Hogue v. Alexandria Department of Social Services, Record No. 3063-03-4 (VA 10/5/2004)
| Decision Date | 05 October 2004 |
| Docket Number | Record No. 3063-03-4. |
| Court | Virginia Supreme Court |
| Parties | LISA HOGUE v. ALEXANDRIA DEPARTMENT OF SOCIAL SERVICES. |
Appeal from the Circuit Court of the City of Alexandria, Richard J. Jamborsky, Judge Designate.
Dale Warren Dover for appellant.
Mary Elliott, Assistant City Attorney (Ignacio Pessoa, Assistant City Attorney, on brief), for appellee.
Stephen F. Moller, Guardian ad litem for the infant children.
Present: Judges Frank, Clements and Senior Judge Willis
Lisa Hogue's (appellant) parental rights were terminated pursuant to Code § 16.1-283(B) and (C). On appeal, she contends the trial court erred in (1) failing to rule the Interstate Compact on the Placement of Children is unconstitutional; (2) not granting specific performance of a foster care review order; and (3) finding the Alexandria Department of Social Services pursued reasonable efforts to assist appellant in remedying the conditions which precipitated removal of the children after the goal was changed from return to parent to placement with relative. For the reasons stated, we find no error and affirm the trial court's judgments.
LJ, L, and D, as well as their two older half sisters, lived in the home of appellant, their mother, and Leroy Alexander (Alexander), the father of L, D and another child, J.
Appellant and Alexander had a history of drug abuse and domestic violence requiring intervention by Alexandria Department of Social Services. Alexandria Department of Social Services first sought and obtained child protective orders against appellant and Alexander in September of 1999 due to continued domestic violence and substance abuse issues in the home. The children remained in the home although problems of domestic violence and substance abuse continued.
LJ, L, and D initially came into the care of the Alexandria Department of Social Services on July 28, 2000 when preliminary removal orders were first entered due to "domestic violence in the home which severely affects the health and safety of the child." The preliminary orders were made final after adjudication on August 24, 2000. Finding the children to be abused and neglected, protective orders were entered by the Alexandria Juvenile and Domestic Relations District Court on the same date. The initial Foster Care Plans stated that the children were "present in the home during the domestic violence." Appellant and Alexander were ordered to "refrain from domestic violence incidents" with one another, to cooperate with Alexandria Department of Social Services, and to comply with various other requirements. The initial Foster Care Service Plan approved by the juvenile and domestic relations district court by order of October 2, 2000 described the services offered by Alexandria Department of Social Services, including substance abuse treatment, mental health services, referral to a shelter for appellant, home visits and home based services and counseling, visits with the children, and couple's counseling. The goal was "return to parent."
Domestic violence and substance abuse continued for both parents despite the various services and interventions by the Alexandria Department of Social Services and the Alexandria Juvenile and Domestic Relations District Court. On May 4, 2001, appellant gave birth to J, who was born with cocaine in her system. A preliminary child protective order was entered on May 11, 2001 ordering both parents to submit to random drug screens and to provide for the care of the infant.
On May 17, 2001, the juvenile and domestic relations district court entered an Emergency Removal Order after J was found in the home of appellant and Alexander during the execution of a search warrant for "suspected drug sales in the home." The court then entered an Adjudicatory Order on June 15, 2001 finding J to be abused and neglected. The Foster Care Plan for J, approved by the Alexandria Juvenile and Domestic Relations District Court by order of August 9, 2001, offered continued services to the appellant for substance abuse and mental health counseling, a referral to drug court and visitation. The goal was "return to parent."
On November 20, 2001, Alexandria Department of Social Services filed Foster Care Service Plans for LJ, L, and D changing the goal from "return to parent" to "Placement with Relatives." In the plan, Alexandria Department of Social Services indicated the children's safety continued to be an issue. Appellant had missed a number of substance abuse counseling sessions, missed a number of urine screens, and tested positive for an illegal substance on October 3, 2001. Appellant continued to "engage in an unhealthy relationship" with Alexander. Alexander had continued to physically abuse appellant, causing appellant to hide for her safety. Alexandria Department of Social Services also reported acts of violence by appellant against Alexander.
