Stacy L. Glass v. City of Manassas Park Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Malveaux and Senior Judge Frank
UNPUBLISHED

STACY L. GLASS
MEMORANDUM OPINION*
v. Record No. 0593-20-4 PER CURIAM
MARCH 2, 2021
CITY OF MANASSAS PARK
DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Tracy Calvin Hudson, Judge

(Robert R. Gregory, on briefs), for appellant.

(Martin R. Crim; Stephanie Stinson, Guardian ad litem for the minor
children; Vanderpool, Frostick & Nishanian, P.C.; Old Town
Advocates, P.C., on brief), for appellee.

Stacy L. Glass (mother) appeals the orders terminating her parental rights to her three

children. Mother argues that the circuit court erred in denying her motion for a continuance and her

motion for a transcript. Mother next argues that the circuit erred in finding that the conditions

which resulted in the neglect or abuse of the children were not substantially eliminated or corrected.

Mother also argues that the circuit court erred in finding that the City of Manassas Park Department

of Social Services (the Department) had provided sufficient services to assist her in overcoming the

issues that led to the removal of her children. 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.
 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 is the biological mother to the three children who are the subject of this appeal,

E.J.S., A.M.B., and Z.T.B., ages seventeen, nine, and six, respectively.2 The Department had been

involved with the family since 2015. The Department previously made a founded level three

finding of physical neglect based on inadequate shelter, which was not appealed. In February 2017,

mother requested assistance from the Department. The Department paid for mother’s dental work, a

bicycle, clothing and bedding, and a water bill. Mother was not receptive to the Department’s other

attempts to provide services including school transportation for the school-aged children,

psychological evaluations for mother and E.J.S., housing, disability income, and employment.

On April 17, 2017 the Department received a report that mother’s home was dirty, smelled

of rotting food, had food and clothing all over, and had a broken front window with glass on the

couch. The report also stated that mother had threatened and physically attacked Jeffrey Burke, the

father of A.M.B. and Z.T.B. The Department conducted home visits on March 13 and April 17,

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
Michael Sanford is the biological father of E.J.S., and Jeffrey Burke is the biological
father of A.M.B. and Z.T.B. The Prince William County Juvenile and Domestic Relations
District Court terminated both Sanford and Burke’s parental rights. Neither father appealed
those decisions.
-2-
2017, and found hanging appliance cords within reach of the children, a broken window with sharp

edges, rotten food on the floors and other surfaces accessible to the children, and objects that

presented a choking or poison hazard within reach of the children. The Department petitioned for

emergency removal of all three children, and they were placed in a foster home.

On June 1, 2017, the Prince William County Juvenile and Domestic Relations District Court

(the JDR court) found that the children were abused or neglected. After a dispositional hearing, the

JDR court approved initial foster care plans with the goal of returning all three children to mother’s

care. The Department required mother to take a parenting class, complete a psychological

evaluation, complete a parental capacity evaluation, cooperate with all recommendations, and

provide potential placement resources for the children. By October 2017, mother had completed her

parenting class and psychological evaluation. Mother continued to reside in her home after the

lease had terminated; her eviction was pending. Mother had no income or plan for alternative

housing.

In January 2018, mother informed the Department that she intended to move to Florida to be

near family and had a job and housing lined up. Mother informed the Department of at least two

changes of address once in Florida. After mother moved to Florida, the Department filed petitions

to terminate her rights to all three children in June 2018. The Department sought approval of

mother’s housing in Florida through the Interstate Compact on the Placement of Children (ICPC),

but Florida denied the request for approval of her home in August 2018. At mother’s request, the

JDR court directed the Department to resubmit two more ICPC studies for approval of mother’s

home and both were ultimately denied in April 2019 and October 2019. Mother visited the children

while she still lived in Virginia and maintained telephone contact with them after she moved to

Florida.

-3-
 Mother obtained a psychological evaluation as required by the Department. Dr. Edwin N.

Carter performed the evaluation and prepared a report. Dr. Carter found that mother’s cognition

was highly suspect and inconsistent. Dr. Carter reported that mother is likely to unwittingly engage

in negligent actions like failure to maintain a clean and healthy environment, follow through with

doctor’s instructions, and balance the needs of the children appropriately. Mother needed

vocational training to take care of herself financially and required an extensive external structure

that could likely never be eliminated. Dr. Carter found that mother appeared unable to manage the

environment and general circumstances of children without support or direction. Dr. Carter

believed that mother could participate in the parenting of her children only if they were in the

custody of others.

Although mother participated in the psychological evaluation, she did not satisfy many other

requirements of the foster care plan. Mother did not enlist the help of other competent individuals

to help with the demands of raising the children, did not obtain safe and stable housing for the

children, and did not obtain stable employment sufficient to pay for the family’s household

expenses.

