Virginia Family Law Appeals

Mental health report inadmissible hearsay in parental rights termination

In a parental rights termination, it was improper to consider a mental health “pre-admission screening report” on a parent, which included historical information and third-party statements from various sources, the Virginia Court of Appeals says in Ansell v. Harrisonburg/Rockingham Social Services District (1/15/19, unpublished). The report did not qualify for admission as a business record under Rule of Evidence 2:803(6), because its custodian could not testify that the records, or the information in them, came from someone with knowledge of the facts recorded in them. The report was hearsay and was offered at trial for the truth of what it said. However, the Court also found this to be harmless error. It explained that the report was used to prove the mother’s mental state at the time the children were taken, but “was of minimal value in determining” whether she had remedied her problems since then, which was the issue in the hearing. Also, she had not objected to admission of medical records from her hospitalization, or to other references to information from that pre-admission screening. And the trial court found “from its observations of Ansell while she testified” that the mental problems still existed.

State failed to meet burden of showing parent failed to remedy conditions; no-show GAL who phoned-it-in failed to protect child

The Court of Appeals overturns a parental rights termination, and a change of goals from reunification to adoption, for lack of evidence that the mother was unwilling or unable to remedy what caused the child's removal, in Sternberg v. Spotsylvania DSS, 5/8/18. Mother had a history of some very non-extreme acts of abuse and neglect, and some cognitive disabilities, but complied almost completely with recommendations, visitations, safety plans and reunification plans, and complied with all court orders. She proved able to meet her child's needs and was beginning to bond and be an effective authority figure to the child. 

However, the DSS changed the plan to termination and adoption. An evidentiary hearing in Circuit Court, with the mother representing herself, nonetheless revealed how flimsy their grounds for this were. The DSS witness cited her "defensiveness and argumentativeness" and that there were “incidents with safety” -- but the Court notes that these

"were not situations involving any type of physical or emotional abuse or even corporal punishment. Rather, they involved circumstances such as D.S. continuing to run at a pool after his mother had instructed him to stop doing so and crossing a Wal-Mart parking lot in a manner deemed unsafe."

The DSS was concerned about how the mother responded to information about unspecified criminal charges against her pastor, though they could not point to anything like the mother leaving the child alone with him. They also noted "dysregulation" and a lack of follow-through with discipline of the child.

The Circuit Court rightly dismissed the DSS's concerns about relatively trivial and everyday imperfections, but said that the child was taken away in the first place because of "physical abuse" and the mother had not done anything to acknowledge or remove the causes of that, and so terminated her parental rights. However, (1) it had refused to let the mother introduce evidence of what exactly led to the child's removal in the first place, and (2) what the Court found the mother had failed to do was not at all what the  safety plans, recommendations, court orders, etc. had told her to do.

The Court of Appeals says it is unnecessary to address the trial court's refusal to hear evidence of what led to the child's removal, because, it says, there was absolutely no evidence to show, as Code § 16.1-283(C)(2) requires,

"clear and convincing evidence, that it is in the best interests of the child and that . . . [t]he 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 ...

In other words, the burdens of production and proof, regarding remedying the conditions, are on the state, not the parent.

The Department asked the Court to affirm on the grounds that there was other evidence in the record supporting other grounds for termination, but the Court notes that the Circuit Court had, rightly, found such evidence of poor parenting skills immaterial. Accordingly, "we reverse the decision of the circuit court and vacate both its order terminating mother’s parental rights to D.S. and its order approving the change in goal for the foster care plan from “return home” to “adoption.”"

The Court also finds that the guardian ad litem failed to provide effective representation, though it does not affect its decision. The GAL sent a colleague from another firm to represent her at the circuit court trial and present her recommendation, "after reaching her conclusions regarding the case without the benefit of the evidence at the hearing," the Court notes with concern.

"Accordingly, no guardian, whether appointed or serving as a substitute, offered an opinion that was formed based on all of the evidence. Thus, D.S. was denied a fully informed guardian to represent his interests, and the circuit court, in reaching its decision, was denied the benefit of a validly formed opinion of a guardian ad litem."

