Bristol Dep't of Soc. Servs. v. Welch
| Decision Date | 04 November 2014 |
| Docket Number | Record Nos. 0532–14–3,0558–14–3. |
| Court | Virginia Court of Appeals |
| Parties | BRISTOL DEPARTMENT OF SOCIAL SERVICES v. Maggie S. WELCH. Patricia E. Smith, Guardian Ad Litem for Minor Child v. Maggie S. Welch. |
Edward G. Stout (Curcio & Stout, Bristol, on brief), for appellant Bristol Department of Social Services.
Patricia E. Smith, Alexandria (Bradford & Smith, on brief), Guardian ad litem, for the minor child.
Michael A. Bishop (Michael A. Bishop, P.C., Bristol, on briefs), for appellee.
Present: PETTY, HUFF, JJ., and ANNUNZIATA, S.J.
The Bristol Department of Social Services (DSS) and Patricia E. Smith, Guardian ad litem, appellants, appeal from the circuit court's denial of the petition to terminate the parental rights of Maggie S. Welch with respect to her minor child, C.W.1 The appellants argue that the circuit court erred in: (1) delaying its decision regarding the termination of Welch's parental rights, (2) ignoring the statutory time frame in which the parent may remedy the conditions that led to foster care, and (3) failing to protect the best interests of the child. For the following reasons, we affirm in part and dismiss in part.
On appeal, we view the evidence “in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom.” Logan v. Fairfax Cnty. Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 462 (1991).
On December 26, 2010, DSS removed two children from Welch's care because of their suspicious injuries. Welch's three biological children, B.N.G., B.S.G., and C.W., were also removed from her care on that day. At the time of removal, B.N.G. was seven years old, B.S.G. was two years old, and C.W. was five months old.
On February 16, 2011, DSS prepared an initial foster care plan with the goal of returning C.W. to his own home within a year. DSS expressed concerns about returning C.W. and the other children to Welch's care because of her history of domestic violence with her husband and because of the trauma that the children suffered from witnessing the abusive relationship. DSS referred Welch to various services, including parenting classes, individual counseling, anger management classes, job searches and programs, parenting and psychological assessments, and visitations as scheduled by DSS.
Welch was arrested on federal charges on June 7, 2011. Welch pled guilty to drug conspiracy charges and the knowing use and carrying of a firearm in furtherance of a drug trafficking crime.
DSS prepared a revised foster care plan with the goal of adoption. DSS stated in the plan that Welch had refused individual counseling and “continued her lifestyle of drugs, dealing drugs, and remaining involved with convicted felons.” On February 8, 2012, the juvenile and domestic relations district (JDR) court terminated Welch's residual parental rights to B.N.G., B.S.G., and C.W. Welch appealed to the circuit court.
On May 8, 2012, the circuit court heard evidence on DSS's petitions to terminate Welch's residual parental rights to her three children. Welch testified that she had not resided with her husband since December 2010 and that her relationship with him was over.
On October 19, 2012, the circuit court terminated Welch's residual parental rights with respect to the two older children, B.N.G. and B.S.G. The circuit court found that B.N.G. was a special needs child and that B.S.G. “has been diagnosed with Post Traumatic Stress Disorder
, Developmental Coordination Disorder, anxious moods, and is asthmatic.” This Court affirmed the circuit court's decisions regarding B.N.G. and B.S.G. by memorandum opinion dated May 21, 2013. The circuit court withheld its decision on the termination of Welch's residual parental rights with respect to C.W. until the outcome of Welch's federal sentencing hearing was known.
On November 8, 2012, Smith filed a motion requesting that the circuit court rule on the termination of Welch's residual parental rights with respect to C.W. The circuit court again reserved the decision regarding C.W., noting that Welch's anticipated release date from federal custody was July 28, 2013.
Smith and DSS filed a second motion, which was heard on September 5, 2013. Welch had been released from federal custody under terms and conditions. She was living at a half-way house and working at a nursing home. Welch testified that she would be eligible for release to house arrest in November 2013 and that she would continue her job at the nursing home. Welch stated that she had a trust fund to finance housing and support for herself and her child. Welch testified that she had not seen C.W. since February 2011.
While incarcerated, Welch completed a parenting certificate and acted as a mentor to other inmates who suffered drug addiction. Both Welch and her father testified that he stood behind her during the entire period and that he would continue to support and assist her in the future.
The circuit court concluded that DSS failed to prove that terminating Welch's parental rights was in the best interests of C.W. On February 29, 2014 the circuit court entered a final order denying DSS's petition to terminate. These appeals followed.
First, the appellants argue that the circuit court violated C.W.'s statutory right to expeditious review under Code § 16.1–296(D) by withholding judgment regarding the termination of Welch's parental rights. However, it was within the discretion of the trial court to reserve judgment following the May 2012 hearing.2 Furthermore, this issue is now 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.’ ” Baldwin v. Commonwealth, 43 Va.App. 415, 421, 598 S.E.2d 754, 757 (2004) (quoting Hallmark v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967) ). The issues presented must be “live” at all stages of review. Id. “ ‘Courts are not constituted ... to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative.’ ” Id. (quoting Commonwealth v. Harley, 256 Va. 216, 219–20, 504 S.E.2d 852, 854 (1998) ). Where there is no actual controversy, the case will be dismissed as moot. Id. And even, as is the case here, “when the parties do not raise the issue of mootness, appellate courts should raise the issue sua sponte when the record does not present a live case or controversy.” Id. at 421–22, 598 S.E.2d at 757.
The circuit court's ultimate termination decision regarding C.W., entered on February 19, 2014, rendered moot any justiciable challenge to the court's delay in making that decision. See Najera v. Chesapeake Division of Soc. Servs., 48 Va.App. 237, 241, 629 S.E.2d 721, 722 (2006) (). Because the circuit court decided to deny DSS's petition to terminate, it “no longer matters” how much time it took to do so. Id. at 241, 629 S.E.2d at 723. There is no relief that this Court can grant appellants, even if we were to agree that the circuit court should not have delayed its decision, because the decision has already been made.3 Therefore, the appeal as to the question of whether the circuit court should have made its decision at an earlier time is dismissed as moot. See id.
Next, appellants argue that the circuit court erred in denying DSS's petition to terminate Welch's parental rights to C.W. We disagree.
“In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests.” Kilby v. Culpeper Dept. of Soc. Services, 55 Va.App. 106, 110, 684 S.E.2d 219, 220–21 (2009). “[W]here, as here, the court hears the evidence ore tenus, its finding is entitled to the same weight accorded a jury verdict, and it will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Martin v. Pittsylvania Cnty. Dep't of Soc. Servs., 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986). “ ‘[W]e presume the circuit court thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests.’ ” T.S.G. v. B.A.S., 52 Va.App. 583, 588, 665 S.E.2d 854, 857 (2008) (quoting Toms v. Hanover Dep't of Social Servs., 46 Va.App. 257, 265–66, 616 S.E.2d 765, 769 (2005) ).
The United States Supreme Court has recognized that the Due Process Clause protects the “fundamental right of parents to make decisions concerning the care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). That Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982).
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