COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Senior Judge Annunziata
UNPUBLISHED
NICOLE M. JOHNSON
MEMORANDUM OPINION*
v. Record Nos. 0567-20-2 PER CURIAM
NOVEMBER 4, 2020
HOPEWELL DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Carson E. Saunders, Jr., Judge
(Terry Driskill, on brief), for appellant. Appellant submitting on
brief.
(Joan M. O’Donnell; Jessica V. Bailey, Guardian ad litem for the
minor children; Old Towne Lawyer, LLC, on brief), for appellee.
Appellee and Guardian ad litem submitting on brief.
Nicole M. Johnson (mother) appeals the circuit court’s orders terminating her parental rights
to her three children. Mother argues that the circuit court erred by terminating her parental rights
and finding that termination was in the children’s best interests. Upon reviewing the record and
briefs of the parties, we conclude that the circuit court did not err. Accordingly, we affirm the
decision of the circuit court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
“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 Cnty. Dep’t
of Hum. Servs., 63 Va. App. 157, 168 (2014)).
Mother and Robert Macias (father) are the biological parents to the three children who
are the subject of this appeal.2 On March 13, 2018, the Hopewell Department of Social Services
(the Department) received a report that mother had overdosed on heroin in the home while the
children were present. The Department entered into a safety plan with father stating that mother
had to be supervised around the children. On March 26, 2018, mother was arrested for
assaulting father, and the Hopewell Juvenile and Domestic Relations District Court (the JDR
court) issued an emergency protective order.3 On April 3, 2018, the Department received
another report that mother had overdosed in the home with the children present. The Department
tested father for drugs, and he tested positive for opiates and benzodiazepines.
On April 4, 2018, the Department removed the children from their parents’ care and
placed them in foster care because mother and father could not identify any possible relative
placements. The children were two, seven, and eight years old. The JDR court entered an
1
The record in this case was sealed. Nevertheless, the appeal necessitates unsealing
relevant portions of the record to resolve the issues appellant has raised. 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).
2
The circuit court terminated father’s parental rights, and he appealed the circuit court’s
rulings. See Macias v. Hopewell Dep’t of Soc. Servs., Record Nos. 0392-20-2, 0394-20-2, and
0395-20-2.
3
The domestic assault and battery charge was dismissed ultimately.
-2-
emergency removal order and a preliminary removal order. The JDR court subsequently
adjudicated that the children were abused or neglected and entered a dispositional order.
The Department was concerned about mother’s and father’s unstable housing, domestic
violence, and drug abuse. The Department required mother to participate in a psychological and
parental capacity evaluation, individual counseling, couple’s counseling, parenting classes, and
substance abuse treatment. The Department also required mother to submit to random drug
testing and to maintain safe and stable housing. Mother was inconsistent in complying with the
required services.
The parents had a history of domestic violence. Beginning in August 2010 and
continuing until March 2018, mother had been arrested for assault and battery against father on
three occasions, with all charges being nolle prosequied or dismissed. During the same time
period, father had been arrested for assault and battery against mother on five occasions, with all
charges ultimately being nolle prosequied or dismissed.4 The Department required mother and
father to participate in counseling for domestic violence, so they went to an assessment for
domestic violence. Mother and father enrolled in a domestic violence program, but they stopped
participating in the program because of its cost. Two or three weeks before the circuit court
hearing, mother and father told the Department that they had completed a domestic violence
program, but the Department was unable to confirm their participation.
Mother participated in a psychological evaluation, and it was recommended that she
complete substance abuse counseling, attend narcotics anonymous meetings, and participate in
psychotherapy. The Department was unable to verify mother’s participation in counseling. In
July 2018, mother enrolled in substance abuse treatment with District 19 but did not attend
4
On August 21, 2012, the JDR court found that the facts were sufficient to find guilt for
father but deferred the disposition of an assault and battery charge; the JDR court dismissed the
matter in 2014.
-3-
regularly. In November and December 2018, mother submitted to several drug tests, and during
that time period, she tested positive for benzodiazepines, cocaine, amphetamine, and
methamphetamines.5 In December 2018, mother enrolled in a methadone treatment program and
continued treatment with District 19. On April 23, 2019, she was discharged from the District 19
program due to “unsuccessful participation.”
In addition to its other referrals and services, the Department arranged for mother to visit
with and call the children. Initially, the visitations were arranged with the foster parents directly,
but subsequently stopped because “the relationship between the foster parents and parents
became strained.” The foster mother testified that during several visits, the parents argued with
each other in front of the children, which upset the children. Thereafter, the Department
supervised the visitations and telephone calls. Mother regularly attended the visits, but she was
not always available for the phone calls.