Driving with kids and blood alcohol of 3X the limit is felony child neglect

The Court of Appeals upholds a conviction for felony child neglect. The mother was driving with the children with a BAC of 0.25%,  two flat tires that she seemed unaware of, had hit a median, and appeared "heavily and highly intoxicated.” Camp v. Commonwealth, 5/8/18.

Code § 18.2-371.1(B)(1) requires a "willful act or omission in the care of such child ... so gross, wanton, and culpable as to show a reckless disregard for human life."

‘Willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004). Thus, to fall within the scope of the statute, a parent’s act or omission must be such that “an objectively reasonable person would understand that injury to the child is likely to result” from the act or omission. Hannon, 68 Va. App. at 94, 803 S.E.2d at 359.

..."The term “gross, wanton, and culpable” describes conduct. The word “gross” means “aggravated or increased negligence” while the word “culpable” means deserving of blame or censure. “Gross negligence” is culpable or criminal when accompanied by acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." Barrett, 268 Va. at 183, 597 S.E.2d at 111 

Accordingly, to sustain appellant’s convictions, the evidence must be sufficient to allow the factfinder to conclude that appellant’s actions exposed the children to more than a mere possibility of injury; the factfinder must be able to conclude from the evidence that injuries were likely.

The court concludes that driving with a BAC of three times the limit is, itself, child neglect:

In Stevens v. Commonwealth, 272 Va. 481, 487-88, 634 S.E.2d 305, 309 (2006), ... the Supreme Court expressly stated that the defendant’s “high level of intoxication, approximately three times the legal limit . . .. alone justifies a finding that Stevens’ conduct was gross, wanton, and culpable[,]” and thus, met the standard found in Code § 18.2-36.1(B).5.

In addition, though not necessary for conviction,  "Significant other evidence supported the trial court’s conclusion: appellant’s inability to control her SUV when she nearly struck Lasco’s marked police cruiser; appellant’s inability to control her SUV to the point that she struck a median with sufficient force to flatten two tires; her continued operation of the vehicle with two flat tires; and her inability to complete one of the field sobriety tests without falling down."

 

Leaving 5-year-old home alone was criminal, but it depends: duration, maturity, known dangers, precautions, availability ...

The Court of Appeals upholds a decision that leaving an unruly, wandering-prone 5-year-old boy home alone for "the better part of an hour" was felony child neglect. Gibbs v. Commonwealth, unpub. 4/3/18. The Court stresses that it does not retry the case, but only looks at whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The boy was found walking from his apartment complex across the street towards some businesses, on a very cold day, with no jacket or socks. He said he thought his father was at work and he was going to find him. Actually, the father was at a meeting at the child's school about some safety-threatening misbehavior for which the child had been suspended, which is why he was at home.

We certainly create no per se rule that a parent who leaves a five-year-old child at home by himself will be guilty of felony child neglect. "“[a] parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” Thus, although there are varied opinions about what constitutes “good parenting” and the appropriate level of parental supervision, parents are afforded a great deal of latitude regarding the care of their children." Circumstances – and children themselves – can be quite different. A parent has a right to decide, within reason, when and for how long, a child is sufficiently mature to be left alone at home. ...

Based on the specific facts and circumstances of this particular case, ... appellant should have known that five-year-old J.G. was insufficiently mature to be left alone in their apartment for the better part of an hour ... and that leaving him as appellant did here showed “a reckless disregard” for J.G.’s life and safety and created circumstances that would “probably result in an injury” to him. ... Appellant was aware of his child’s significant “history of unruly or undisciplined behavior,” his immaturity, and his impulsiveness as evidenced by J.G.’s actions at school – in addition to this kindergartener’s young age. Significantly, appellant’s meeting with school officials was to discuss their concern that

The Court also found it significant that the father did not leave the son with any way to reach him, and that he knew that a month earlier, the boy had left the apartment and gone to the complex's pool when left home with his older brother. 