On January 31, 2019, the JDR court orally approved a change of goal to adoption and

indicated it would enter the termination of parental rights orders. On February 6, 2019, the JDR

court sua sponte reconsidered its ruling. On September 26, 2019, the JDR court entered the orders

approving the foster care goal of adoption and terminating the parental rights of mother for all three

children. Mother appealed the JDR court’s rulings to the circuit court.

On March 16, 2020, the parties appeared before the circuit court. Mother had not

communicated with her counsel for three months, so her counsel moved for a continuance. The

circuit court denied the motion. A social worker testified that mother did not follow up on any of

the services before and after the children’s removal unless her father was involved. The Department

-4-
presented evidence that the children had been removed on April 17, 2017 and had been thriving in

their foster home since the removal. The children were medically healthy, had a healthy

relationship with each other and their foster parents, were learning academically and socially, and

participated in therapy.

Mother testified that she wished to be reunited with her children. Mother described her

current living situation near relatives and testified that she worked twenty-eight to forty hours per

week. Mother admitted to a prior conviction for a crime of moral turpitude. Mother also

acknowledged that she did not have a budget, that she had not pursued job training or obtained her

GED, and had not pursued a degree in nursing as she had previously promised. Mother could not

explain why she had not visited the children in Virginia except when she came to Virginia for court

appearances.

After hearing the evidence and argument, the circuit court found that mother “suffers from a

mental deficiency of such severity that there’s no reasonable expectation that she’ll be able to

undertake responsibility for the care needed for the children in accordance with their age and level

of development.” The circuit court also found that “the Department has provided every conceivable

support mechanism to [mother], and [mother] without good cause has not responded to or followed

through with the appropriate available and reasonable rehabilitative efforts that have been offered to

her.” The circuit court terminated mother’s parental rights to the children under Code

§ 16.1-283(B) and (C)(2) and approved the foster care 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 Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018)

(quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)). “Where, as

-5-
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 denying her motion for a continuance, erred in

denying her motion for a transcript at no cost to her, and erred in finding that the evidence was

sufficient to support the termination of her parental rights. Mother asserts that the evidence showed

that the conditions that resulted in the neglect or abuse were substantially eliminated or corrected, in

order to allow the children to safely return to her care. Mother also asserts that the evidence was

insufficient to show that the Department had provided sufficient services to assist her in overcoming

the problems in her case.

Mother did not object to the denial of either motion and did not object to the Department’s

evidence. “The Court of Appeals will not consider an argument on appeal which was not

presented to the trial court.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296,

315 (2013) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)); see Rule 5A:18.

“The purpose of Rule 5A:18 is ‘to ensure that the trial court and opposing party are given the

opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding

unnecessary appeals.’” Friedman v. Smith, 68 Va. App. 529, 544 (2018) (quoting Andrews v.

Commonwealth, 37 Va. App. 479, 493 (2002)). Mother acknowledges that she did not preserve

these objections and asks this Court to review her claim under the ends of justice exception to

Rule 5A:18.

“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”

Pearce v. Commonwealth, 53 Va. App. 113, 123 (2008) (quoting Bazemore v. Commonwealth,

42 Va. App. 203, 219 (2004) (en banc)). Whether to apply the ends of justice exception involves

-6-
two questions: “(1) whether there is error as contended by the appellant; and (2) whether the

failure to apply the ends of justice provision would result in a grave injustice.” Commonwealth

v. Bass, 292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)).

“The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.”

Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v.

Commonwealth, 54 Va. App. 505, 514 (2009)). “In order to avail oneself of the exception, a

defendant must affirmatively show that a miscarriage of justice has occurred, not that a

miscarriage might have occurred.” Melick v. Commonwealth, 69 Va. App. 122, 146 (2018)

(quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)). Furthermore, to

demonstrate that a miscarriage of justice has occurred, “[i]t is never enough for the defendant to

merely assert a winning argument on the merits—for if that were enough[,] procedural default

‘would never apply, except when it does not matter.’” Winslow v. Commonwealth, 62 Va. App.

539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App. 706, 710 (2010)).

I. Motion to Continue

Mother argues that the circuit court erred in denying her motion to continue. Mother asks us

to invoke the ends of justice exception to Rule 5A:18 and reverse the circuit court’s denial of her

motion to continue. However, the record fails to affirmatively demonstrate a miscarriage of justice

that would require reversal of the circuit court’s decision. The joint statement of facts in lieu of a

transcript indicates that mother’s counsel moved for a continuance because he had not heard from

mother in three months. Despite this lack of communication, mother was able to put forth her own

evidence in the case. Nothing in the record indicates that mother was hindered or unprepared in her

case because she had not spoken to her attorney in three months. Accordingly, we find no

miscarriage of justice that would require reversal of the circuit court’s decision.

