Brown v. SPOTSYLVANIA DEPT. OF SOCIAL SERVICES

• Decision Date: 08 June 2004
• Docket Number: Record No. 1961-03-2.
• Citation: 43 Va.App. 205,597 S.E.2d 214
• Court: Virginia Court of Appeals
• Parties: Allen BROWN v. SPOTSYLVANIA DEPARTMENT OF SOCIAL SERVICES.

597 S.E.2d 214

43 Va.App. 205

Allen BROWN v. SPOTSYLVANIA DEPARTMENT OF SOCIAL SERVICES.

Record No. 1961-03-2.

Court of Appeals of Virginia, Richmond.

June 8, 2004.

(Donald R. Skinker, Fredericksburg, on brief), for appellant. Appellant submitting on brief.

Joseph A. Vance, IV (Vance & Associates, Fredericksburg, on brief), for appellee.

Present: ANNUNZIATA, CLEMENTS and McCLANAHAN, JJ.

ANNUNZIATA, Judge.

Allen Brown (Brown) appeals from an order of the Circuit Court of Spotsylvania County terminating his parental rights with respect to his son, D.B. He contends the circuit court erred in terminating his parental rights because: (1) the Spotsylvania Department of Social Services (DSS) did not make reasonable efforts to reunite D.B. with Brown, and (2) DSS did not adequately consider placement of D.B. with Brown's mother, Rosemary Brown. For the following reasons, we affirm.¹

I. Background

On March 21, 2001, DSS visited the home of Allen Brown in response to information that a child living in the home, A.V., was severely bruised. DSS discovered that A.V. had two large gashes on his head, two black eyes, bite marks on his shoulder and inner thigh, and numerous other bruises and scratches on his body and face. It was subsequently determined that A.V. had a fractured skull as well. DSS immediately removed A.V. and four other children living in the home, including Brown's son, D.B. A.V. is not related to Brown.

DSS interviewed the children living in the home, and those interviews revealed that Brown and Shawna Ostberg, another adult woman who lived with Brown, encouraged the children to "punch and scratch A.V. because he [defecated] on himself." The children also stated that A.V. "was made to sleep and eat in the bathroom."

The following day, March 22, 2001, Brown was arrested for child abuse and neglect in violation of Code § 40.1-103. All children were removed from the home, including Brown's son, D.B. On May 9, 2001, the juvenile and domestic relations district court made a finding of abuse and neglect against Brown with respect to D.B. DSS filed a foster care plan with the goal of returning D.B. to Brown's care, which the juvenile court approved on June 1, 2001.

The foster care plan required Brown to obtain and maintain suitable housing and to complete parenting classes, anger management classes, a substance abuse evaluation, and a psychological evaluation. Brown completed the anger management and parenting classes. However, the parenting class instructor concluded that, "based on information received in class, interviews with the couple, and parent counseling sessions[,] the risk for abuse and neglect remains high." She noted that "Mr. Brown... [has] a difficult time recognizing that any of [his] behaviors place [the] children in danger."

On October 31, 2001, the circuit court convicted Brown of the abuse and neglect of A.V. in violation of Code § 40.1-103 after receiving his guilty plea. Brown's expected release date is January 15, 2006.

On January 9, 2002, the juvenile court ruled, pursuant to Code § 16.1-281(B)(3), that DSS no longer had to make reasonable efforts to reunite D.B. with Brown due to Brown's October 31, 2001 conviction. DSS subsequently filed a petition to terminate Brown's parental rights with respect to D.B. on February 8, 2002. The juvenile court ordered the termination of Brown's parental rights on October 7, 2002. Brown appealed the juvenile court order to the circuit court.

Before the juvenile court ordered the termination of Brown's parental rights, Brown's mother, Rosemary Brown, filed a petition seeking custody of D.B. In the circuit court hearing, Troi Coleman, a foster care worker for DSS, testified that she had investigated Rosemary as a possible relative placement for D.B. From interviews with Brown and Rosemary's daughter, Kim Marshall, Coleman learned that the living conditions in Rosemary's home were inadequate and that Brown believed "that his mother was not a possibility" for placement due to her living conditions, age, and work hours. At the time of the interviews, Rosemary resided in a one-bedroom apartment in Connecticut. Marshall "reiterated that space was an issue" in Rosemary's apartment, and Coleman learned that Rosemary in fact supported Marshall as the appropriate relative with whom to place D.B. The New Hampshire DSS informed Coleman about the suitability of Marshall's home. It had recently removed K., another child of Brown, from Marshall's care and it had not yet decided to place K. with Rosemary, notwithstanding the fact that Marshall and Rosemary lived in the same apartment complex at that time; the New Hampshire DSS only allowed Rosemary supervised visitation with K. Contrary to his earlier stated reservations, Brown expressed support for his mother's request for custody at the circuit court hearing. Rosemary testified that she had the ability to care for D.B. if she were granted custody, that she was capable of supporting herself, and that she had moved to a larger apartment.