 

Son, 5, disappears while mother sleeps, later found dead in septic tank, abuse/neglect conviction overturned

Virginia's Court of Appeals overturned the child abuse and neglect conviction of a woman whose five-year-old went outside while she was sleeping  and at some point drowned in a septic tank, saying the law

does not impose criminal liability on parents who fail to take positive action to ferret out every potential hazard to ensure the premises are safe. ... Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” ... The tragic death of a young child is a hard case. When the child’s body is found in a septic tank after four days of searching, the case is even harder. But it would not benefit the general good of the community to expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to protect a child from an undiscovered and unknown danger. Septic tanks are common in many areas of this Commonwealth. As tragic as the facts of this case are, to affirm this conviction would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and continuously supervise his or her child. A parent could be subject to a felony conviction if he or she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been corrected.

After driving her husband to work, the mother took a prescription suboxone -- a drug used to cure opioid addiction -- and fell asleep. She woke up to find her infant crying, the front door open, and her five-year-old son missing. Neighbors, the landlord, police and even the FBI searched for her son. One of them "lightly kicked" a septic tank lid, which popped off. He and another officer poked around in the tank's contents with a metal rod and felt nothing. Over the next few days, police officers and an FBI agent took the lid on and off several times, but at least two of them did not "secure" it "on the opening". Four days later the tank was drained and the boy's body was found in it. When it was drained there was only one screw in the lid, and no others were found anywhere nearby.

The trial court found that the mother knew about the septic tank; she knew her son loved to play near it, and that toys were typically left all over the yard and some had been found inside it the previous year, but the appeals court notes that there was no evidence of a reason for the mother to think the child had dropped them into it, rather than flushing them down the toilet, nor indeed that he was able to open the lid. Once, a month or two earlier, he had stood on the lid, and the mother had told him to get off it and never to stand on it again. The trial court took this as evidence that the mother knew of the danger of falling in the tank, but the Court of Appeals sees it as prudent and caring. And "no evidence suggested White knew of subsequent occasions when her son played on or near the lid, or engaged in dangerous activity in the yard."

The mother knew that her son liked to play outside in the fenced-in backyard, and that he had sometimes unlocked the door and gone outside on his own. But "is not sufficient to find that White was advertent to the likelihood that lack of supervision would result in serious injury. The Commonwealth was also required to show that White knew of a heightened risk in the yard such that the son would likely be injured if he played there unsupervised."

No evidence was presented from which the trial court could have inferred that the mother knew the lid could be opened easily. “Inferences must be based on facts and not upon other inferences or mere speculation.”

The mother told a lie which may have been unrelated to her son's death but, the Court says, played a major role in her conviction. When she took her husband to work, she left the five-year-old and the infant home alone. She initially told police she had taken them along, then admitted she left them home. That negligence was not criminal, the Court says, because it played no role in the boy's later disappearance, but it did legitimately affect her credibility.

The Court overturns the conviction because there was no proven willful act or omission, as required by the criminal statute, that caused the death.

Code § 18.2-371.1(A) provides, in part, “Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission . . . causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony.” The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when ‐ 7 - used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful.  

The standard for willfulness in this context depends on an awareness of a particular danger, the Court says, combining the standards set out in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999), where there was no known danger, and Barrett v. Commonwealth, 268 Va. 170,  597 S.E.2d 104 (2004), where there was. Continuing, with citations omitted:

"The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil or corrupt.” “The term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” The terms “bad purpose” or “without justifiable excuse” necessarily imply knowledge that particular conduct will likely result in injury or illegality. “In other words, the defendant must have been aware that [the] [omission] was likely to result in serious injury.”  “[S]omething more than negligence must be proved beyond a reasonable doubt to support [a] conviction ... the parent “must have been advertent to the likelihood that the conduct [omission] in question would cause or permit serious injury.” "The statute punishes willful omissions, which requires an awareness that the conduct would cause or permit serious injury. It proscribes advertence, not inadvertence. "

All this raises two major factual issues, which were more or less ignored:

1. How do we know that the mother was not lying when she said her son disappeared while she was sleeping, instead of while she was gone? After all, she initially lied about having left the children home alone while she took her husband to work. Then again, if she were lying about that, and the disappearance happened while she was  away, would that be enough for a conviction, considering that it was the five-year-old, not the infant, who came to harm?

