Yafi v. Stafford Dep't of Soc. Servs.

• Decision Date: 27 November 2018
• Docket Number: Record No. 0529-18-4
• Citation: 69 Va.App. 539,820 S.E.2d 884
• Parties: Adam YAFI v. STAFFORD DEPARTMENT OF SOCIAL SERVICES
• Court: Virginia Court of Appeals

69 Va.App. 539

820 S.E.2d 884

Adam YAFI

v.STAFFORD DEPARTMENT OF SOCIAL SERVICES

Record No. 0529-18-4

Court of Appeals of Virginia.

NOVEMBER 27, 2018

James J. Ilijevich, Fredericksburg, for appellant.

(Catherine Miller Saller ; Elizabeth Carpenter-Hughes, Guardian ad litem for the minor child, Stafford; Williams Stone Carpenter Buczek, PC, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Present: Judges Humphreys, Decker and Russell

OPINION BY JUDGE ROBERT J. HUMPHREYS

By order dated March 27, 2018, the Circuit Court of Stafford County (the "circuit court") granted the Stafford Department of Social Services’ ("DSS") petition to terminate appellant Adam Yafi’s ("Yafi") parental rights to L.Y., pursuant to Code § 16.1-283(E)(iii) and 16.1-283(E)(iv). The circuit court found by clear and convincing evidence that termination was in L.Y.’s best interests after Yafi was convicted of felony child abuse resulting in serious bodily injury to Y.Y., L.Y.’s half-brother, and because Yafi subjected Y.Y. to aggravated circumstances.¹ On appeal, Yafi alleges the following assignments of error:

1. The [circuit] court erred by finding that the parental rights of the appellant should be terminated when the Department of Social Services failed to present sufficient evidence that it provided reasonable and appropriate efforts to assist the appellant to remedy the conditions which led to the child’s foster care placement.

2. The [circuit] court erred by finding that the parental rights of the appellant should be terminated pursuant to Va. Code Ann. § 16.1-283 (E) when the Department of Social Services failed to present sufficient evidence that the appellant was the cause of injuries to a minor child and that termination was in the best interest of the minor child when there was no evidence that she was a victim of abuse or neglect.

I. BACKGROUND

On January 27, 2017, Deputy Scott Fulford ("Deputy Fulford") of the Stafford County Sheriff’s Office received a rescue call for the Yafi residence. Deputy Fulford was later told to meet the ambulance and first responders at Mary Washington Hospital.

At the hospital, Deputy Fulford observed the ambulance transporting Y.Y., a four-year-old child. Deputy Fulford initially observed "a very large lump" on the center of Y.Y.’s forehead, as well as other visible bruises and scratches. Upon closer examination, Deputy Fulford observed "red marks on his left cheek[,]" "a large black and blue bruise on his right temple[,]" and red scratch marks on his neck that "appeared to be recent, as well as scratch marks that appeared to be old." Deputy Fulford also noted numerous bruises and abrasions on Y.Y.’s left shoulder, left wrist, and right forearm, and both elbows and knees. As Y.Y. was being examined, Deputy Fulford was able to take photographs of the child’s injuries. Although Y.Y. appeared to be asleep to Deputy Fulford, Y.Y.’s injuries were so severe that they caused a coma, seizure, permanent blindness, permanent brain tissue loss, and a change in Y.Y.’s remaining brain tissue. Additionally, Y.Y.’s T1 vertebra was "crushed into multiple pieces."

Due to the nature and severity of Y.Y.’s injuries, Y.Y. was flown to the pediatric intensive care unit at Virginia Commonwealth University ("VCU") Medical Center. There, Y.Y. was treated by Dr. Robin Foster ("Dr. Foster"), a pediatric emergency medicine physician and director of the child protective team. When Dr. Foster first examined Y.Y. on January 27, 2017, she noted that

[Y.Y.] was intubated in our pediatric intensive care unit, which means he had a breathing tube

in and was being mechanically ventilated. His exam was notable for bruising that was present in the middle of his forehead that was somewhat purplish in coloration. Bruising was present on the right side of his eye, lateral to his eye. He had a large hematoma bruise on his left scalp that was soft and boggy

and had linear abrasions through the surface of it. His right eyelid was drooping, which is called ptosis

. His right eye was laterally deviated and stuck over here off center. His right pupil was blown and very enlarged and fixed and would not respond to light. And his left pupil was smaller, but also not responsive to light.

On his eye exam, you could see blood that was pooling in the back of the eye using an ophthalmoscope. He had several other scattered bruises on his trunk and a large circular bruise on the inside of his right forearm and several scattered bruises on his lower extremities as well. He was agitated and moving his arms and legs in sort of a random fashion, not consistent with a seizure.

