Paula Daywalt v. Harrisonburg Rockingham Social Services District

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, AtLee and Senior Judge Clements
UNPUBLISHED

PAULA DAYWALT
MEMORANDUM OPINION*
v. Record No. 0399-18-3 PER CURIAM
JULY 10, 2018
HARRISONBURG ROCKINGHAM
SOCIAL SERVICES DISTRICT

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge

(Avery B. Cousins, III; Cousins Law Offices, on brief), for
appellant.

(Rachel Erret Figura, Assistant County Attorney; W. Andrew
Harding, Guardian ad litem for the minor child; Convy & Harding,
PLC, on brief), for appellee.

Paula Daywalt (mother) appeals the orders terminating her parental rights to her child and

approving the foster care goal of adoption. Mother argues that the circuit court erred by terminating

her parental rights and approving the goal of adoption because (1) the Harrisonburg Rockingham

Social Services District (the Department) did not “meet the requirements” of Code § 16.1-283(C);

and (2) the Department “did not fully explore” relative placements as required by Code

§ 16.1-283(A). 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)).

Mother and Eric Lam (father) are the biological parents of the child who is the subject of

this appeal. After mother gave birth to the child, mother and father told the hospital staff that

they did not intend to take the baby home and wanted to place him for adoption. The hospital

staff contacted the Department, and a social worker met with mother and father at the hospital

after the child’s birth in December 2016. Father told the social worker that they were

unemployed and homeless and could not take care of the child. The hospital staff and social

worker noticed that mother allowed father to speak for her and would not speak with anyone

unless he was present. The social worker discussed with mother and father their options,

including relative placement, an entrustment agreement, and foster care. The social worker was

“not comfortable” with mother and father signing an entrustment agreement at the hospital

because they “presented as cognitively limited.” When the social worker inquired about possible

relatives who could care for the child, father could not provide contact information for one of his

relatives, and he said that they did not want mother’s relatives to be considered as a possible

placement. Mother left the hospital against medical advice in order to keep an appointment

regarding social security in Winchester.

Since there were no readily available options for relative placement, the Department

placed the child in foster care. On January 11, 2017, the Harrisonburg Rockingham Juvenile and

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Domestic Relations District Court (the JDR court) adjudicated that the child was abused or

neglected. Mother did not appear at the hearing.1

Mother returned to Pennsylvania, where she was raised. Her parents, Luther and Patricia

Daywalt, lived in Pennsylvania. Luther and Patricia Daywalt stated that they wanted to be

considered a relative placement for the child. In January 2017, the Department sent a request to

Pennsylvania through the Interstate Compact on Placement of Children (ICPC), but it was denied

because of prior child protective services (CPS) concerns. Luther and Patricia Daywalt did not

raise any of their biological children. Mother and her two brothers were removed from their

care, and mother had lived with her great-great uncle since she was young.

Mother’s great-great uncle and aunt, Lee and Mary Ditch, also lived in Pennsylvania.

Lee and Mary Ditch expressed an interest in having the child being placed with them, so in

January 2017, the Department sent a request to Pennsylvania through the ICPC. On February 16,

2017, Lee and Mary Ditch attended an orientation session, where they received paperwork to

complete by March 16, 2017. On March 24, 2017, Mary Ditch contacted the Franklin County

Children and Youth Services in Pennsylvania and requested an extension, which was granted

through April 10, 2017. Then, Mary Ditch informed the local department that she was

“struggling to complete a lot of the paperwork due to lack of cooperation from the rest of the

household.” On May 17, 2017, the ICPC was denied because of non-compliance with the home

study process and failure to complete the required paperwork. In addition, the Department

expressed concern about placing the child with Lee and Mary Ditch because of their age and

1
The Department presented evidence at the circuit court hearing that mother did not
appear at the preliminary removal hearing in December 2016, the adjudicatory hearing in
January 2017, the initial foster care review and dispositional hearing in February 2017, and the
foster care review hearing in May 2017. The first hearing that mother attended was the
termination of parental rights hearing in the JDR court.
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medical problems. Lee Ditch was seventy-eight years old and had significant hearing loss.

Mary Ditch was diagnosed with cancer.