2. The appeals court notes that there was no proof that the child's possibly playing on the tank lid had anything to do with his death, but they don't come out and talk about what must have happened if that didn't happen, so I will:

A searcher initially found the septic tank with the lid ON. That means one of three things:

• The child jumped into the tank and put the lid on it from the inside. He was not found in the first search of the tank because it was not thorough enough.
• The child did not go into the tank when he first disappeared, but later, at some point when one of the searchers had left the lid off. (If indeed they ever did; the opinion is unclear, saying only that at one point it was not "secured" on the tank.) That is why was not found when the tank was first discovered, because he was hiding somewhere else at that time.
• Someone else put the child in the tank, alive or dead, and closed the lid. They may have done this after the first search of the tank, which would explain why the child was not found in the first search.

Postscript: By the time the appeal was decided, the mother had already served the 23 months of her sentence that had not been suspended.

White v. Commonwealth, 9/19/17

Court must consider child's current best interests before incorporating agreement into court order

A trial court had to consider the best interests of the child before incorporating an agreement on child custody and visitation into a court order, the Virginia Court of Appeals says in Matthews v. Brinckhaus (7/25/17). In that case, after the agreement was signed, a parent was convicted of assault. A condition of probation was to have no contact with his child. The agreement allowed visitation, and the other parent argued that it should not be made part of a court order because it was no longer in the child's best interests. The trial court expressly declined to consider best interests nor make any findings on the factors listed in Code Sec. 20-124.3.

This is a hard case that could make very bad law for 99% of custody cases, even though it is not only right for these parties but also completely legally correct in this case. The big question is, does this rule apply to every case in which an agreement is incorporated, or only where a party contests the incorporation? Even where a party contests incorporation, will it be considered frivolous to do so without a change of circumstances since the agreement, or without facts as compelling as those in this case?

Other trial judges could read the opinion to mean that every incorporation of an agreement on custody or visitation requires an evidentiary hearing. Or that if any party wants to back out of the agreement at the time of incorporation, a full-fledged custody trial can be held, no matter how recent the agreement, without requiring any threshold showing of a major change of circumstances affecting the child. Others might commonsensically apply a change of circumstances cutoff and not worry about uncontested cases at all, or might look for procedural facts and grave, obvious substantive considerations, similar to those in this case.

The Court's opinion does not say whether it is limited to the facts it recites, nor does it include any other words limiting the literal application and scope of its pronouncements. But there is one big clue to whether the opinion is intended to introduce new practices fundamentally changing the nature and value of custody/visitation settlements, or is just limited to its facts and reiterates existing law and practice: it is unpublished.

Local welfare department adult protection decisions can't be appealed to courts

The Administrative Process Act does not apply to a county Department of Social Services, and so does not provide for judicial review of the Department's decisions, the Virginia Court of Appeals says in Pittsylvania County Department of Social Services v. Gosney (unpublished, 5/2/17). The county DSS is a county agency, "not a state agency nor capable of agency action or case decisions subject to judicial review", at least regarding adult protective services.

Yes, there is a state Department for Aging and Rehabilitative Services, "responsible for overseeing the planning, administration and implementation of adult protective services," but the local departments, part of municipal governments, are wholly responsible for providing the services, including investigating and making findings. Counties and cities are expressly exempted from the Administrative Process Act.

Imputing recent income to imprisoned support payor not "speculative." - Va. Ct. of App. in Niblett case

Virginia's Court of Appeals once again favors imputing income to an imprisoned parent, this time reversing a trial court that decided otherwise, in Niblett v. Niblett, published, 12/15/15. 

