Mark Dwayne Bishop v. Albemarle County Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Alston and Decker
Argued in Richmond, Virginia
UNPUBLISHED

MARK DWAYNE BISHOP
MEMORANDUM OPINION BY
v. Record No. 1635-17-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 28, 2018
ALBEMARLE COUNTY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge

Christopher C. Graham (Eustis & Graham, PC, on brief), for
appellant.

Amanda E. B. Farley, Senior Assistant County Attorney
(B. Stephanie Commander, Guardian ad litem for the minor child;
Albemarle County Attorney’s Office, on brief), for appellee.

Mark Dwayne Bishop (“Bishop”) appeals an order terminating his parental rights of his

child, H.N.1 Bishop argues that the Circuit Court of Albemarle County (“circuit court”) erred by

abusing its discretion in two ways. First, by denying his motion to reject the Albemarle County

Department of Social Services’ (“DSS”) petition to change H.N.’s foster care permanency plan

from “return home” and “relative placement” to “adoption.” Second, by denying his motion to

reject DSS’s petition to terminate his parental rights. For the following reasons, we affirm.

“When reviewing a [circuit] court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”


Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
See Willoughby v. Albemarle Dep’t of Soc. Servs., No. 1619-17-2, decided this day,
affirming the termination of parental rights of H.N.’s biological mother.
Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 76, 764 S.E.2d 724, 727 (2014)

(quoting Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003)). So viewed,

the evidence is as follows.

In 2009, Bishop was convicted by a jury of the rape and aggravated sexual battery of his

biological child, K.G.K. He was sentenced to twenty-seven years in prison. In early 2016,

another of Bishop’s biological children, H.N., entered the foster care system via emergency

removal order. H.N. was placed in two foster homes before a kinship placement was available

with Mike and Jessica Farmer, cousins of H.N.’s biological mother. H.N. “describes with joy

and pride the relationships and rituals she has established with her cousins.” Additionally, the

circuit court heard testimony from Mr. Farmer demonstrating his commitment to providing a

permanent home for H.N.

The Court Appointed Special Advocates for Children Court Report (“CASA report”)

prepared by H.N.’s case workers and admitted into evidence noted that H.N. was “elated by the

news” that she was placed with the Farmers. H.N. referred to Mrs. Farmer as “mom” and told

her case worker that she enjoyed living with her cousins. Furthermore, the CASA report

indicates that the Farmers “demonstrated their ability to provide a safe, stable and loving home

for H.N.”

Ellen Bishop (“Ms. Bishop”), Bishop’s mother, testified at the termination of parental

rights hearing that were her son to win his appeal regarding his rape conviction and be released

from prison, he would return to her home and she would allow him to be around his children.

Ms. Bishop testified that she had no contact with H.N. for the first five or six years of H.N.’s life

because paternity was at issue. But, during the five or six years before H.N. was placed in foster

care, Ms. Bishop saw H.N. “often.” Ms. Bishop said that she did not file for custody because she

believed the foster care case would determine custody and that between the time H.N. started

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having contact with her and the time H.N. was removed there were only occasional weekend

visits with H.N. at Ms. Bishop’s home. Ms. Morris, a social care worker, however, testified that

she had contact with Ms. Bishop only three times in 2016.

The circuit court terminated Bishop’s parental rights and approved the plan goal of

adoption. Regarding the possibility of Bishop returning to Ms. Bishop’s house, the circuit court

stated, “Not only do I find that would not be in H[.N.]’s best interest, but I find that would be

damning to H[.N.].” The fact that H.N. is “happy where she is and doing as well as she is is

extremely important to the Court.” The circuit court noted that “it is too great a risk if

Mr. Bishop was to come home or even the fact psychologically to H[.N.] that she’s living with

his mother and having to make yet another adjustment, I find would be too much and not in her

best interest.”

Bishop first argues that the circuit court abused its discretion “in denying [his] motion to

reject Appellee’s petition to change the foster care permanency plan from ‘return home’ and

‘relative placement’ to ‘adoption’ when Appellant provided sufficient evidence to support a

finding that at least one close relative with whom H.N. had a prior relationship was willing and

qualified to be considered for placement.”

In a challenge to the circuit court’s decision to terminate residual parental rights,

[T]his Court presumes that the trial court thoroughly weighed all
the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests. The circuit court
has broad discretion in making the decisions necessary to guard
and to foster a child’s best interests. Therefore, in a case involving
termination of parental rights, [t]he 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.

Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016)

(internal quotations and citations omitted) (second alteration in original). Code § 16.1-283(A)

“requires that the court ‘give a consideration to granting custody to relatives of the child’ prior to
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terminating parental rights and placing the child in the custody of social services.” Hawthorne v.

Smyth Cnty. Dep’t of Soc. Servs., 33 Va. App. 130, 139, 531 S.E.2d 639, 644 (2000) (quoting

Code § 16.1-283(A)). “[T]he Department [of Social Services] has a duty 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.” Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123, 131, 409

S.E.2d 460, 465 (1991). However, Code § 16.1-283 provides that a trial court may transfer

custody of a child to the child’s relative if that relative:

(i) is found by the court to be willing and qualified to receive and
care for the child; (ii) is willing to have a positive, continuous
relationship with the child; (iii) is committed to providing a
permanent, suitable home for the child; and (iv) is willing and has
the ability to protect the child from abuse and neglect . . . .

Code § 16.1-283(A1).

Here, the record indicates that the circuit court thoughtfully considered relative placement

for H.N. and found that placement with Ms. Bishop was not in H.N.’s best interests. The circuit

court heard the testimony of Mr. Farmer, also a relative of H.N.’s, who testified that H.N. was

doing very well at his home. Mr. Farmer testified that he was willing and qualified to care for

and provide a suitable home for H.N. The circuit court also heard Ms. Bishop’s testimony, noted

above, that she would allow Bishop to live with her and to contact his children if he were

released from prison, and, as also noted, the circuit court considered this possibility a great risk

and that yet another living adjustment would be damaging in itself and “not in [H.N.’s] best

interest” considering that H.N. is “happy where she is and doing as well as she is.”

Accordingly, we do not have to presume that the circuit court thoroughly weighed the

evidence and considered the child’s best interests—the record indicates that the circuit court did

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exactly that. Accordingly, we find no miscarriage of justice that would require reversal of the

circuit court’s decision.

Second, Bishop argues that the circuit court abused its discretion “in denying [his] motion

to reject Appellee’s petition to terminate his parental rights when Appellant presented substantial

evidence that it was in the child’s best interest to be placed with relatives, and when there is a

statutory preference under the Code of Virginia for placing children with relatives as opposed to

terminating parental rights.” The existence of this preference Bishop evidences with a cite to the

Code: “the court shall give a consideration to granting custody to relatives of the child,

including grandparents.” Code § 16.1-283. Though Bishop immediately admits that “nothing in

the statute or case law establishes a specific hierarchy of placement preferences when a child is

in foster care,” he claims an implicit presumption that placement with close relatives is

preferable.

Regardless, because the circuit court did not err in finding that placement with H.N.’s

grandmother was not in H.N.’s best interests, we need not address the sufficiency of the evidence

to demonstrate whether it was in the child’s best interests to be placed with relatives. As noted

above, the circuit court properly considered all relative placement options for H.N. and did not

abuse its discretion in granting DSS’s petition to change the foster care permanency plan from

“relative placement” to “adoption.”

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

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