By order dated July 17, 2003, the circuit court terminated Brown's parental rights and denied Rosemary's petition for custody of D.B. This appeal followed.

II. Analysis

Brown urges two grounds for reversal of the circuit court's decision. First, he argues that the circuit court erred in finding that DSS did not have to make reasonable efforts to reunite D.B. with Brown after Brown's conviction for child abuse and neglect. Second, he argues that DSS failed to consider placing D.B. with Rosemary prior to termination of his parental rights. We address each argument in turn.

A. Standard of Review

When addressing matters concerning the custody and care of a child, this Court's paramount consideration is the child's best interests. Toombs v. Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405, 407-08 (1982). On appeal, we presume that the trial court thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests. Farley v. Farley, 9 Va.App. 326, 329, 387 S.E.2d 794, 796 (1990). The trial court is vested with broad discretion in making decisions "necessary to guard and to foster a child's best interests." Id. at 328, 387 S.E.2d at 795. We will not disturb a trial court's factual findings on appeal unless plainly wrong or without evidence to support them. Id.

B. DSS Was Not Required to Pursue Efforts to Reunite Brown's Conviction for Child Abuse and Neglect

Code § 16.1-281(B) provides in relevant part:

The local board or other child welfare agency having custody of the child shall not be required by the court to make reasonable efforts to reunite the child with a parent if the court finds that ... (3) the parent has been convicted of an offense under the laws of this Commonwealth or a substantially similar law of any other state, the United States or any foreign jurisdiction that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent or a child with whom the parent resided at the time of such offense.²

The statute defines "serious bodily injury" as an injury "that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty." Code § 16.1-281(B).

By order dated January 9, 2002, the juvenile and domestic relations district court found that DSS need not continue its efforts to reunite Brown with D.B. because Brown was convicted of abusing and neglecting A.V., a child who resided with him, in violation of Code § 40.1-103.³ In its final order terminating Brown's parental rights, the circuit court ruled that DSS was no longer required to provide services to Brown because it found "by clear and convincing evidence that Allen Brown [was] convicted of an offense under the laws of this Commonwealth which constitutes felony assault resulting in serious bodily injury."

Although he acknowledges that his violation of Code § 40.1-103 constituted a felony, Brown contends that Code § 40.1-103 cannot be construed as a "felony assault" because it does not contain the common law elements of assault, specifically the intent to cause bodily harm. We disagree because we find that the term "felony assault," as used in Code § 16.1-281(B)(3), means any felonious crime that results in serious bodily injury to a child of the parent or a child who lives with the parent.

Code § 16.1-281(B) was enacted in response to 42 U.S.C. § 671, a legislative effort by the federal government to bring uniformity to the states' foster care and adoption assistance programs in exchange for federal aid. See 42 U.S.C. § 670 et seq. Code § 16.1-281(B) closely mirrors 42 U.S.C. § 671(a)(15)(D). Subsection (D)(ii)(IV) of the federal statute provides that reasonable efforts to reunite the child with a parent need not be made if the parent has "committed a felony assault that results in serious bodily injury to the child or another child of the parent." Neither the federal statute nor Virginia's statute expressly defines the term "felony assault." The federal statute makes clear in other subsections, however, "that Congress expected the state legislators to insert into the applicable state statutes the state crimes that would meet the federal requirement instead of simply copying that portion of 42 U.S.C. § 671(a)(15)(D)." State v. Florance S., 12 Neb.App. 42, 666 N.W.2d 741, 750-52 (2003), overruled on other grounds by State v. Selina N., 266 Neb. 782, 669 N.W.2d 429, 435 (2003); see also 42 U.S.C. § 671(a)(15)(D)(i) ("the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)").

Assault is a common law crime in...