Franklin v. Newport News Dep't of Human Servs.
| Decision Date | 26 April 2022 |
| Docket Number | 1061-21-1 |
| Parties | ALVIN FRANKLIN, III v. NEWPORT NEWS DEPARTMENT OF HUMAN SERVICES |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Christopher R Papile, Judge
Christopher Young for appellant.
Shannon M. Manning, Senior Assistant City Attorney (Thomas J Wright, V, Guardian ad litem for the minor children; Invictus Law, on brief), for appellee.
Present: Judges Beales, AtLee and Chaney Argued at Norfolk, Virginia
Alvin Franklin, III ("father") appeals the circuit court's orders terminating his parental rights to his three biological children. Father argues that the circuit court erred in finding that the evidence was sufficient to terminate his parental rights under Code § 16.1-283(E)(iii) and (iv). Father also argues that the circuit court erred "in admitting the 'surveillance of the incident' into evidence because the video was not properly authenticated by a Custodian of Records." We find no error and affirm the decision of the circuit court.
"On appeal from the termination of parental rights, this Court is required to review the evidence in the light most favorable to the party prevailing in the circuit court." Yafi v. Stafford Dep't of Soc. Servs., 69 Va.App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep't of Hum. Servs., 63 Va.App. 157, 168 (2014)).
Father and Yasmeen Wallace-Franklin ("mother") are the biological parents to the three children who are the subject of this appeal. Mother is also a biological parent to three older children, who are father's stepchildren.[2] All the children, except for mother and father's youngest child who was born later, lived together in father and mother's home during the events giving rise to this case.
On June 30, 2016, K.P., father's stepdaughter, age eleven at the time, was admitted to the hospital with "significant facial injuries," including bruises, one eye that was swollen shut, blood around the mouth and nose, and injuries to her extremities and buttocks. An officer with the Newport News Police Department interviewed K.P. on that date and obtained an arrest warrant for father, the alleged abuser, based on the information received. The Newport News Department of Human Services (the "Department") removed K.P. from the parents' custody and placed her in foster care. Mother, paternal grandmother, [3] and the remaining children went to the police station the next day for interviews. Father hid from authorities.
Mother alleged that K.P.'s injuries arose from an altercation that occurred between K.P. and her brother. Mother stated that she was not home at the time of the incident and that father had been "out in the front yard cutting grass." Paternal grandmother corroborated mother's story. During the interviews, the police officer noticed bruising on the other children who were present. Once the interviews were complete, the Department removed the remaining children from the parents' care based on the physical abuse of K.P. and "concerns that [mother] was not strong enough or able to protect the children from the abuser." During the removal, mother and paternal grandmother tried to abscond with the youngest child, forcing the police to pursue and stop them.
Once the children were in foster care, the police reviewed surveillance footage of the area at the time when the alleged incident took place. The testifying police officer obtained the footage from another detective who downloaded the footage in the "camera room" of the police department. The surveillance video itself was not admitted into evidence at trial, nor was it played at trial; however, the testifying police officer did give his account of what he personally observed on the video.
According to the police officer, the video showed "parts of the incident occurring" and demonstrated that both father and mother were, in fact, present at the time of the incident that caused K.P.'s injuries. The officer testified that the video corroborated the information received from K.P. during her interview at the hospital and contradicted mother's statements. At trial, father objected to the police officer's testimony regarding the surveillance footage, arguing that the video contained hearsay and the video itself was not properly authenticated. The circuit court overruled father's objection.
Based on the information obtained from K.P. and the surveillance footage, the police attempted to locate father. After several months, and with the help of U.S. Marshals and other law enforcement organizations in Virginia and Maryland, authorities located and arrested father in September 2016.
Father ultimately pleaded guilty to malicious wounding under Code § 18.2-51.[4] Father was sentenced to twenty years' incarceration, with ten years suspended, on the condition that he have no unsupervised contact with any minor child, and mother could not supervise any contact. The Department did not have any contact with father during his incarceration.
Following father's arrest and custodial interview, mother returned voluntarily to the police station for another interview. During the interview, mother gave a second, different, story to law enforcement about how K.P. was injured. Mother ultimately pleaded guilty to contributing to the delinquency of a minor and making a false statement during investigation of another's crime.
The Department investigated several relatives as possible placements for the children but determined that none were appropriate. In September 2017, the Department petitioned to terminate father's parental rights to his three biological children. The Newport News Juvenile and Domestic Relations District Court ("JDR court") dismissed the petitions in July 2019. The Department appealed the dismissal of the petitions to the circuit court. In November 2019, the JDR court entered permanency planning orders for father's biological children, approving the goal of "Adoption/Relative Placement." The orders included the specific findings that "Termination of parental rights having been documented as being in the best interest of the child." Father did not appeal these orders.
At trial in circuit court, the Department presented evidence that one of father's biological daughters had been in therapy before her foster placement and continued in therapy following her placement. She also required a period of intensive home therapy in addition to her regular therapy. The foster mother testified that the child was unable to sleep at night without the foster mother sleeping on the floor of the child's bedroom. In addition, the foster family also had to place a chair under the door handle of their front door, check all the doors in the home to ensure that they were locked, place a baseball bat next to the child's bed, and enroll her in karate classes. The child also had an ongoing problem with hoarding food. The foster mother also testified that they had to call the youngest child by a nickname because he shared a name with father, and even hearing father's name would cause the older child to "scream and cry and throw things." Father's other daughter had issues "wetting herself." She also required and participated in "counseling-type" therapy to address her "tantrums," as well as speech therapy.
At the conclusion of the evidence, father moved to strike, which the circuit court took under advisement. Father did not present any evidence. On April 7, 2021, the circuit court entered orders terminating father's parental rights to his biological children under Code § 16.1-283(E)(iii) and (iv). Father's appeal followed.
With respect to evidence surrounding K.P.'s injuries, father argues that the circuit court erred in "admitting the 'surveillance of the incident' into evidence because the video was not properly authenticated by a Custodian of Records." Father maintains that the "indicative information relayed on the disc such as the date and time are hearsay and should not have been allowed to be introduced as evidence."[5] "[T]he admissibility of evidence 'is within the broad discretion of the trial court, and an [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of discretion.'" Castillo v. Loudoun Cnty. Dep't of Fam. Servs., 68 Va.App. 547, 558 (2018) (second alteration in original) (quoting Surles v. Mayer, 48 Va.App. 146, 177 (2006)).
Father's assignment of error and argument regarding admissibility of the surveillance video mischaracterizes the underlying facts of what transpired at trial, as no such video was admitted into evidence. Nor was the video itself played at trial. Rather, the testifying police officer gave a brief account of what he personally observed on the video. Because no surveillance video was admitted into evidence, we will not address father's argument that the video itself was hearsay and not properly authenticated.
Father argues that the circuit court erred in terminating his parental rights with respect to his three children under Code § 16.1-283(E)(iii) and (iv). Specifically, father maintains that the Department failed to prove by clear and convincing evidence that: (a) termination was in the best interests of the children; (b) father was "convicted of an offense that constitutes felony assault, bodily wounding, resulting in serious bodily injury, when the [victim] of the offense was a child with whom the parent resided at the time of such offense;" and (c) father had subjected any child to aggravated circumstances.
"On review, '[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination...
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