In re

• Decision Date: 13 August 2013
• Docket Number: 1520–12–4.,1471–12–4,Record Nos. 1519–12–4
• Citation: 746 S.E.2d 509,62 Va.App. 296
• Court: Virginia Court of Appeals
• Parties: Patricia TACKETT v. ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES. Delores O'Brien Heffernan v. Arlington County Department of Human Services. Delores O'Brien Heffernan v. Arlington County Department of Human Services.

62 Va.App. 296

746 S.E.2d 509

Patricia TACKETT

v.ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES.

Delores O'Brien Heffernan

v.Arlington County Department of Human Services.

Delores O'Brien Heffernan

v.Arlington County Department of Human Services.¹

Record Nos. 1519–12–4, 1471–12–4, 1520–12–4.

Court of Appeals of Virginia, Alexandria.

Aug. 13, 2013.

Deborah Kramer, Arlington, for appellant Patricia Tackett, Record No. 1519–12–4.

Elizabeth Tuomey (Tuomey Law Firm, PLLC, on briefs), for appellant Delores O'Brien Heffernan, Record No. 1471–12–4.

Delores O'Brien Heffernan, pro se, Record No. 1520–12–4.

Jason L. McCandless; Karen M. Grane, Guardian ad litem for the infant child (Office of the County Attorney; Karen Grane PLC, on briefs), for appellee.

Present: FELTON, C.J., and HUMPHREYS and KELSEY, JJ.

HUMPHREYS, Judge.

Patricia Tackett (“mother”) and Delores O'Brien Heffernan (“grandmother”) appeal the Arlington County Circuit Court (“circuit court”) orders involuntarily terminating mother's residual parental rights regarding the minor child A.O., changing the permanency plan for A.O. to adoption, ordering no contact between the appellants and A.O. until A.O.'s eighteenth birthday, and denying counsel to A.O. in addition to her appointed guardian ad litem. Grandmother acting pro se

also separately appeals the order denying her petition for custody of A.O. Arlington County Department of Human Services (“DHS”) assigns cross-error in Record No. 1471–12–4 to the circuit court's determination that grandmother has standing to contest the termination of mother's parental rights.

I. BACKGROUND

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. Richmond Dep't of Soc. Servs. v. Crawley, 47 Va.App. 572, 575, 625 S.E.2d 670, 671 (2006). So viewed, the evidence established the following:

A.O. was born on September 16, 1999, to mother in Montgomery County, Maryland while mother was incarcerated. The Circuit Court for Montgomery County granted grandmother temporary custody of A.O. when she was four days old and, on January 20, 2005, granted grandmother guardianship of A.O. Grandmother was also the guardian of A.O.'s older sister, Samantha. A.O. lived with grandmother from birth until removal by DHS.

Tammee Gaymon, an Arlington County Child Protective Services (“CPS”) worker, first became aware of A.O. on February 11, 2009, when she interviewed grandmother regarding her alleged abandonment of Samantha. Grandmother had been unemployed since June 2008, and was about to lose her apartment where she was living rent free. Gaymon discussed housing options with grandmother and told her that if she did not secure housing, then A.O. could be placed in foster care. Grandmother did not follow through with the housing services offered to her by DHS.

On February 19, 2009, Gaymon learned that grandmother withdrew A.O. from Arlington Science Focus School and was moving to Florida. Gaymon also learned of the family's previous contacts with Child Protective Services in Fairfax County, including two allegations that grandmother neglected Samantha. Concerned about A.O.'s safety, Gaymon requested an emergency removal order (“ERO”) for A.O. on February 19, 2009. The Arlington County Juvenile and Domestic Relations District Court (“JDR court”) issued the ERO and appointed Karen Grane as A.O.'s guardian ad litem (“GAL”). The next day, Gaymon went to grandmother's apartment, but no one answered the door. Neighbors reported that at times A.O. was home alone for extended periods and unsupervised for several hours in the apartment lobby during the school day.

The removal order remained outstanding. After trying to call and locate A.O. and grandmother, Gaymon reached grandmother on the phone on May 26, 2009. Gaymon informed grandmother that she needed to come to court to inform the judge of her whereabouts and plans for A.O. Grandmother stated that A.O. was in another jurisdiction and that Gaymon needed to close her case. Grandmother also said she had a condo in the area but refused to provide her address or provide A.O.'s location.