On January 18, 2017, mother told the Department that she did not want to have any

contact with the Department or visit the child. Considering that mother and father initially

expressed no interest in caring for the child, the Department pursued a goal of relative placement

and a concurrent goal of adoption. However, mother later changed her mind about her

involvement with the child, and the Department sent her a letter explaining what services she

needed to complete. The Department required mother to engage in individual counseling, group

counseling, medication management, monthly meetings with the Department, random drug

screens, supervised visitation with the child, and a psychological evaluation with Dr. Joann

Grayson. The Department also required that mother pay child support and follow all court

orders.

The Department offered mother supervised visitation, and although she did not have a

regular schedule for visitations, she did not miss any of the scheduled visitations. Mother

usually visited once a month; however, in September 2017, she asked to visit more frequently

because her lawyer told her to request additional visits. Mother’s family came with her to the

visits, and it was not until September 18, 2017 that mother visited with the child by herself for

thirty minutes.2 The Department noticed that during the visitations, mother did not know what to

do if the child was fussy because she knew only three things to do to calm the child, namely

change him, feed him, or place him on the blanket on the floor. Her family had to help her with

the child. The Department also observed that mother was “not too aware of her surroundings

and what [the child] could be taking in” because she would use curse words or inappropriate

language around the child.

2
The Department supervised all of the visits.
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 After one of the supervised visits in July 2017, the Department reviewed mother’s

progress with her and discussed the services that she had to complete. Mother stated that she and

Patricia Daywalt completed a parenting class in Pennsylvania, and she provided a copy of the

certificate to the Department a week before the termination of parental rights hearing in the JDR

court.

In January 2017, the Department recommended that mother complete a psychological and

parenting evaluation with Dr. Grayson. In August and September 2017, mother finally met with

Dr. Grayson. After interviewing, observing, and testing mother, Dr. Grayson concluded that

mother had “a combination of intellectual impairment and serious psychiatric difficulties.”

Dr. Grayson found that mother was “dependent upon others for direction” and “unable to operate

independently.” Dr. Grayson also determined that mother had “unrealistic ideas about the time

and attention children need,” and consequently, was a “high risk for serious neglect.”

Dr. Grayson was concerned that mother had “an inflated opinion of her abilities as a parent” and

would be “unlikely to accept direction because she feels as though she knows everything she

needs to know in order to parent.” Dr. Grayson described mother as “self-absorbed” and stated

that she “lack[ed] empathy of children and other people.” Dr. Grayson explained, “Given her

high endorsement of corporal punishment, her low frustration level, her propensity to having

anger outbursts, and her inability to empathize with children, [mother] is at risk for physical

abuse.” Dr. Grayson expressed concern that there would be “safety issues if [mother] would be

left alone to care for a child, even for a short time.” Lee Ditch agreed with this assessment and

told Dr. Grayson that mother “would never be left alone with her child (‘not for a minute’!).”

Dr. Grayson recommended that mother be supervised while she is with children, and that if the

child was placed with Lee Ditch or Patricia Daywalt, “the maximal amount of in-home services

should be supplied.”

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 On October 4, 2017, the JDR court entered the permanency planning order and approved

the goal of adoption. On the same date, the JDR court terminated mother’s parental rights to the

child. Mother appealed to the circuit court.

On December 12, 2017, the parties appeared before the circuit court. The Department

presented evidence that mother did not have independent housing and had never lived

independently. The social worker testified that she had not “seen anything about [mother] and

the way she operate[d] that indicate[d] that [mother was] independent in any sort of way.”

The social worker also testified that Lee Ditch admitted that mother “can’t do parenting,

can’t do parenting by herself with [the child], but that they would all be around to help out.”

Mary Ditch testified that mother could be a “good mom” with help.

The Department investigated both paternal and maternal relatives as possible relative

placements. After investigating several paternal relatives, the Department found “no viable

placement on the paternal side.” The Department expressed concerns about Lee and Mary Ditch

as possible relative placements because of their age and health conditions. Mary Ditch testified

that her husband had a “mild heart attack” over the summer.

Another concern was Lee Ditch’s criminal history. Lee Ditch admitted that “a little over

a year” ago, he pleaded guilty to a charge, but he was not sure what it was. The original charge

was that he “touched” a minor girl, but “they reduced [his] charge.” When asked by the circuit

court, he said that he could not remember what his conviction was.

