Children - § 3-2 (J) - § 3-4 (A)
2011--- Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 2317-09-1
Trial court erred in excluding from evidence in a custody appeal psychological evaluations of the children, based solely on the fact that the evaluations had previously been ordered sealed by the juvenile court. The trial court’s only indication regarding the refusal to admit the evaluations was that the juvenile court “had a reason for sealing them” and that the trial court “would not disturb that ruling.” If the trial court was concerned about the need for the evaluations to remain sealed and inaccessible to the parties, the court should have simply reviewed the evaluations in camera and then ordered them resealed. The mere fact that the juvenile court had ordered them sealed was no reason for the trial court to ignore relevant evidence as it sought to determine the children’s best interests.
(DICTA) Although the evaluations were over one-year old at the time of trial, that fact does not necessarily mean that they were irrelevant to a determination of the children’s best interests. Though mother raised this objection to their entry and use in evidence, the trial court did not cite the age of the evaluations in its refusal to admit them.
2010--- Flanagan v. Flanagan, Va. Ct. of Appeals, Unpublished, No. 0468-10-4
Despite the trial court’s statement that it was “not in a position to articulate what specific inappropriate conduct in the form of an act, or series of acts, might have occurred between the child and her father,” the trial court did not err in awarding sole physical and legal custody to mother with supervised visitation to father, based on the court’s finding that “it is more likely than not that this inappropriate act or series of acts occurred.” The trial court was not required to make specific findings of acts of sexual abuse in order to consider evidence related to sexual abuse when deciding the best interests of the child.
2010---Alexander v. Allen, Va. Ct. of Appeals, Rec. No. 1680-09-1
he following language, contained in the trial court’s opinion letter, failed to meet the requirement, pursuant to Virginia Code §20-124.3, that the trial court communicate case-specific reasons for custody and visitation awards: “after considering the mandatory provisions of Code §20-124.3, and after considering the testimonies of the witnesses, the parties, the recommendation of the guardian ad litem and the best interest of the child, the Court orders….”
2009---Haring v. Haring, Va. Ct. of Appeals, Unpublished, No. 1085-08-4
Trial court was not required to communicate the basis of its decision finding no material change in circumstances pursuant to Virginia Code §20-124.3. Communication pursuant to the statute is required only when the court makes a determination as to the best interests of the child. However, because the court ruled that no material change in circumstances existed, it did not reach the “best interests of the child” prong of the test, and was therefore not required to communicate the basis of its decision pursuant to §20-124.3.
2003---Kane v. Szymczak, 41 Va. App. 365
When ruling on the “best interests” of a child, Va. Code §20-124.3 requires the trial court to identify the fundamental, predominating reason or reasons underlying its decision. This level of specificity does not require the court to address all aspects of the decision making process, as one would expect from comprehensive findings of fact and conclusions of law, nor require the court to quantify or elaborate as to exactly what weight or consideration it has given to each of the statutory factors. However, the statutory command cannot be satisfied by formulaic and generalized explanations such as “I’ve considered all the factors and I rule thus...” or “the best-interest test generally favors...” To satisfy the statute, the trial court must provide a case-specific explanation of the fundamental, predominating reason or reasons for the decision. Arguments that the parties could infer the court’s underlying reasons from reports, or closing arguments, or some other contextual source should likewise fail. If the parties must infer the reasons, it is probably because the judge did not communicate them directly. An unspoken and unwritten inference, no matter how strong, cannot substitute for what the statute requires: an express communication to the parties of the basis for the decision.
2011---Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 0068-11-2
The trial court did not err in ordering mother to pay the pro-rata costs for her visitation with the children while the children were with her in the U.S., nor in requiring her to pay the entire costs of her visitation with the children in Japan, where they resided with the father. Despite the fact that the father earned significantly more than the mother, the father, as primary custodian, bore most of the costs of the children’s upbringing, and resided with the children in Tokyo, Japan, which the court noted was “one of the most expensive cities in the world.” The mother worked full-time and lived with her own father, and demonstrated through the hiring of an expert and the payment of over $150,000 in legal fees that she had the ability to pay the costs of visitation.
