Helen W. v. Fairfax County Dept. of Human Development

• Decision Date: 01 July 1991
• Docket Number: No. 0221-90-4,0221-90-4
• Court: Virginia Court of Appeals
• Parties: HELEN W. and Robert W. v. FAIRFAX COUNTY DEPARTMENT OF HUMAN DEVELOPMENT. Record

Page 25

407 S.E.2d 25

12 Va.App. 877

HELEN W. and Robert W. v. FAIRFAX COUNTY DEPARTMENT OF HUMAN DEVELOPMENT.

Record No. 0221-90-4.

Court of Appeals of Virginia.

July 1, 1991.

John M. DiJoseph (Sattler & DiJoseph, on briefs), Arlington, for appellants.

Ann Gouldin, Asst. County Atty., Helen Leiner (David T. Stitt, County Atty., Robert Lyndon Howell, Deputy County Atty., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and KEENAN, JJ.

KEENAN, Judge.

Helen W. (mother) and Robert W. (father) appeal the trial court's order terminating their residual parental rights to their daughter, Sarah, and granting custody of Sarah to the Fairfax County Department of Human Development (Department). The parents raise five issues on appeal: (1) whether the termination order violated their fourteenth amendment rights to both substantive and procedural due process and equal protection; (2) whether the trial court erred in finding that they did not make reasonable efforts to remedy the conditions which led to the placement of Sarah in foster care; (3) whether the trial court erred in denying their motion for discovery; (4) whether the trial judge erred in denying their motion that he recuse himself; and (5) whether the trial court erred in denying their motion for a jury trial. In addition, the father argues that the trial court erred by terminating his parental rights, because in so doing, the trial court held him responsible for the actions of his wife. We find that the trial court did not err in its decision that termination of both parents' residual parental rights was in the best interests of Sarah. We further find no merit in the parents' procedural arguments. Accordingly, we affirm the decision of the trial court.

Sarah W. is a seventeen year old multiply-handicapped child. She suffers from severe retardation and hearing loss, possessing the functional skills of a two year old child. She has a number of physical disabilities, including a cleft palate, congenital heart disease, visual atrophy in one eye, microcephalas and retarded growth rate. Prior to her placement in foster care, Sarah engaged in self-abusive behavior, was not toilet trained, and was unable to communicate or get around unassisted.

The Department first became involved with the family in November 1983. Prior to May 1986, the juvenile court ordered that Sarah attend the Kilmer Center School, which has a special education program for severely mentally retarded and multiply handicapped students. Sarah attended the school on May 7 and 8, 1986 and May 20, 21 and 22, 1986. The Department obtained an emergency removal order and took custody of Sarah on May 28, 1986, after being apprised by the school of Sarah's absences.

Once Sarah was placed in foster care, the parents were offered weekly supervised visitation with her, and by August 1986, unsupervised day visits were taking place. When the initial unsupervised overnight visit was successful, a second overnight visit was scheduled. The parents did not return Sarah at the appointed time, but instead kept her for a consultation with a physician in Virginia Beach regarding cleft palate surgery. Several days later, Sarah's child protective services worker (worker) received a call from a Virginia Beach physician. The physician reported that the parents were seeking to have Sarah hospitalized for scratches and abrasions, but stated that he did not believe that hospitalization was required. Although the worker instructed the parents to return Sarah to the Department, she received a second call from the father later that day indicating that Sarah was being admitted to Fairfax Hospital.

Sarah was released from Fairfax Hospital on September 4, 1986. Instead of returning Sarah to the Department, the mother took Sarah back to Virginia Beach, where she was again admitted to the hospital. Sarah's worker then contacted the father and asked him to bring Sarah back. When he refused, Sarah's worker went to pick her up from the hospital. Sarah had abrasions on her face. In addition, the skin on her face and legs was raw and bleeding, and she was very agitated. The mother called the police in an attempt to prevent the worker from taking Sarah from the hospital. Overnight visitations were discontinued at this time and replaced with supervised visitation at the Department. Neither parent attended many of the scheduled visitations.