The Department also expressed concerns about Luther and Patricia Daywalt as possible

relative placements because of their CPS history and substance abuse.3 At trial, Luther Daywalt

admitted to using marijuana and being convicted of “stealing a dump truck trailer and Bobcat.”

3
On May 17, 2017, Luther Daywalt refused to take a drug test, and on October 3, 2017,
he tested positive for marijuana. Patricia Daywalt tested positive for marijuana on May 17 and
October 3, 2017.
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He served three years in prison. He also stated that he and Patricia Daywalt were living in a

trailer because he “lost everything” in a house fire in February 2017.

The guardian ad litem submitted photographs of the front and rear yards of the homes

where the Ditches and Daywalts lived. Luther Daywalt identified several vehicles in the yard, as

well as a car lift, container, large brush pile, and the “remainder of what was [his] home” after it

burned.

Mother testified that she was living with Lee and Mary Ditch. She admitted that she

completed the psychiatric evaluation, the parenting classes, and went to the Community Services

Board in Pennsylvania. Mother explained that her parenting classes consisted of two meetings at

the Chambersburg YMCA. She testified that she knew “what’s needed to take care of a kid.”

The Department presented evidence that the child was doing well in foster care and was

placed in a potential adoptive home. The child was receiving physical therapy to help with his

gross motor development. The social worker testified that the child was progressing.

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

parental rights pursuant to Code § 16.1-283(C)(2) and approved the goal of adoption. The circuit

court held that none of the maternal relatives would be appropriate relative placements. On

December 12, 2017, the circuit court entered an order terminating mother’s parental rights

pursuant to Code § 16.1-283(C)(2), and on December 19, 2017, it entered the permanency

planning order and approved the goal of adoption. This appeal followed.

ANALYSIS

Mother argues that the circuit court erred by terminating her parental rights and

approving the goal of adoption.4 “Where, as here, the court hears the evidence ore tenus, its

4
With respect to mother’s challenge of the foster care goal of adoption, “[o]ur decision to
affirm the termination order necessarily subsumes this aspect of [her] appeal because a
preponderance-of-the-evidence standard governs judicial modifications of foster care plans.”
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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)). “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)).

Code § 16.1-283(C)(2)

Mother argues that the circuit court erred in terminating her parental rights and approving

the goal of adoption because the Department failed to comply with the statutory requirements in

Code § 16.1-283(C). Mother asserts that she met all of the Department’s requirements because

she completed the psychiatric and parenting evaluation, attended parenting classes, contacted the

Community Services Board in Pennsylvania, and visited with the child. She further contends

that the Department did not provide her with reasonable and appropriate services, especially

considering her cognitive limitations and her “abusive and controlling” relationship with father.

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

which states that a court may terminate parental rights if:

The 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.

Code § 16.1-283(C)(2).

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 265 n.3, 616 S.E.2d 765, 769 n.3
(2005).
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 “[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)).

The evidence proved that mother was unwilling or unable to remedy the problems that

led to the child being placed, and remaining, in foster care. In December 2016 and January

2017, mother abandoned the child and told the Department that she did not want to care for the

child. Mother contends that she acted this way because father was abusive and controlling her,

but even after her family became more involved, she was slow to comply with the Department’s

requirements. She did not come to any of the hearings until the JDR court terminated her

parental rights in October 2017. She only visited the child once a month until her lawyer told her

in September 2017 to request additional visits. When she visited the child, she required help

from her family if the child did not respond after she changed him, fed him, and placed him on

the floor. She did not have her first meeting with Dr. Grayson until August 2017.

The circuit court found that Dr. Grayson’s report was “quite telling as to what the

mother’s limitations are [and] her needs for assistance in almost everything dealing with

parenting.” The circuit court held that “mother is pretty much reliant on other people for

everything, everything.” It concluded that mother is “in effect the same person now who

abandoned the child[,] with the same limitations and problems that existed prior to the

abandonment[,] other than she no longer lives with [father].”

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 Contrary to mother’s arguments, the Department proved with clear and convincing

evidence that mother failed to remedy substantially the conditions that led to the child being

placed in foster care and that termination of parental rights was in the child’s best interests. “We

have defined clear and convincing evidence as ‘that measure or degree of proof which will

produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to

be established.’” C. S. v. Va. Beach Dep’t of Soc. Servs., 41 Va. App. 557, 565-566, 586 S.E.2d

884, 888 (2003) (quoting Gifford v. Dennis, 230 Va. 193, 198 n.1, 335 S.E.2d 371, 373 n.1

(1985)). “It is intermediate, being more than a mere preponderance, but not to the extent of such

certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear

and unequivocal.” Id. at 566, 586 S.E.2d at 888 (quoting Gifford, 230 Va. at 198 n.1, 335 S.E.2d

at 373 n.1).