2011--- Freeman v. Golden, Va. Ct. of Appeals, Unpublished, No. 1550-10-4
Having determined that the father’s inability to agree on co-parenting matters with the mother negatively affected the child, the trial court did not err in granting mother (i) all final decision-making authority with regard to the child’s sporting and extra-curricular activities, (ii) allowing mother to select one sport that could occur during father’s visitation time, thereby requiring father to meet all obligations for that sport that occurred during his time, and (iii) allowing the mother to give the nine-year-old child a cell phone, over father’s objection, that the child could use to make and receive calls from the mother while in father’s custody.
2011---Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
The trial court did not err in granting father decision-making authority regarding the child’s education and daycare arrangements, where the mother had placed the child in three different day care facilities in three years, had used at least three different baby sitters in the same period, and had used a nanny to care for the child for extended periods of time, even when the mother wasn’t working. Where the parents’ exercise of joint responsibility for and authority to make decisions for the child is not consistent with the child’s best interest, the court may modify their joint legal status by fashioning and applying any combination of joint legal and physical custody which the court deems to be in the best interest of the child.
2011--- Barrett v. Barrett, Va. Ct. of Appeals, Rec. No. 0753-10-3
The trial court did not inappropriately decide a matter of child support by requiring as part of a custody/visitation order that Father be responsible for all transportation to and from visitation. The requirement merely apportioned the responsibility of transportation, not the costs. The legislature’s inclusion of the cost of visitation travel as a permitted factor in deviating from a general child support calculation does not mean that a determination of who is responsible for transportation as it relates to visitation is an imposition of costs and thus solely a child support matter.
1995--- Forrest v. Ruhlin, Va. Ct. of Appeals, Unpublished, No. 2256-94-4
Trial court did not err in ordering that mother's new husband not make derogatory comments about the children's father in the presence of the children. Mother's husband had testified as a witness, was present in court, and was subject to the court's authority. In exercising its authority to promote the best interests of children, a trial court may impose restrictions which affect non-parties.
(A) Termination of Parental Rights
2007---Battle v. City of Portsmouth Department of Social Services, 2007 Va. Unpublished, App. 221
Trial court did not err in terminating both Mother’s and Father’s parental rights under Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Mother’s overwhelming addiction to illicit drugs was the basis for the abuse and neglect determination by the Portsmouth Juvenile & Domestic Relations District Court. Additionally, Father’s mental deficiency is of such severity that there is no reasonable expectation that he will be able to undertake responsibility for the child. Nothing in the record suggested additional time will make either parent able to properly care for the child. In the twenty-three months that the child had been in foster care, neither parent had completed the services offered to remedy the problems that brought the child into foster care.
2007---Buchanan v. Bedford County Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 2318-06-3
Trial judge did not err in terminating appellant’s residual parental rights to her minor child pursuant to Va. Code §16.1-283(C)(2). Mother was diagnosed with bipolar schizophrenia and schizophrenia with delusional episodes, and suffers from alcoholism, and child was born with severe medical problems. Mother missed meetings convened by family assessment and planning teams as well as individual counseling sessions and a substance abuse evaluation, did not attend parenting classes, lived in inappropriate housing, and was unemployed. In general, Mother was unable to show any progress in meeting the child’s needs.
2007---Caddell v. Spotsylvania Department of Social Services, 2007 Va. App. Unpublished, 92
Trial court did not err in terminating Father’s parental rights. Father was incarcerated for sexual crimes involving his stepson and acknowledged extensive alcohol and marijuana use. Father also revealed prior convictions for driving under the influence, domestic violence, and sexual battery. Additionally, Father had no plans for housing or employment upon his release from prison.
2007---Hart v. Arlington County Department of Human Services, 2007 Va. App. Unpublished, 200
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283. Department of Human Services proved by clear and convincing evidence that termination of Father’s parental rights was in his child’s best interest. The evidence proved that the child lived with his Mother until the Mother was no longer able to care for him. During that time, Father’s whereabouts were unknown. When Father requested custody after the child as placed in foster care, Department of Human Services found that Father’s criminal history included “barrier crimes” that prevented Department of Human Services from placing the child in Hart’s care. Also, the trial court did not abuse its discretion in denying a motion for continuance so that Father could have additional time to assist counsel and for family members to file for custody before his parental rights were involuntarily terminated. The evidence showed Father never gave the names of his relatives to Department of Human Services and that even when his relatives heard that the child was in foster care, they did not inquire about the child or file a petition for custody.
