Joel East Davis, II v. Charlotte County Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Russell and Senior Judge Frank
UNPUBLISHED

JOEL EAST DAVIS, II
MEMORANDUM OPINION*
v. Record No. 1777-17-2 PER CURIAM
JUNE 26, 2018
CHARLOTTE COUNTY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY
Kimberley S. White, Judge

(Michael Thomas Trent; The Trent Law Practice, PLC, on brief), for
appellant.

(Michael J. Brickhill; David P. Mitchel; T. Michael Jones, Guardian
ad litem for the minor child; Michael J. Brickhill, P.C.; The Jones
Law Firm, P.C., on brief), for appellee.

Joel East Davis, II (father) appeals the orders terminating his parental rights and approving

the foster care goals of termination and adoption. Father argues that the circuit court “erred in

accepting the Department’s foster care plan with the goals of termination and adoption and in

terminating [father’s] parental rights because the evidence was not sufficient as a matter of law to

show” that (1) “termination at that time was in the best interests of the child;” and (2) father “failed

to substantially remedy the conditions that led to removal, and because there was good cause for any

failure, namely incarceration.” 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 circuit

court. See Rule 5A:27.

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
 BACKGROUND

“On appeal, ‘we view the evidence and all reasonable inferences in the light most

favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cty.

Dep’t of Soc. Servs., 59 Va. App. 375, 386, 719 S.E.2d 329, 334 (2012) (quoting Jenkins v.

Winchester Dep’t of Soc. Servs., 12 Va. App. 1178, 1180, 409 S.E.2d 16, 18 (1991)).

Father and Charlene Williams (mother) are the biological parents of the child who is the

subject of this appeal. In December 2014, approximately eighteen months after the child’s birth, the

Charlotte County Department of Social Services (the Department) received a child protective

services complaint alleging that the parents physically abused and neglected the child and were

using illegal drugs. The Department investigated and found that the house was “fine.” In February

2015, the Department asked father to take a drug test, and he tested positive for amphetamines and

benzodiazepines. The Department opened a foster care prevention case and offered parent aide

services to the family. The Department also offered employment services through the Virginia

Initiative for Employment not Welfare (VIEW) program. In November 2015, the Department

received a second child protective services complaint alleging that the parents physically abused the

child. The Department continued to provide services to the family, while they obtained suitable

housing and father found a job.

In early 2016, father advised the Department that their housing situation was not stable

again, and both father and mother had pending criminal charges. In April 2016, father tested

positive for oxycodone, but he had a valid prescription. At a family partnership meeting, it was

agreed that the child would be placed with the paternal grandmother; however, this placement was

not successful due to the paternal grandmother’s housing situation. Another placement with the

child’s paternal great-aunt was not successful, so the child was placed with the maternal great-aunt

for several weeks. In July 2016, the Department gave father another drug test, and he tested

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negative for all drugs. The Department returned the child to the parents and paternal grandmother’s

care, after they obtained housing and father found a job.1 The Department continued to offer the

parent aide services, and the family “showed signs of improvement.” However, father lost his job in

August 2016, and the family was evicted from their home in September 2016.

On September 13, 2016, the Department placed the child in foster care due to concerns

about housing and drug use. Both father and mother tested positive for cocaine. At the time of the

removal, the child was at the home of the maternal great aunt. The child was “thin,” and his clothes

were “unclean.” After the child entered foster care, a pediatrician examined him and determined

that the child was underweight for his age and suffered from multiple bug bites. The Department

also had concerns about the child’s development because, despite being three years old, he was not

very vocal and had difficulty communicating. On October 13, 2016, the Charlotte County Juvenile

and Domestic Relations District Court (the JDR court) found that the child was abused and/or

neglected.

The Department provided numerous services to father. The Department referred father and

mother for a substance abuse evaluation, but neither went for the evaluation.2 On October 20, 2016,

father tested negative for drugs. The Department arranged for father to visit with the child, and he

regularly visited with the child until he was incarcerated. In November 2016, father pleaded guilty

to shoplifting, third offense, and based on that conviction, the Stafford County Circuit Court found

that he violated his probation. Father’s expected release date was April 27, 2018.

1
At that time, father lived with the paternal grandmother and mother.
2
Father told the social worker that he scheduled an appointment for the evaluation, but
the social worker never received any confirmation of the appointment. Father testified that his
appointment was scheduled for the week after he was incarcerated on November 9, 2016.
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 On July 11, 2017, the JDR court approved the foster care goal of adoption. On August 11,

2017, the JDR court terminated father’s parental rights.3 Father appealed to the circuit court.

On October 16, 2017, the parties appeared before the circuit court. The Department

presented evidence that the child was in a potential adoption placement. The social worker testified

that the child had been with the same family since he entered foster care and was doing “really,

really well.” The social worker testified that the child was speaking more and was easier to

understand.4 The foster mother also testified about the progress that the child has made. She said

that when the child first entered foster care, he only said two words, but as of the date of the hearing,

he “talk[ed] all the time.” The foster mother said that he was learning quickly at school, attending

speech therapy at school, and doing well socially with his peers.

Father expressed his desire to remain in the child’s life and testified about the programs in

which he participated at the prison. Father completed a substance abuse course and an anger

management class, and at the time of the circuit court hearing, he was taking a nine-week parenting

class and a life skills course. He also was taking GED classes and had signed up for a vocational

class. Father explained that he applied to six halfway houses to go to after he was released from

prison. He acknowledged that the program at the halfway house lasted three to six months and that

the child could not live with him there. Father had not provided to the Department copies of the

certificates showing his completion of classes or his plan for taking care of the child upon his

release.