The trial court had found that the father was "voluntarily unemployed" as a result of his voluntary criminal acts, but held that even so, the 1995 case of Donnell v. Donnell, 20 Va. App. 37, barred imputation against an imprisoned felon as "premised upon the occurrence of an uncertain future circumstance". In that case, like this one, the payor was convicted of sexual conduct with minors in his home, and imputation of his previous level of earnings was sought. That "would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].”, the trial court ruled.

But there was evidence of recent past earnings, and the trial court was required to look at it as evidence of current earning capacity, the appeals court says. This is not speculative, because "we are not concerned with what the father might earn upon his release from incarceration. Rather, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment." 

This opinion also quotes a useful standard for proving abuse of discretion:

An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Still, the ultimate result in this appeals court opinion is remand, as in Donnell:

although the trial court must consider each of the statutory factors for which evidence is presented, the weight, if any, to give any particular factor in the overall decision lies within the trial court’s sound discretion. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the trial court must deviate from the presumptive guidelines because of the income imputed to father. Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,”7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in original) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.

Mom's focus on feelings & needs supports terminating her rights via narcissist diagnosis, non-improvement prediction

For a generation or two, everyone, especially women, has been urged to get in touch with their own feelings and needs. But don't overdo it. In a case with abundant evidence for termination of a mother's parental rights to seven of eight children under 13, one part of that evidence, cited by the Court of Appeals, predicts the future based on a diagnosis:

Dr. A.J. Anderson, a psychologist, evaluated mother and determined she is excessively self-focused and preoccupied with her own needs and feelings to the extent that it likely prevents her from giving adequate attention to the needs and feelings of others. Dr. Anderson also concluded that mother has narcissistic characteristics that limit her response to interventions. He opined that mother is not likely to “self-correct or be open to constructive criticism.” Dr. Anderson stated that individuals diagnosed with mother’s personality disorders often do not change considerably over time, even with treatment.

From the opinion it looks like the mother did not challenge the admission of that testimony, or its use as a reason for termination. Also, it was not a generalization or prediction made in a vacuum; all of it was consistent with the mother's existing behavior.

Robinson-Miles v. Danville Division of Social Services (Va. Ct. App. Unpublished, 9/15/2015)

Video of child's sex accusations admissible; continuance claim waived by opposing later continuance.

A father cannot appeal a termination of his parental rights based on the trial court's denial or his continuance request, the Virginia Court of Appeals says, because (1) later in the trial the Department of Social Services asked for a continuance and the father opposed it, and thus "waived his argument" about denial of his earlier continuance request, and also, (2) the trial court later continued the case for other reasons, so the father had plenty of time to question witnesses and present evidence and argument.

A videotape of the child's statements was properly admitted into evidence because the father got adequate notice and him lawyer saw it before trial and was able to prepare for it, the Court says, citing Va. Code Sec. 63.2-1523.

The father also said the Circuit Court erred by admitting the child's statements to her therapist into evidence. That court had excluded them, finding them inadmissible under Va. Code Sec. 63.2-1522, but then admitted some of them on redirect examination of the therapist. Assuming, not deciding, that they were inadmissible, the Court says it was harmless error because the statements were repeated by the same declarant in evidence that was properly admitted, the video tape.

The Court quotes the relevant parts of these Code Sections:

Under Code § 63.2-1522(A), “an out-of-court statement made by a child . . . describing any act of a sexual nature performed with or on the child by another . . . may be admissible in evidence if the requirements of [Code § 63.2-1522(B)] are met.” Code § 63.2-1522(B) provides that the out-of-court statement may be admitted if the child is unavailable to testify, Code § 63.2-1522(B)(1), and the “statement is shown to possess particularized guarantees of trustworthiness and reliability,” Code § 63.2-1522(B)(2).

A statement may not be admitted under [Code § 63.2-1522] unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.

Code § 63.2-1522(C).

Similarly, Code § 63.2-1523 applies to videotaped statements made by a child alleging abuse or neglect. As with Code § 63.2-1522, Code § 63.2-1523(C) provides:

A recorded statement may not be admitted under this section unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses. 

Morman v. Richmond DSS, unpublished, 9-8-15.