Farrell v. Warren Cnty. Dep't of Soc. Servs.

• Decision Date: 10 January 2012
• Docket Number: 2283–10–4,Record Nos. 2282–10–4,2284–10–4.
• Parties: Christopher FARRELL v. WARREN COUNTY DEPARTMENT OF SOCIAL SERVICES.Christopher Farrell v. Warren County Department of Social Services.Christopher Farrell v. Warren County Department of Social Services.
• Court: Virginia Court of Appeals

59 Va.App. 375

719 S.E.2d 329

Christopher FARRELL

v.WARREN COUNTY DEPARTMENT OF SOCIAL SERVICES.Christopher Farrell

v.Warren County Department of Social Services.Christopher Farrell

v.Warren County Department of Social Services.

Record Nos. 2282–10–4

2283–10–4

2284–10–4.

Court of Appeals of Virginia, Alexandria.

Jan. 10, 2012.

Thomas D. Logie, Front Royal, for appellant.

Neal T. Knudsen, Front Royal, for appellee.

(Thomas H. Sayre, Front Royal, on brief), Guardian ad litem for the infant children. Guardian ad litem submitting on brief.

Present: PETTY, and ALSTON, JJ., and COLEMAN, Senior Judge.

ALSTON, Judge.

Christopher Farrell (father) appeals the trial court's decision to terminate his parental rights to his three infant children under Code § 16.1–283(B). Father assigns nineteen errors to the trial court's judgment. ¹ For the following reasons, we find no merit in father's assignments of error and affirm the decision below.

I. OVERVIEW

Because this case involves multiple hearings and decisions, we begin with an overview of the process that led to the ultimate result in the trial court. Code § 16.1–251 allows a juvenile and domestic relations district court (JDR) to enter an emergency order allowing the Department of Social Services (Department) to remove a child from his custodian's or parent's custody. The JDR court may issue this order ex parte so long as it is accompanied by a petition alleging that the child is abused or neglected and an affidavit or sworn testimony in person before a judge or intake officer. Code § 16.1–251. That affidavit or sworn testimony must establish that the child “would be subjected to an imminent threat to life or health to the extent that severe or irremediable injury would be likely to result” without the removal and that the Department has made reasonable efforts to prevent the removal but there are no less drastic alternatives that would “reasonably protect the child's life or health pending a final hearing on the petition.” Code § 16.1–251(A).

The JDR court must then hold a preliminary removal hearing within five business days of the child's removal. Code § 16.1–251(B). At the preliminary hearing, the Department must prove by a preponderance of the evidence the same elements required to obtain the emergency removal order, specifically 1) imminent threat of injury or irremediable harm; 2) reasonable efforts to prevent removal from the home; and 3) no less drastic alternative than removal exists, for the JDR court to continue the child's removal from the home. Code § 16.1–252(E). Additionally, the JDR court “shall determine whether the allegations of abuse or neglect have been proven by a preponderance of the evidence,” unless the parents or custodian, guardian ad litem or petitioning department objects. Code § 16.1–252(G). If a party to the proceeding objects, then the JDR court must schedule an adjudicatory hearing on a date within thirty days of the preliminary hearing. Id. If no party objects, and the JDR court finds that the child at issue was abused or neglected, the JDR court must schedule a dispositional hearing for a date within seventy-five days of the preliminary hearing. Code § 16.1–252(H).

Regardless of whether the JDR court requires the Department to prove the abuse or neglect at the preliminary removal hearing or the adjudicatory hearing, the Department will have to establish that the child is abused or neglected under one of the definitions listed in Code § 16.1–228. For ease of reference, throughout this opinion we will refer to the JDR court's and trial court's decision on this issue as the “abused or neglected determination.”

As noted above, once the JDR court finds a child to be abused or neglected, it may proceed to the dispositional hearing and take evidence on one of the dispositions listed in Code § 16.1–278.2. Code § 16.1–278.2(A)(7) allows, inter alia, the JDR court to “[t]erminate the rights of the parent pursuant to [Code] § 16.1–283.” Because this case involves a termination of parental rights under Code § 16.1–283, we will refer to this final stage as either the “dispositional hearing” or the “termination decision.” It is critical to understand that regardless of what subsection of Code § 16.1–283 the Department proceeds under, it must prove each of its allegations by clear and convincing evidence before the JDR court may terminate a parent's parental rights to his or her child. Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S.Ct. 1388, 1391–92, 71 L.Ed.2d 599 (1982). Moreover, a dispositional order entered pursuant to this statutory scheme is a final order from which a party may appeal in accordance with Code § 16.1–296. Finally, when an appeal is taken to the circuit court in a case involving termination of parental rights brought under Code § 16.1–283, the circuit court is obligated to hold a de novo hearing on the merits of the case within ninety days of the perfecting of the appeal. Code § 16.1–296(D).

