payments, while
mother was unemployed.
Father completed an offered parenting course between January and March of 2016.
However, he did not engage in any other services, perhaps partly due to medical issues, including
a heart condition and a surgery on July 29, 2016. The Hampton-Newport News Community
Services Board refused to allow him to participate in one drug treatment program based on his
past behavior in the program. He was referred to a different program but never attended. Father
moved to New York on September 13, 2016. He notified DSS that he was engaged in a
substance abuse program in New York but failed to submit any evidence of this to DSS.
Meanwhile, mother was arrested on drug charges and incarcerated.
DSS attempted to place the children with a relative, but could not find one available.
Father suggested several relatives, each of which was unable to assume custody.
Following Cooke’s evidence, father’s counsel made a motion to strike the evidence
which was denied. Counsel admitted that there were serious deficiencies with father’s
compliance with the foster plan, but that it did not follow that termination of father’s rights was
in the best interests of the children.
The circuit court ordered termination of the residual parental rights pursuant to Code
§ 16.1-283(C) and entered permanency planning orders with the goal of adoption for the
children, pursuant to Code § 16.1-282.1.
II. ANALYSIS
A. Standard of Review
“This Court views the facts, and all reasonable inferences from those facts, in the light
most favorable to the party prevailing below.” Rubino v. Rubino, 64 Va. App. 256, 262, 767
S.E.2d 260, 263 (2015).
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“In matters of custody, visitation, and related child care issues, the court’s paramount
concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387
S.E.2d 794, 795 (1990). “A trial court’s determination of matters within its discretion is
reversible on appeal only for an abuse of that discretion, . . . and a trial court’s decision will not
be set aside unless plainly wrong or without evidence to support it.” Id. at 328, 387 S.E.2d at
795 (citations omitted).
“While it may be occasionally necessary to sever the legal relationship between parent
and child, those circumstances are rare. Statutes terminating the legal relationship between
parent and child should be interpreted consistently with the governmental objective of
preserving, when possible, the parent-child relationship.” Weaver v. Roanoke Dep’t of Human
Res., 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980).
B. Whether the Circuit Court Erred in Terminating Father’s Parental Rights
DSS sought termination of father’s residual parental rights under Code § 16.1-283(C)(2)
which provides that such rights may be terminated based on clear and convincing evidence that
termination is in the best interests of the child and
[t]he parent or parents, without good cause, have been unwilling or
unable within a reasonable period of time not to exceed 12 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 parents have failed or have been unable to make such progress shall
constitute prima facie evidence of this condition. Id. Also, the court must “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.” Id.
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Father argues that DSS failed to show by clear and convincing evidence that it was in the
best interests of the children to terminate his rights. He further argues that he has demonstrated
his commitment to remedying the situation that precipitated the removal of the children.
Namely, completion of a parenting course and the drug treatment program he claims he is
enrolled in. He claims these efforts show that DSS failed to prove that it had made “reasonable
and appropriate” efforts to assist him as required by the statute and that the circuit court abused
its discretion in finding DSS had met this standard.
Father lists all of the circuit court’s orders in his notice of appeal, but his assignment of
error is limited to his own rights and we therefore limit our review to his rights alone.
Additionally, father argues that DSS failed to make “reasonable and appropriate efforts”
to assist him. The written statement of facts does not indicate that a timely objection was made
to this effect in the circuit court. The written statement of facts only states that father’s attorney
moved to strike the evidence on the reasoning that it was not in the best interests of the children
and did not object to the final order.
Where there is no transcript, Rule 5A:8(c) requires that the written statement include
“facts, testimony, and other incidents” where “other incidents” are defined as “motions, proffers,
objections, and rulings of the trial court regarding any issue that a party intends to assign as error
or otherwise address on appeal.” We must then assume that no objections were made which
were not detailed in the written statement. DSS is therefore correct that this issue was not
properly preserved per Rule 5A:18 which requires that an objection be “stated with reasonable
certainty at the time of the ruling.” Therefore, the best interests question is the only assignment
of error properly before us.
“In matters of a child’s welfare, trial courts are vested with broad discretion in making
the decisions necessary to guard and to foster a child’s best interests.” Farley, 9 Va. App. at 328,
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387 S.E.2d at 795. “A trial court is presumed to have thoroughly weighed all the evidence,
considered the statutory requirements, and made its determination based on the child’s best
interests.” Id. at 329, 387 S.E.2d at 796. This Court has previously laid out some of the factors
which should be considered in a best interest determination, 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, Alexandria Dep’t of Human Servs., Div. of Soc. Servs., 2 Va. App.
662, 668, 347 S.E.2d 188, 191 (1986).
The evidence, viewed in the light most favorable to the prevailing party, when weighed
against these factors shows that the children were in a household where drug use and domestic
violence appear frequent and prevalent. The family was forced to move out of their residence as
it was considered unfit for habitation and were lodged in a motel. Generally, the family had
difficulty in finding stable housing. Father has a history of medical ailments and is receiving
disability payments. Of the various services and help offered to him he only completed the
parenting course. He missed a number of drug screenings and was refused entry into one drug
treatment program because of past behavior in the program.
When considering the termination of parental rights, “[n]o 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.” Toms
v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 268, 616 S.E.2d 765, 770 (2005) (quoting
Winfield v. Urquhart, 25 Va. App. 688, 696-97, 492 S.E.2d 464, 467 (1997)). Father’s past
difficulty providing a stable and safe household for the children provides clear and convincing
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evidence supporting the circuit court’s determination. Father was provided by DSS with a plan
that would demonstrate his commitment to a different future, but declined to take advantage of it.
III. CONCLUSION
For the reasons stated above, the evidence taken in the light most favorable to DSS
showed ample support for the circuit court’s best interest determination. Because there was no
abuse of discretion on the best interest determination, and because no other issue was properly
preserved, the judgment of the circuit court is affirmed.
Affirmed.
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