On December 18, 2001, the Alexandria Juvenile and Domestic Relations District Court approved the change of goal to "Placement with Relative" for L, D, and LJ. The orders state "custody of the child will be transferred to a relative other than the child's prior family, namely, as soon as the identified family members have been investigated and necessary agency approval has been received." A similar foster care order was then entered for J on March 4, 2002 changing the goal for her to "Placement with Relatives." A Permanency Plan ordering "Placement with Relative" was entered on June 13, 2002.
It was reported that Geraldine Quinton, the paternal grandmother of L, D, and J, living on the Eastern Shore of Maryland, was a potential placement for the children. A referral was made under the Interstate Compact for the Placement of Children (ICPC) for the State of Maryland Department of Social Services to conduct a home study to determine the suitability of placement with Mrs. Quinton. Alexandria Department of Social Services pursued a potential placement of LJ with an uncle.1
The Maryland Department of Social Services rejected placement of L, D, and J with Mrs. Quinton.2 The juvenile and domestic relations district court then entered a Foster Care Review Order for J on December 11, 2002 disapproving placement with relatives and ordered Alexandria Department of Social Services to submit a Permanency Plan. On December 19, 2002, similar Foster Care Review Orders were entered for the other three children, each denying a foster care goal of placement with relatives because the State of Maryland rejected placement with Mrs. Quinton. In each case, the court ordered a Permanency Plan. In the orders pertaining to L and D, the court noted that Alexandria Department of Social Services needed to explore adoption and that "parental rights should be considered detrimental to the child's welfare." Appellant never appealed these orders changing goals.
The juvenile and domestic relations district court conducted a hearing on termination of appellant's parental rights on June 17-18, 2003. By Permanency Planning Order entered June 19, 2003, the goal of adoption was approved and appellant's parental rights were terminated. Termination orders were appealed to circuit court and by orders entered October 27, 2003, the circuit court terminated appellant's parental rights for all four children.
At the termination hearing, Ms. Soler testified that appellant never completed any of the services requested of her in any of the foster care plans. Alexandria Department of Social Services continued to provide services for appellant, but appellant "completely stopped participating in any services except visitation." Appellant discontinued her medications for depression. She was directed to enter a residential treatment program but failed to do so. Appellant told Soler in March of 2002 "she did not need anymore home based treatment" and that she stopped attending substance abuse services in April 2002 because "she didn't have a substance abuse problem." To the contrary, Ms. Soler testified those services were still needed.
While Soler admitted no new services were offered after the goal was changed to "placement with relative," appellant still "had the ability to get the services that we had originally offered her."
Appellant challenges the Interstate Compact on the Placement of Children, Code §§ 63.2-1000 to 63.2-1105, asserting it violates the Commerce, Privileges and Immunities, Due Process, and Equal Protection Clauses of the United States Constitution. Her constitutional arguments are premised on her allegations that under the Compact, the State of Maryland denied placement with the children's paternal grandmother for financial reasons.
Appellee contends that any constitutional attack on the Compact in this appeal is an attempt to "revive the claims he should have made" in the December 19, 2002 hearing when the goal of placement with relative was changed. Essentially, appellee argues appellant now collaterally attacks a final decree that was not timely appealed. We agree.
Appellant maintains that because of the unconstitutional economic considerations applied by Maryland, the foster care plan enabling the children to live with the paternal grandmother was denied and the goal was changed to adoption. Nothing in the record reveals she made that argument at the foster care review hearings on December 11 or 19, 2002. Clearly, she did not appeal those orders to the circuit court.3 Thus, the change in goal was a final order for purposes of appeal under Code § 16.1-2964 because it concludes the issue of the status of the child and "leaves nothing to be done by the court." Hairfield v. Commonwealth, 7 Va. App. 649, 654, 376 S.E.2d 796, 799 (1989).
"A `[c]ollateral attack is allowed only where the judgment is void, a void judgment being a judgment rendered without jurisdiction.'" Commonwealth v. Holtz, 12 Va. App. 1151, 1154...
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