In November 1986, Sarah was diagnosed as having a cholesteatoma in her ear. The parents were opposed to surgery, so a CAT scan was performed which confirmed the need for surgery. Surgery was then scheduled for February 3, 1987. On that day, the parents objected to the surgery being performed, stating that they wanted it done at a different hospital. The surgery was rescheduled for April 13, 1987. The Department obtained court ordered consent to the surgery after Sarah's physician explained that her condition was life threatening. On April 10, 1987, the parents filed a suit in federal court to block the surgery and called the physician, stating that they were opposed to her performing the surgery. Sarah's physician then cancelled the procedure. Sarah finally underwent surgery in July 1987, pursuant to a court order.

Sarah's worker scheduled an unsupervised day visit with the parents in July 1987 prior to her undergoing surgery. The mother did not return Sarah at the scheduled time. Sarah was finally located by the police at the parents' home late that evening. Both parents were present in the home, but neither had notified the Department as to Sarah's whereabouts. In August 1987, during a supervised visit at the Department, the mother took Sarah from the Department and went over to the juvenile court when Sarah's worker left them alone for several minutes. The worker had not given her permission to leave with Sarah.

Visitation was sporadic after this and the mother was often agitated and abusive towards Sarah's worker during the visitation. On one occasion, in February 1988, she wrapped herself around Sarah and screamed that Sarah was being abused. When the father was notified by Sarah's worker that visitations could not continue in this manner, he told the worker that she was trying to break the family apart. Thereafter, Sarah's worker refused visitation unless the father was present. The next visit did not occur until July 1988 and both parents attended. Two subsequent family visits went well.

A third family visit, in August 1988, had to be ended when the mother became agitated and upset. She was verbally abusive to Sarah's worker and foster mother. The following day, Sarah was visibly upset, engaged in self-abusive behavior and had to leave school early. All visitation between the parents and Sarah was terminated at this time.

Both parents were instructed by the foster care services plan and the court order to undergo mental health evaluations and treatment. Cathy Pumphrey, an expert clinical psychologist who evaluated them, diagnosed the mother as suffering from paranoid schizophrenia. She concluded that the mother's ability to parent Sarah was significantly impaired because she was unable to trust anyone and operated under a paranoid delusional system. Pumphrey diagnosed the father as suffering from paranoid personality. She concluded that the parents' paranoid system was well entrenched and that both parents were incapable of parenting Sarah.

The parents saw two different therapists between October 1986 and June 1987. In November 1987, the Department offered the parents the opportunity to participate in a psychiatric evaluation with Dr. Straw, with the understanding that Sarah would be returned home if Dr. Straw concluded that Sarah could be safely returned. Although the parents met with Dr. Straw twice, he was unable to finish his evaluation because the mother refused to meet with him alone.

The parents met with Dr. Straw again in December 1988, after the juvenile court continued the Department's termination proceeding to enable the parents to complete the evaluation and undergo therapy. Dr. Straw asked the father to present a plan that would ensure that Sarah would receive assistance from third party providers, since this was critical to Sarah's safety and well-being. This plan was not presented until the case came back before the juvenile court for review. As a result, Dr. Straw concluded that Sarah could not be safely returned home because the plan did not adequately address his concerns as to third party providers, was not timely presented, and suggested a course of conduct which he believed would only exacerbate the parents' long history of problems in dealing with third party providers.

The juvenile court terminated both parents' residual parental rights on May 11, 1989 and approved the foster care service plan documenting a program goal of adoption. A trial de novo was held in circuit court on September 27, 1989. Prior to the trial, the parents filed a discovery request and a plea in equity, demanding a jury trial. Both motions were denied. At the hearing, they also requested that the trial judge recuse himself, due to his earlier involvement in the foster care placement, medical treatment and school issues. This motion was also denied. The circuit court terminated both parents' residual parental rights pursuant to Code § 16.1-283(C) by order entered January 30, 1990 and approved the foster care service plan recommending a program goal of adoption. This appeal followed.

Initially, the parents argue that the termination order violated their fourteenth amendment rights to the "care, custody and companionship" of their daughter because the trial court failed to consider less drastic alternatives, there was no showing that either parent was unfit, and they were not put on notice of what was required to prevent termination of their rights. Further, they claim that their visitation was improperly terminated without an opportunity to be heard, in violation of...