After hearing all of the evidence and argument, the circuit court terminated father’s parental

rights pursuant to Code § 16.1-283(C)(2) and approved the goals of termination and adoption. The

3
The JDR court also terminated mother’s parental rights. She appealed to the circuit
court, and the circuit court terminated her parental rights.
4
Father testified that the child used words to communicate with him and mother and that
the child played well with his peers.
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circuit court held that the child needed “stable and consistent housing” and “to be raised by

non-substance abusers.” On January 10, 2018, the circuit court entered the orders terminating

father’s parental rights and approving the foster care goals of termination and adoption. This appeal

followed.

ANALYSIS5

“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.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190, 717 S.E.2d 811, 814

(2011) (quoting Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d

13, 16 (1986)).

Best interests of the child

Father argues that the evidence was insufficient to prove that the termination of his

parental rights and adoption of the child were in the best interests of the child. He emphasizes

that he had a strong relationship with the child and was an active caregiver. He asserts that the

child was not aware of the foster care proceedings and would be in the same situation with the

same foster care family upon father’s release from prison.

“When considering termination of parental rights, ‘the paramount consideration of a trial

court is the child’s best interests.’” Id. (quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13

Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)).

5
Contrary to the Department’s arguments, father did not waive his objection to the
approval of the foster care goals of termination and adoption. Father argued against termination
and adoption in his closing argument and noted his objections to the permanency planning order.
In a bench trial, an appellant can preserve his issues for appeal in a motion to strike, in closing
argument, in a motion to set aside the verdict, or in a motion to reconsider. Lee v. Lee, 12
Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc). Therefore, we find that father
preserved his arguments for appeal.
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 After hearing all of the evidence and argument, the circuit court held that it was in the

child’s best interests “to be in . . . stable consistent housing, to be raised by parents who do not

engage in substance abuse and to be raised by parents who seek and receive substance abuse

counseling as needed.” The circuit court found that as of the date of the hearing, “neither parent

[was] in a position to offer stable consistent housing.” Housing remained a constant problem

throughout the years that the Department was involved with the family.

In addition, substance abuse was an ongoing issue. The circuit court found that the

Department recommended father get substance abuse treatment in 2015 and at the family

partnership meeting in April 2016. However, father had numerous excuses, such as working

nights, for not seeking substance abuse treatment at the time. Father testified that in September

2016, he tried to schedule an appointment for a substance abuse evaluation, but the date of his

appointment was after he was incarcerated. The circuit court held that father’s delay in seeking

treatment for his substance abuse problem “is a huge issue.”

Furthermore, the Department presented evidence that when the child entered foster care,

the child had speech and communication problems, as well as developmental delays. However,

once the child was placed with his foster family, he obtained speech therapy and started talking

more. The circuit court stated that it is in a child’s best interest to live in an environment “where

one’s language is developed and encouraged, where one is encouraged to interact socially with

others, where one is properly fed, [and] where one is properly cleaned . . . .”

At the time of the circuit court hearing, father was still incarcerated and did not expect to

be released until April 2018. Then, he hoped to go to a halfway house for three to six months.

He was not able to meet the child’s needs. “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.” Tackett v. Arlington Cty. Dep’t of Human Servs., 62

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Va. App. 296, 322, 746 S.E.2d 509, 522 (2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc.

Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990)).

Considering the entire record, the circuit court did not err in finding that the evidence was

sufficient to prove that the termination of father’s parental rights and adoption were in the child’s

best interests.

Code § 16.1-283(C)(2)

Father argues that the evidence was insufficient to prove that he failed to remedy

substantially the conditions that led to the child’s removal and that he did not have good cause for

his failure to remedy.

The circuit court terminated father’s parental rights pursuant to Code § 16.1-283(C)(2),

which authorizes a court to terminate a parent’s parental rights if:

[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.

“[S]ubsection C termination decisions hinge not so much on the magnitude of the problem that

created the original danger to the child, but on the demonstrated failure of the parent to make

reasonable changes.” Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 271, 616 S.E.2d

765, 772 (2005). “Considerably more ‘retrospective in nature,’ subsection C requires the court

to determine whether the parent has been unwilling or unable to remedy the problems during the

period in which he has been offered rehabilitation services.” Id. (quoting City of Newport News

Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556, 562-63, 580 S.E.2d 463, 466 (2003)).

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
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 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).

Father contends that he had “good cause” for not remedying the problems that led to the

child’s placement into foster care because he was incarcerated for the majority of the time that the

child was in foster care. He emphasizes that after the child’s removal but before his incarceration,

he tested negative for drugs, had a home, and worked odd jobs. Then, during his incarceration, he

completed substance abuse and anger management classes and was participating in parenting and

life skills classes. He also asserts that he had a plan for housing and employment after his release.

However, the circuit court found that father’s post-release plan had “a lot of contingencies”

and was not reasonable, especially considering that “the child will have spent one-third of his life in

foster care” by the time that father was released from prison. The circuit court recognized that

father’s “timeline was cut short, but it was really cut short by his own making, because of the

criminal conviction and because of the probation violation.”

“The twelve-month time limit established by Code § 16.1-283(C)(2) was designed to

prevent an indeterminate state of foster care ‘drift’ and to encourage timeliness by the courts and

social services in addressing the circumstances that resulted in the foster care placement.” L.G. v.

Amherst Cty. Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003).

Contrary to father’s arguments, the circuit court did not err in finding that the evidence was

sufficient to terminate his parental rights pursuant to Code § 16.1-283(C)(2) and approving the goals

of termination and adoption.

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.

Affirmed.

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