-7-
 II. Motion for Transcript

Mother asks that we invoke the ends of justice exception to Rule 5A:18 and reverse the

circuit court’s denial of her request for a transcript at no cost to her. Under Rule 5A:8(c), a written

statement of facts can be submitted in lieu of a transcript. In this case, the circuit court approved

a statement of facts that summarized the evidence, procedural history, and trial proceedings. All

parties, including mother, signed the joint statement of facts in lieu of a transcript. Mother’s

submission of a statement of facts renders her claim regarding the denial of a motion for a

transcript moot. “[T]he general rule [is] that appellate courts do not sit to give opinions on moot

questions or abstract matters, but only to decide actual controversies injuriously affecting the

rights of some party to the litigation.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 42

(2014) (quoting Baldwin v. Commonwealth, 43 Va. App. 415, 421 (2004)). “Where there is no

actual controversy, the case will be dismissed as moot.” Id. at 42-43. Accordingly, we do not

address this assignment of error.

III. Termination of Mother’s Parental Rights

Mother asks us to invoke the ends of justice exception to Rule 5A:18 and reverse the circuit

court’s termination of her parental rights to E.J.S., A.M.B., and Z.T.B. However, the record fails to

affirmatively demonstrate a miscarriage of justice that would require reversal of the circuit court’s

order terminating mother’s parental rights.

The circuit court terminated mother’s parental rights under Code § 16.1-283(B) and

(C)(2). Code § 16.1-283(B) states a parent’s parental rights may be terminated if:

1. The neglect or abuse suffered by such child presented a serious
and substantial threat to his life, health or development; and
2. It is not reasonably likely that the conditions which resulted in
such neglect or abuse can be substantially corrected or eliminated
so as to allow the child’s safe return to his parent or parents within
a reasonable period of time. In making this determination, the
court shall take into consideration the efforts made to rehabilitate
-8-
 the parent or parents by any public or private social, medical,
mental health or other rehabilitative agencies prior to the child’s
initial placement in foster care.

Furthermore, the following is prima facie evidence for Code § 16.1-283(B)(2):

a. The parent or parents have a mental or emotional illness or
intellectual disability of such severity that there is no reasonable
expectation that such parent will be able to undertake
responsibility for the care needed by the child in accordance with
his age and stage of development;

b. The parent or parents have habitually abused or are addicted to
intoxicating liquors, narcotics or other dangerous drugs to the
extent that proper parental ability has been seriously impaired and
the parent, without good cause, has not responded to or followed
through with recommended and available treatment which could
have improved the capacity for adequate parental functioning; or

c. The parent or parents, without good cause, have not responded
to or followed through with appropriate, available and reasonable
rehabilitative efforts on the part of social, medical, mental health or
other rehabilitative agencies designed to reduce, eliminate or
prevent the neglect or abuse of the child.

“[S]ubsection B [of Code § 16.1-283] ‘speaks prospectively’ and requires the circuit court to

make a judgment call on the parent’s ability, following a finding of neglect or abuse, to

substantially remedy the underlying problems.” Toms v. Hanover Dep’t of Soc. Servs., 46

Va. App. 257, 270-71 (2005) (quoting City of Newport News Dep’t of Soc. Servs. v. Winslow,

40 Va. App. 556, 562-63 (2003)). “Virginia’s jurisprudence recognizes that ‘past actions and

relationships over a meaningful period serve as good indicators of what the future may be

expected to hold.’” Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375, 425 (2012)

(quoting Winfield v. Urquhart, 25 Va. App. 688, 695-96 (1997)); see also Geouge v. Traylor, 68

Va. App. 343, 375 (2017).

The evidence reflected in the record on appeal was clearly sufficient for the circuit court to

terminate mother’s parental rights to all three children. The circuit court found that the children’s

living conditions were deplorable and could not verbally describe what some of the exhibits

-9-
showed. The evidence showed that mother suffered from such a severe mental deficiency that she

could only participate in the parenting of her children if they were in the custody of others. This

structure of parenting while the children were in the custody of others could be reduced, but likely

never eliminated. The circuit court stated that the children needed stability, nurturing, and parent

figures who can meet their physical, emotional, and developmental needs, and mother could not

provide any of that.

Furthermore, “Code § 16.1-283(B) requires only that the circuit court consider whether

rehabilitation services, if any, have been provided to a parent. Nothing in Code § 16.1-283 or the

larger statutory scheme requires that such services be provided in all cases as a prerequisite to

termination under subsection B.” Toms, 46 Va. App. at 268. The Department previously had

provided services to mother, which she either declined or failed to follow up on. Contrary to

mother’s arguments, the circuit court did consider whether services had been provided and found

that the Department had provided “every conceivable support mechanism” to mother and she

failed to follow through.

The children thrived in their foster home. The children were medically healthy, had healthy

relationships with each other and their foster parents, and were learning academically and socially.

“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,

62 Va. App. at 322 (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535,

540 (1990)).

Considering the totality of the record, we find no miscarriage of justice that would require

reversal of the circuit court’s decision.

- 10 -
 CONCLUSION

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

Affirmed.

- 11 -