II. FACTS AND PROCEEDINGS BELOW

On appeal, “we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below, in this case the Department.” Jenkins v. Winchester Dep't of Soc. Servs., 12 Va.App. 1178, 1180, 409 S.E.2d 16, 18 (1991) (citing Martin v. Pittsylvania Cnty. Dep't of Social Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986)).

A. The First Removal

So viewed, the evidence indicated that mother has been married to father at all relevant times in this case, and father is the biological father of all the children involved in this case. Their daughter, E., was born on November 17, 2005. On the same day mother tested positive for cannabinoid, an illegal drug. On November 12, 2006, mother gave birth to premature twins, A. and W., and the twins tested positive for cocaine at birth. Just two days later, on November 14, 2006, mother tested positive for cocaine and tetrahydrocannabinol (“THC”). Mother did not obtain prenatal care prior to the births of the children and did not know she was having twins until shortly before they were born.

On November 17, 2006, the Warren County Department of Social Services (the “Department”) summarily removed all three children from mother and father's home. Following a hearing, the juvenile and domestic relations district court (“JDR court”) found that all three children were abused or neglected as defined in Code § 16.1–228(1), each of them being a child:

Whose parents or other person responsible for his care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions.

In January 2007, the JDR court entered a dispositional order, vesting custody of all three children with the Department. The JDR court also approved foster care plans for the children, requiring both mother and father to: maintain adequate housing, maintain income, provide household bills to the Department, maintain contact with the children, complete parental capacity evaluations, complete substance abuse evaluations and treatment, submit to drug screens, and execute releases so the Department could monitor the situation. In July 2007, the Department returned the three children to mother's and father's physical custody. In October 2007, mother and father completed their obligations under the foster care plans, and the JDR court restored full legal custody to them for all three children.

B. A.'s Medical Problems and the Second Removal

On November 16, 2007, mother and father brought A. to a medical appointment with his pediatrician, Dr. Deborah Dunn. Dr. Dunn expressed concerns to mother and father about A.'s low weight and malnourishment. A. was suffering from what Dr. Dunn later discovered was a milk allergy. Dr. Dunn scheduled a follow-up appointment for December 17, 2007, but neither parent brought A. to see Dr. Dunn on that date, nor did they reschedule the appointment.

On March 17, 2008, mother took A. to the emergency room at Warren County Memorial Hospital (“Warren County”) because he was vomiting uncontrollably.² On April 2, 2008, Dr. Dunn saw A. again for the first time since the November 2007 appointment, when A. was referred to her after mother brought him to the emergency room for vomiting. Dr. Dunn testified that, at this point, A. was extremely thin and very sick, vomiting, and listless. Dr. Dunn admitted A. to Warren County, where he spent a week recovering from his malnourishment. At trial, Dr. Dunn testified that she had never seen another child so malnourished from a milk allergy. Dr. Dunn also noted that A.'s condition would not have become so severe if mother or father had brought A. for his scheduled follow-up visit in December 2007.

On April 30, 2008, father allegedly returned from speaking with someone outside the home and found A. draped over a chair with one side of his body rigid, appearing as if he were having a seizure. Father administered rescue breathing and called for an ambulance. Mother was not present at the home when this incident occurred but drove to the emergency room after hearing of the incident while father stayed at home with the other two children. After Dr. Dunn stabilized A. in the emergency room at Warren County, she transferred him to University of Virginia Children's Hospital (“UVA”). A.'s treating physician and specialists at UVA diagnosed him with subdural hematomas of varying ages along with bilateral retinal hemorrhaging. Dr. Patricia Scherrer, a pediatric critical care specialist who examined A. and oversaw his treatment at UVA, concluded that A.'s head injuries were most consistent with non-accidental trauma. Dr. Scherrer based this conclusion on the lack of history to explain A.'s injuries and further testified that none of the parents' proposed explanations—A.'s allegedly hitting his head on the coffee table or being hit on...