COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, AtLee and Senior Judge Frank
OCTAVIOUS PERSON, A/K/A
UNPUBLISHED
OCTAVIUS PERSON
MEMORANDUM OPINION*
v. Record No. 0764-18-1 PER CURIAM
MARCH 26, 2019
CITY OF NORFOLK DEPARTMENT
OF HUMAN SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
David W. Lannetti, Judge
(Michael E. Grey; Grey & Arsenault, PC, on brief), for appellant.
(Erikka M. Massie, Assistant City Attorney; Michael L. Hockaday,
Guardian ad litem for the minor child, on brief), for appellee.1
Octavious Person (father) appeals an order terminating his parental rights to his child and
approving the goal of adoption. Father argues that the circuit court erred by terminating his parental
rights because the City of Norfolk Department of Human Services (the Department) “failed to offer
reasonable and appropriate services” to father. 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.
1
On February 20, 2019, appellee filed a motion for leave to file its brief late and alleged
that appellant did not send his brief to the correct address. Appellant did not note any objection
to appellee’s motion. Upon consideration thereof, we grant appellee’s motion and accept its
brief as timely filed.
BACKGROUND2
“On appeal from the termination of parental rights, this Court is required to review the
evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford
Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cty. Dep’t of
Human Servs., 63 Va. App. 157, 168 (2014)).
In March 2011, the child entered foster care after the Department received a report that
the child’s mother and her paramour tied the child’s hands and feet together with shoelaces and
left the child in that condition overnight. On April 8, 2011, the City of Norfolk Juvenile and
Domestic Relations District Court (the JDR court) found that the child was abused or neglected.
The Department could not locate father when the child initially came into care; however,
after the child had been in foster care for three months, the Department learned that father was
incarcerated. Father had been convicted of sexual battery and later for failing to register as a
violent sex offender. Father’s expected release date from prison was February 23, 2015.
On October 10, 2012, the JDR court terminated father’s parental rights and approved the
goal of adoption.3 Father appealed the JDR court’s decision, and the circuit court denied the
Department’s petition to terminate father’s parental rights and the foster care plan with the goal
of adoption. The Department appealed the decision to this Court, which affirmed the circuit
court’s ruling. See City of Norfolk Dep’t of Human Servs. v. Person, Record No. 0936-13-1
(Va. Ct. App. Jan. 14, 2014).
2
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues raised by appellant. Evidence and factual
findings below that are necessary to address the assignments of error are included in this opinion.
Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we
unseal only those specific facts, finding them relevant to the decision in this case. The remainder
of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1
(2017).
3
The JDR court also terminated mother’s parental rights to the child.
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After this Court’s ruling, the Department continued to provide services to the child and
made additional efforts to work with father. While incarcerated, father elected not to participate
in services and programs that were offered at the prison where he was incarcerated. However,
father also spent time, sometimes willingly, in segregation at prison, where he could not
participate in services.
In January 2016, the circuit court found that father was a sexually violent predator and
civilly committed him to the custody of the Virginia Department of Behavioral Health and
Developmental Services (VDBHDS). The circuit court held annual reviews in 2017 and 2018
and recommitted father to the custody of the VDBHDS.
On May 10, 2017, the JDR court terminated father’s parental rights and approved the
goal of adoption. Father appealed to the circuit court.
On February 15, 2018, the parties appeared before the circuit court.4 The Department
presented evidence that the child had resided with the same foster parent since June 14, 2013,
and the foster parent had indicated that he wanted to adopt the child. The child had numerous
mental health, behavioral, and educational issues, which required therapy, hospitalization, and
medication. The child’s therapist testified that she could recall only three sessions in which the
child mentioned father, and it was a “very limited conversation.”
The Department also presented evidence concerning its efforts to work with father and
the limitations it encountered due to father’s civil commitment. Since the child entered foster
care in 2011, father had sent the child three letters and one birthday card; he had sent the
Department four letters. The Department communicated directly with father on “multiple
occasions,” and father, his counsel, and/or his guardian ad litem received copies of the foster care
service plans. After father was civilly committed, the Department tried to contact the facility,
4
Father appeared via videoconference.