By October 2018, the parents had moved out of Hopewell, which limited the
Department’s ability to provide services to them. Father had moved to an apartment in Newport
News to be closer to his job. Mother had moved to Ohio, but subsequently returned to Virginia.
In April 2019, mother and father moved to a three-bedroom mobile home in Newport News.
On May 3, 2019, the Department filed a petition for a permanency planning hearing and
recommended a foster care goal of adoption. On June 24, 2019, the JDR court approved the
foster care goal of adoption, and mother appealed the JDR court’s ruling. On July 31, 2019, the
JDR court terminated mother’s parental rights, and she appealed the rulings to the circuit court.
On January 31, 2020, the parties appeared before the circuit court. The social worker
testified that the parents had not made “significant progress” toward achieving the Department’s
goals. The social worker explained that when the Department asked mother to do something,
5
Mother had a prescription for Oxycodone.
-4-
there was “a lot of conniving, scheming, . . . [and] no services [had] been completed or proved to
be completed.” The Department had been unable to verify mother’s participation and
completion of substance abuse treatment, domestic violence program, and counseling. Mother
was still unemployed at the time of the circuit court hearing.
The Department presented evidence that when the children entered foster care, they
“basically did or [said] what they wanted.” The foster mother testified that the older two
children were “violent toward each other” and would physically fight one another. All three
children needed “extensive dental care” and had to be treated for worms. While in foster care,
the Department offered the children individual therapy and in-home counseling. The social
worker described the children as “more stable with their behaviors”; however, the foster mother
testified that the older child still needed to work on controlling her behavior.
Mother did not present any evidence. Father, however, testified that he and mother had
been involved in substance abuse treatment at Pinnacle Treatment Center, where they received
methadone daily and participated in individual and group counseling. He also stated that mother
was under psychiatric care in Hopewell and prescribed medication. Father also claimed that he
and mother completed a thirty-six-hour parenting class.
After hearing the evidence and argument, the circuit court terminated mother’s parental
rights under Code § 16.1-283(B) and (C)(2) and approved the foster care goal of adoption. On
January 31, 2020, the circuit court entered orders memorializing its rulings. 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 Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)
-5-
(quoting Logan v. Fairfax Cnty. Dep’t of Hum. 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 Cnty.
Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania
Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).
Mother argues that the circuit court erred in finding that there was sufficient evidence to
terminate her parental rights and that termination was in the children’s best interests. Mother
acknowledges that “evidence from 2018 indicated difficulties in the environment [she] provided
for the children.” Mother, however, asserts that the circuit court had very little information about
her current situation, except father had testified that he and mother “were receiving medications
for their prior addictions.”
The circuit court terminated mother’s parental rights under 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.
“[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.” Yafi, 69 Va. App. at 552 (quoting Toms v. Hanover Dep’t of Soc. Servs.,
46 Va. App. 257, 271 (2005)).
The Department had presented evidence that it could not verify mother’s participation
and completion of substance abuse treatment, domestic violence program, and counseling. The
circuit court found that the Department had “asked and asked and asked and asked for
-6-
verification on the compliance of the requirements that [it] set out early on in order for [father]
and [mother] to substantially remedy the conditions that brought the children to foster care.” The
circuit court held that mother had “not taken . . . steps to remedy” the conditions leading to the
children’s placement in foster care. Mother did not present any evidence. The circuit court
noted that it was being asked “to accept testimony from [father] on behalf of [mother] that they
have in fact remedied substantially, corrected or eliminated the issues that caused the children to
have to be removed.” The circuit court, however, would not accept father’s testimony because
there had been “multiple, multiple unsuccessful completions previously which were documented
by the Department . . . .”
The children had been in foster care since April 2018. The Department had been unable
to verify that mother had completed the required services since the children entered foster care.
“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 Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 322 (2013) (quoting Kaywood v.
Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)). Considering the totality of the
evidence, the circuit court did not err in terminating mother’s parental rights under Code
§ 16.1-283(C)(2).
“When a trial court’s judgment is made on alternative grounds, we need only consider
whether any one of the alternatives is sufficient to sustain the judgment of the trial court, and if
so, we need not address the other grounds.” Kilby v. Culpeper Cnty. Dep’t of Soc. Servs., 55
Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46
Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of
Code § 16.1-283 and did not need to address termination of parental rights pursuant to another
subsection). Because we find that the circuit court did not err in terminating mother’s parental
-7-
rights under Code § 16.1-283(C)(2), we, therefore, do not need to reach the question of whether
mother’s parental rights should also have been terminated under Code § 16.1-283(B).
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is affirmed.
Affirmed.
-8-
Nicole M. Johnson v. Hopewell Department of Social Services
Combined Opinion