2007---Jackson v. City of Portsmouth Department of Social Services, 2007 Va. App. Unpublished, 206
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283. At the time of the termination hearing, the child had been in foster care for more than two years. During that period, appellant made no provisions for or made any contact with the child. The evidence proved appellant completely failed to avail herself of the assistance and resources provided by Department of Social Services. Appellant did not maintain contact with Department of Social Services or with the attorney representing her in the termination action.
2007---Kasey v. Roanoke City Department of Social Services, 2007 Va. App. Unpublished, 147
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Both children have significant special needs that require highly competent skills, which Mother simply does not possess. Mother’s lack of parenting skills was revealed not only by her psychological evaluation, but also through her impact on the children, both of whom shared a “trauma bond.” Based upon such evidence, the trial court properly concluded that it was not reasonably likely that the conditions which resulted in the children’s neglect or abuse could be substantially corrected or eliminated so as to allow their safe return to Mother within a reasonable period of time.
2007---Luciano v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 169
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(C)(2). The evidence sufficiently proved that he was unwilling or unable within a reasonable period of time to remedy substantially the conditions causing the child to be placed in Department of Social Services custody. He failed to participate in and/or complete programs and services offered by Department of Social Services. He never found safe housing for the child. He was unemployed. He did not maintain contact with Department of Social Services. He had difficulty managing his anger. He was unstable as reflected by his recent attempt to commit suicide. He suffered from mental conditions requiring treatment and management.
2007---Rothgeb v. Harrisonburg Rockingham Department of Social Services, 2007 Va. App. Unpublished, 23
Trial court did not err in terminating Mother’s parental rights to her three children pursuant to Va. Code Section 16.1-283(B). Evidence showed, inter alia, the children were subjected to repeated instances of physical abuse by Father, and Mother failed to protect them; Mother and Father often engaged in physical violence with each other in view of the children; the children were found to be inadequately supervised on numerous occasions; while she was in training with the National Guard she did not maintain contact with the children; all the children had special needs; and Mother demonstrated inadequate parenting skills.
2007---Shallcros's v. Hanover County Department of Social Services, Va. Ct. of Appeals, Unpublished, No. 1861-06-2
Trial court did not err in terminating Mother’s parental rights pursuant to Va. Code §16.1-283(B). Mother, an admitted alcoholic, made no effort to follow the treatment recommendations as Department of Social Services required. In fact, after the child entered foster care, Mother continued to drink and to engage in behavior resulting in criminal convictions. Mother was incarcerated for a significant portion of time while the child was in foster care.
2007---Snead v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 12
Trial court did not err in terminating appellant’s parental rights to her child pursuant to Va. Code §16.1-283(B) and Va. Code §16.1-283(C). Mother was diagnosed with schizoaffective disorder and denied being pregnant until the day the child was born and at times later still denied she had a child. Expert testified that Mother was unable to plan appropriately, unable to understand what she sees, and unable to execute a response to events. Mother was unable to complete or even begin recommended services offered to her and often went without taking her medication.
2007---Sprouse v. Orange County Department of Social Services, 2007 Va. App. Unpublished, 79 Trial court did not err in terminating father’s parental rights under Va. Code §16.1-283(C)(1) and Va. Code §16.1-283(C)(2) where the record indicated that it would be in the child’s best interest by clear and convincing evidence.
2007---Sylvia v. Hampton Department of Social Services, 2007 Va. App. Unpublished, 109
Trial court did not err in by terminating parental rights pursuant to Va. Code §16.1-283(C)(2). While Mother completed most of the Department of Social Services recommendations, she still did not have the cognitive ability to care for the child. She could not tell time, thus imperiling the child’s need to be fed and timely given medication. The evidence clearly proves that additional time would not remedy Mother’s cognitive functioning nor her inability to ensure the health, safety, and well-being of the child.