Mother also argues that the Department did not offer her reasonable and appropriate

services. “‘Reasonable and appropriate’ efforts can only be judged with reference to the

circumstances of a particular case. Thus, a court must determine what constitutes reasonable and

appropriate efforts given the facts before the court.” Ferguson v. Stafford Cty. Dep’t of Soc.

Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 4 (1992). In the foster care plan dated January 30,

2017, the Department required mother to participate in supervised visitation, parenting classes,

individual and group counseling, monthly meetings with the social worker, and a monthly

parenting group. The Department also recommended that mother complete the psychological

examination with Dr. Grayson, but mother did not meet with Dr. Grayson until August and

September 2017. Dr. Grayson’s first recommendation was that mother should have supervised

contact with children. Dr. Grayson found that mother’s cognitive disabilities affected her ability

to parent and live independently. The testing showed that mother was at a “very high risk of

neglect, for physical abuse, for emotional abuse, and for lack of proper supervision of children.”

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Since mother did not complete the psychological evaluation earlier in the process, the

Department was unable to provide additional services, beyond counseling and supervised

visitation, to mother prior to the termination of parental rights hearing. We find that the

Department offered reasonable and appropriate services given the circumstances of this case.

At the time of the circuit court hearing, the Department proved that mother was unwilling

or unable to remedy the situation that led to the child being placed, and remaining, in foster care.

The circuit court found that mother “made some visits” with the child, “attended two classes at a

YMCA . . . for a parenting class,” and “finally completed the psychological and parenting

evaluation.” However, after considering all of the evidence and mother’s needs, the circuit court

held that it was in the child’s best interests to terminate mother’s parental rights. “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 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)).

Accordingly, the circuit court did not err in terminating mother’s parental rights pursuant

to Code § 16.1-283(C)(2).

Code § 16.1-283(A)

Mother argues that the circuit court erred in terminating her parental rights and approving

the goal of adoption because the Department “did not fully explore the placing of the child with

[mother’s] family as required by Code [§] 16.1-283(A).” Mother contends that her family was

supportive of her and the child and immediately expressed an interest in being considered as a

relative placement.

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 Before 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). “This Court has

held that this provision obligates [the Department] ‘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 relatives in comparison to other placement options.’” Castillo v.

Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 567, 811 S.E.2d 835, 845 (2018)

(quoting Brown v. Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 217, 597 S.E.2d 214, 220

(2004)).

The Department presented testimony from several social workers about their

investigations of placing the child with relatives. Furthermore, Luther Daywalt, Lee Ditch, and

Mary Ditch testified at the hearing. The evidence proved that the ICPC denied the placements

with the Daywalts and the Ditches.

After hearing all of the evidence, the circuit court held that Luther and Patricia Daywalt

were not appropriate placements because they previously had children removed from their care.

In addition, the circuit court found that “disorganization” and “chaos” described “the general

condition of where they’re living,” and the circuit court was concerned about the positive

marijuana tests.

The circuit court also found that Lee and Mary Ditch were not viable relative placements

either. The circuit court emphasized their failure to complete the paperwork for the ICPC and

stated that the work to complete the paperwork was “nothing compared to the work of trying to

take care of a one year old.” The circuit court found that they were not in good health.

However, the circuit court was especially concerned that Lee Ditch was charged with “some sort

of inappropriate touching a child.” With respect to his testimony when he said that he did not

remember what the offense was, the circuit court stated, “Well, he’s either not telling the truth, or

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if he genuinely doesn’t know what he pleaded guilty to that shows a diminution in capacity that

reflects worlds on his inability to serve as an appropriate foster parent if he doesn’t know what

he pleaded guilty to.”

The circuit court held that there was “exceptional – lots of efforts made to find an

appropriate relative placement, but it’s been without success.” Based on the totality of the

evidence, the circuit court did not err in finding that the Department investigated possible

relative placements, but none were suitable.

CONCLUSION

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

Affirmed.

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