In July 2010, A.O. was caught shoplifting in Fairfax while with grandmother who was arrested for contributing to the delinquency of a minor. A.O. was removed from grandmother's custody and placed in foster care on July 22, 2010. Upon A.O.'s removal, mother was incarcerated for stealing grandmother's car after grandmother sought a protective order against her. Grandmother called Gaymon the night of A.O.'s removal. She said that she had been living in Fredericksburg for two and a half months and prior to that they stayed in a hotel somewhere in Fredericksburg. She also admitted to moving to Florida in February 2009, and said that A.O. was home schooled but she was not registered in a homeschool program because they were homeless.

DHS facilitated a Family Partnership Meeting (FPM) on July 27, 2010, which grandmother attended. The JDR court held a five-day hearing on July 29, 2010, where grandmother was served with “ERO 7/26/10” in court. The JDR court found that A.O. had not been in school and had not had stable housing since February 2009, and ordered that A.O. remain in foster care until the thirty-day hearing. The thirty-day hearing occurred on August 19, 2010. Although grandmother was notified of the court date, she did not attend. The JDR court found that A.O. was abused or neglected, ordered DHS to file a foster care plan, and continued the case for a dispositional hearing.

Meanwhile, grandmother dropped the charge against mother regarding her car so mother could help get A.O. back from DHS. DHS did not have contact with mother while she was incarcerated. Upon her release from jail, mother went to DHS on September 14, 2010, and social worker Maurine Watkins began to work with her. From her first visit to DHS, mother repeatedly stated that she was unable to care for A.O. because of a lack of housing and that she had no capacity or means to provide for A.O. She also stated that her medical condition and back problems prevented her from being a placement option for A.O. and that she was in the process of getting herself together. DHS did not seek to place A.O. with mother because of these representations and her extensive criminal and drug history. Further, mother had not seen A.O. for a year prior to A.O.'s removal. On two other occasions prior to removal, mother did not see A.O. for two or three years at a time.

On September 30, 2010, the JDR court ordered that the goal for A.O.'s placement was “return to own home,” meaning with grandmother. The JDR court approved the foster care service plan dated September 1, 2010, and ordered that the “parents shall continue to utilize their best efforts to fulfill the requirements of the foster care plan approved herein and orders[ ] of the court entered herein.” Grandmother and mother attended this dispositional hearing.

The foster care service plan noted that grandmother has a history of instability in housing and employment, poor judgment regarding the care of A.O., and a history of legal problems, including a charge of check fraud. The report also noted A.O.'s educational gaps due to frequent moves with grandmother—at the time of removal A.O. was ten years old and she had attended eleven different schools. The foster care service plan required the following of grandmother:

1) Complete a psychological evaluation and [follow] through with all recommended services. Target Date 4/2011

2) Secure stable housing and employment. Target Date 11/2010

3) Provide pertinent documents (i.e. lease agreement/closing papers) to verify permanent residence. Target Date 11/2010

4) Provide proof of employment/income (i.e. most recent pay stubs, W–2s, social security) to verify incoming finances. Target Date 01/2011

5) Communicate any changes in employment or housing status to DHS. Target Date—Ongoing

6) Complete a fingerprint based criminal history record check. Target Date 10/2010

Grandmother did not cooperate with DHS and failed to comply with the listed requirements of the plan. She inundated foster care workers with concerns, requests, faxes, and inaccurate assertions of her rights to raise A.O. without interference by DHS. She called DHS many times per week. On November 20, 2010, grandmother showed up at DHS unannounced, seeking to speak to the director. Tabitha Kelly, Child Welfare Bureau Chief, spoke with grandmother. Grandmother threatened to sue everyone in the Department. Kelly advised grandmother to comply with the court orders, including the psychological evaluation. Grandmother spoke of her depression and how suicide rates go up around that particular time of year. These comments confirmed Kelly's understanding of grandmother's need for psychological testing to determine if she was healthy enough to care for A.O. Sherri Brothers, the foster care supervisor of A.O.'s case, also testified that grandmother's communications and behavior over time made clear to her that psychological testing of grandmother was necessary.

On December 9, 2010, grandmother called Brothers and stated that she was going to be testifying to members of Congress about the corruption in the family courts. On December 20, 2010, Watkins had a phone conversation with grandmother, again discussing the psychological evaluation and the required release form. On December 30, 2010, Brothers met with grandmother to discuss services necessary for her reunification with A.O. Grandmother expressed concerns about A.O. being drugged and stated that she had a retired military officer make a report to the FBI regarding A.O.'s safety in foster care.

At the beginning of 2011, grandmother had not completed the required psychological evaluation and had not submitted pay stubs to verify her employment as required by the foster care plan. In January 2011, grandmother refused to schedule a psychological evaluation...