2007---Trent v. Prince Edward County Department of Social Services, 2007 Va. App. Unpublished, 168
Trial judge did not err in terminating appellant’s parental rights under Va. Code §16.1-283(B). At the time of the termination hearing, the child was forty-six months old and had spent forty-one of those forty-six months in foster care. The child was first removed from Mother at four months of age when it was discovered the child had shaken baby syndrome. The baby was removed again when Mother was found to be with her estranged boyfriend in violation of a condition of the child’s return to Mother’s custody. Additionally, following a weekend visit Mother returned the child with a third-degree burn. Despite the provision of rehabilitative services, Mother failed to show that she is capable of resuming responsibility in caring for the child.
2007---Watkins v. City of Hampton Department of Social Services, 2007 Va. App. Unpublished, 268
Trial court did not err in termination of Father’s parental rights pursuant to Va. Code §16.1-283(C)(2). The termination hearing occurred while Father was incarcerated. Department of Social Services attempted to reunite the two children with their Mother, but her parental rights were eventually terminated. Father failed to maintain any contact with the children while he was in incarcerated. Father failed to participate in substance abuse counseling or job training while he was incarcerated. After Father was released from incarceration, he did not secure employment, but was arrested and convicted on a new charge.
2007---Wilson v. Fairfax County Department of Family Services, 2007 Va. App. Unpublished, 116
Trial court did not abuse its discretion in denying Mother’s motion to vacate the order terminating her residual rights to her son. Mother signed the order as “Seen and Agreed.” Her parental rights to her four older children already had been terminated and, therefore, Mother certainly understood the consequences of a parental rights termination proceeding. Mother argued that she had signed the order under duress, but was unable to specify how she had been under duress. Mother also claimed there were family members who could care for her son, but was unable to give the court any names.
2007---Wooten v. Henrico County Department of Social Services, 2007 Va. App. Unpublished, 96
Trial judge erred in terminating Mother’s parental rights where the sole basis for the termination was Mother’s incarceration. Mother has demonstrated the willingness and ability to take advantage of all the parenting and skill development classes offered to her during her incarceration and has had continual contact with her child during her incarceration. Upon her release, Mother has a plan that will enable her to pay off her debts, provide stable housing, and provide stable care for her child.
2006---Abbitt v. Lynchburg Division of Social Services, 2006 Va. App. Unpublished, 484
There was no error in trial court’s decision terminating Father’s residual parental rights. Division of Social Services presented clear and convincing evidence that Father could not correct the conditions that resulted in abuse and neglect of the child within a reasonable period of time and that Division of Social Services provided adequate services based on Father’s needs. Father would not leave Mother despite her history of child abuse. Father failed to keep some of his appointments with professionals, and he struggled with basic safety concepts.
2006---Butler v. Culpeper County Department of Social Services, 48 Va. App. 537
Trial court properly relied on entrustment agreements entered into between appellant Mother and Department of Social Services, and clear and convincing evidence supported terminating Mother’s parental rights to her two children. Because appellant did not provide the Department of Social Services with written revocation of the entrustment agreements, they were properly before the court. Moreover, evidence supported termination as Mother, inter alia, suffers from drug addiction, has been incarcerated due to her conduct, and is not reasonably likely to correct the problems.
2006---Cartwright v. Cartwright, 49 Va. App. 25
Father, non-custodial parent, was not invested with “care and custody” of his children and thus could not be relieved of parental rights and obligations. Thus, his petition for voluntary relinquishment and termination of his parental rights was properly denied.
2006---Fauncher-Whitney v. City of Hampton Department of Social Services, 2006 Va. App. Unpublished, 449
Trial court did not err by terminating appellant’s parental rights to her child pursuant to Va. Code §16.1-283(C)(2). Family failed to clean home adequately and remove safety hazards. The four-year-old child weighed 20 pounds. She frequently cried at school. She suffered from a genetic disorder, severe mental retardation and physical delay. Since being in foster care, her condition had improved drastically. She gained weight, learned to communicate, and was placed in a school that could address her special needs. Mother did not take advantage of visitation opportunities. In short, Mother did not remedy substantially the conditions which led to or required the continuation of child’s foster care.