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but was unable to speak with anyone. The Department also attempted to obtain a copy of
father’s psychosexual evaluation to review the recommendations and results, but was denied
access to the evaluation.
Father testified that while he was in prison from January 2015 to February 2016, he did
not have access to pencils, pens, or paper because he was in isolation for refusing to comply with
the prison’s rules. At the beginning of his civil commitment, father could not have any contact,
including third-party contact, with children; however, he could contact his attorney and receive
mail from his attorney. As of November 2017, he was allowed to have contact with the child,
but father testified that he did not have any contact information for the child or the Department.
At the conclusion of all of the evidence and argument, the circuit court took the matter
under advisement and issued a letter opinion on March 29, 2018. The circuit court found that the
evidence supported the termination of father’s parental rights under Code § 16.1-283(C)(1) and
(C)(2), but not (B), and that termination of father’s parental rights was in the child’s best
interests. The circuit court recognized that father did not have a release date, but held that
father’s incarceration was “not the sole factor supporting termination of rights.” The circuit
court found that father’s failure to plan for the child’s future was “a strong indicator that he
would be unable to properly parent even if not confined.” The circuit court also found that father
had never had a “meaningful relationship” with the child and had not attempted to develop a
relationship with the child. On April 11, 2018, the circuit court entered orders terminating
father’s parental rights and approving the goal of adoption. This appeal followed.
ANALYSIS
“On review, ‘[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.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018)
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(quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128 (1991)). “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 (2011) (quoting Martin v. Pittsylvania Cty.
Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).
Father argues that the trial court erred in terminating his parental rights because the
Department failed to provide him with reasonable and appropriate services. Father contends that
the Department should have made more efforts to stay in contact with him and to preserve his
relationship with the child.
“‘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.” Harrison v. Tazewell Cty. Dep’t of Soc.
Servs., 42 Va. App. 149, 163 (2004) (quoting Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14
Va. App. 333, 338 (1992)).
[W]hile 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 child will be served by termination.
Ferguson, 14 Va. App. at 340.
Contrary to father’s arguments, the Department was not required to offer him services
while he was incarcerated. See Harrison, 42 Va. App. at 163-64. This Court has held that “[i]t
would be patently unreasonable to require the Department, under such circumstances, to continue
to offer services.” Id. “[A]s long as he was incarcerated, the Department would have had no
avenue available to offer [father] services aimed at assisting him in regaining custody of the
child.” Id. at 164.
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When the child first entered foster care and father was incarcerated within the
Department of Corrections, the Department established requirements for father to complete after
his expected release date of February 23, 2015. For example, the Department required that father
obtain and maintain stable housing and employment, as well as participate in counseling,
parenting classes, and a parenting capacity assessment. The Department maintained contact with
father by sending him letters and providing him copies of the foster care service plans. The
Department indicated that it would contact the correctional facility to determine what services
were available to father in prison, but because father did not follow the prison’s rules, he was
segregated from the general population and could not participate in any services. Father never
took advantage of any services available to him in prison.
Father was not released from prison as expected in February 2015; instead, he was civilly
committed for an indeterminable period. While he was civilly committed, father could not
complete the requirements necessary for him to gain custody of the child. The circuit court
found that “further communication between [the Department] and Father . . . would have been
futile in rehabilitating the parent-child relationship from a practical perspective.”
At the time of the circuit court hearing, the child had been in foster care for
approximately seven years. Father had not completed any of the requirements necessary for the
Department to consider reunification, and it was unknown when father would be released from
civil commitment to complete those requirements. See Code § 16.1-283(C)(2). Furthermore,
father had had very little contact with the child while the child was in foster care, and father had
made no plans for the child’s future. See Code § 16.1-283(C)(1). “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
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Human Servs., 62 Va. App. 296, 322 (2013) (quoting Kaywood v. Halifax Cty. Dep’t of Soc.
Servs., 10 Va. App. 535, 540 (1990)) (alteration in original).
Considering father’s situation, the circuit court did not err in holding that the
Department’s efforts to communicate with father and rehabilitate his relationship with the child
were reasonable and appropriate.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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