No family members were present when Dr. Foster first observed Y.Y. Dr. Foster also noted that, while Y.Y. was awake when she first met him, "his arms and legs were moving and thrashing around with the airway breathing tube

in place ... [h]e was trying to talk around the tube, which you can’t really do, ... [a]nd so he held on to my hand and wouldn’t let go."

At some point, Dr. Foster reviewed the Mary Washington Hospital records that contained reports from emergency personnel who responded to the Yafi residence. Dr. Foster found that the first responders observed Y.Y.’s limbs in an extended, decerebrate posture. According to Dr. Foster, such posturing is consistent with chronic brain injury

or a seizure. The records also reflected that Y.Y. was foaming at the mouth, which, according to Dr. Foster, was also consistent with a seizure. Doctors at Mary Washington Hospital rated Y.Y. as a three on the Glasgow Coma Scale.²

When Dr. Foster reviewed CT and MRI scans taken at both Mary Washington Hospital and VCU Medical Center, she observed various blood collection areas on both sides of Y.Y.’s brain. Dr. Foster described that Y.Y. suffered from subacute, acute, and chronic blood collection. As explained by Dr. Foster, subacute blood collection "is indicative of blood that is more than three or four days of age and less than two weeks of age." Acute blood collection "is less than four to seven days" of age. Chronic blood collection "is greater than two weeks of age." Dr. Foster compared Y.Y.’s injuries to those suffered by an inadequately restrained individual involved in a "high speed motor vehicle accident in which there is a rapid acceleration-deceleration and the brain shifts within the skull[.]"

Y.Y. remained hospitalized at VCU Medical Center from January 27 to February 20, 2017. During that time, Y.Y. suffered from multiple ongoing issues in addition to his injuries. Y.Y. "had significant issues with feeding ... secondary to [his] underlying neurologic issues." Y.Y. also worked with a number of specialists to aid with his rehabilitation, including occupational therapists, physical therapists, and neurologists. Psychologists and psychiatrists also treated Y.Y. because he suffered from post-traumatic stress disorder

and anxiety.

Shortly before Y.Y.’s transport to VCU Medical Center, Kathryn Burner ("Ms. Burner"), a child protective services worker and DSS employee, went to Mary Washington Hospital and observed Y.Y. According to Ms. Burner, Y.Y. was unconscious at the time and appeared to have multiple injuries. While at the hospital, Ms. Burner learned that Y.Y.’s father, Yafi, had been brought to the hospital on January 24, 2017, following an attempted suicide. Yafi was in intensive care, unresponsive, and on life support at that time.

Ms. Burner eventually travelled to the Yafi residence after learning that another child, L.Y., resided at the home. Police officers accompanied Ms. Burner. There, she met Hayat Benfaraj ("Benfaraj"). Also present at the residence was Y.Y. and the children’s paternal aunt, Majida Yafi ("Majida").

Majida arrived in the United States from Morocco on January 26, 2017. After visiting with her hospitalized brother, Yafi, at Mary Washington Hospital, Majida went to the Yafi residence and asked to see Y.Y. Majida wanted to see Y.Y. because she had never met him in person. Benfaraj initially told Majida that Y.Y. was asleep. At some point, however, Benfaraj brought Y.Y. to visit with Majida. Majida immediately noticed that Y.Y. could not see and asked Benfaraj what was wrong with Y.Y. and his eyes. Benfaraj told Majida that Y.Y. had an eye infection

, which he might have caught from L.Y. Majida could hear Y.Y. crying after Y.Y. returned to his bedroom. After checking on Y.Y. and sitting with him, Majida witnessed Y.Y. begin to suffer a seizure. The seizure prompted Majida to call 911.

Ms. Burner observed various abnormalities during her tour of the Yafi residence. For example, Ms. Burner noted that Y.Y.’s room did not have any "decorations or toys or anything to indicate a little boy’s room." L.Y.’s room, however, did have those things. Benfaraj also showed Ms. Burner the area where Y.Y. allegedly injured himself and even demonstrated how. According to Ms. Burner, "[Benfaraj] would get down on the floor and bang her head ... [s]he banged herself up against the wall where the dining table was in the kitchen area going down the hall. She also demonstrated in the bathroom banging herself on the floor." Benfaraj told Ms. Burner and the police that she did not seek medical attention for Y.Y. earlier because Y.Y. did not have medical insurance.

In addition to explaining the causes of Y.Y.’s injuries, Benfaraj showed police officers a cell phone video of Y.Y. In the video, an officer observed Y.Y. "slumped down" on a couch. The officer could observe multiple bruises on Y.Y.’s head and forehead, as well as one of Y.Y.’s eyes partially closed with a small pupil. Subsequently, an "agitated and somewhat accusatory" male voice asked Y.Y., "what happened to him, why he would do this and asking him over and over again, ... why would you do this to yourself." After seizing the cell phone and obtaining a search warrant for its content, the officer learned that the time stamp on the video was January 23, 2017.

Ms. Burner subsequently prepared a safety plan with Majida so that...