Dove v. Propst, 090319 VACA, 0226-19-3
| Opinion Judge | PER CURIAM. |
| Party Name | ALDINE DOVE, SR. v. HERBERT PROPST AND KAREN SUE PROPST |
| Attorney | (Lynn Svonavec, on brief), for appellant. Appellant submitting on brief. No brief for appellees. (Lisa Knight, on brief), Guardian ad litem for the minor child. Guardian ad litem for the minor child submitting on brief. |
| Judge Panel | Present: Judges Beales, Huff and Senior Judge Clements |
| Case Date | September 03, 2019 |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Clark A. Ritchie, Judge.
(Lynn Svonavec, on brief), for appellant. Appellant submitting on brief.
No brief for appellees.
(Lisa Knight, on brief), Guardian ad litem for the minor child. Guardian ad litem for the minor child submitting on brief.
Present: Judges Beales, Huff and Senior Judge Clements
MEMORANDUM OPINION[*]
PER CURIAM.
Aldine Dove, Sr. (father) appeals a circuit court order awarding custody of his minor child to Herbert and Karen Propst (the maternal grandparents). Father argues that the circuit court erred in awarding legal and physical custody of the minor child to the maternal grandparents because the child's "previous placement with them had failed." Upon reviewing the record and briefs of the parties, we conclude that the circuit court did not err. Accordingly, we affirm the decision of the circuit court.
BACKGROUND1
"Under settled principles of appellate review, we view the evidence in the light most favorable to the [maternal] grandparents, as the party prevailing below, and we grant to the [maternal grandparents] all reasonable inferences fairly deducible therefrom." Rhodes v. Lang, 66 Va.App. 702, 704 (2016) (internal citations and quotations omitted).
Father and Amy Propst (mother) have one child, who was born in 2004. The child had lived with the maternal grandparents "on and off" for approximately twelve out of his fourteen years. In November 2014, the Harrisonburg-Rockingham Juvenile and Domestic Relations District Court (the JDR court) entered a protective order prohibiting father from having contact with the child. The JDR court also ordered that the child reside with the maternal grandparents.
The child had been diagnosed with Asperger's Syndrome and Social (Pragmatic) Communication Disorder. He had a history of reacting "strongly to efforts to restrict or modify his behavior," and had yelled, pushed his grandmother, thrown things at her, and punched holes in the walls. In September 2015, the Harrisonburg Rockingham Social Services District (the Department) became involved with the family, and the child was sent to a residential program. In July 2016, the child was released from the residential program because "it was no longer beneficial to him." Mother filed for custody of the child, and in December 2016, the JDR court awarded custody of the child to mother.
Mother had been diagnosed with "several mental health conditions" and was an alcoholic. Mother complied with her prescribed medication, but continued to drink beer. Mother's condition deteriorated, so the Department and the child asked if he could live with the maternal grandparents again. The maternal grandparents agreed, so in September 2017, the child moved back into their home.
In May 2018, the maternal grandparents filed a motion to amend custody, which mother supported. On August 17, 2018, the JDR court awarded legal and physical custody of the child to the maternal grandparents. Father appealed the JDR court's ruling.
On October 25 and November 19, 2018, the parties appeared before the circuit court.2The maternal grandmother testified that she was seventy-three years old and that she and her husband have lived in the same three-bedroom, one-bath home for fifty years.3 The maternal grandmother explained that the child had his own bedroom. She reported that he had been living with them "on and off since he was about four months old."
The child had a history of mental illness and not getting along with people. The maternal grandmother explained that the child did not like change and reacted negatively to it. She had found that there were days when "he just doesn't want to do anything that you ask him to do" and that it was better to leave him alone on those days. However, since the child had returned from the residential program, his temper and anger had lessened, and his behavior improved. The maternal grandmother testified that she and the child "get along very well most of the time." The child attended eighth grade at the Minnick Center for Alternative Education and was reportedly "doing really great."
At the time of the hearing, mother had been living with the maternal grandparents for several months because mother's apartment flooded and was not habitable. Mother reportedly had secured an apartment the day before the hearing.
The maternal grandmother testified that the child had had very little contact with father's family. She estimated that the child had not seen or spoken with his uncle, Derek Dove, in five or six years.
Dove testified that father had asked him to be available to take custody of the child after the child entered the residential program, and Dove agreed. In approximately September 2018, Dove filed a motion for custody in the JDR court because father had asked Dove to do so.4Although Dove knew where the maternal grandparents lived, he had never contacted them or asked about the child. Dove was aware that the child had "some violent tendencies," but did not know any specific details because he did not "meddle" in other people's business. Dove had not seen the child in years.
Father testified that he objected to the maternal grandparents having custody of the child because he was worried about the child's behavior, the child's exposure to the mother's drinking, the maternal grandparents' ages, and their ability to handle the child. Father wanted the child to be in Dove's or the Department's care.
Mother testified that she supported the maternal grandparents' motion for custody and believed that they could control the child and his behaviors. Mother reported that she regularly took her medication. She explained that when the child came back to her care after he completed the residential program, she worked with the counselors and doctors in getting him the right medication. She acknowledged that the child was "kind of ornery" and that she had had trouble getting him to school on time. Mother also stated that she never consumed any alcohol or drugs while the child lived with her. She "started slipping" after he moved in with the maternal grandparents. She admitted that she drank beer, but described herself as a "functioning alcoholic"...
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