Joyce v. Botetourt Cnty. Dep't of Soc. Servs.

• Decision Date: 09 November 2022
• Docket Number: Record No. 0736-22-3
• Citation: 75 Va.App. 690,879 S.E.2d 596
• Parties: Jordan Heath JOYCE v. BOTETOURT COUNTY DEPARTMENT OF SOCIAL SERVICES
• Court: Virginia Court of Appeals

75 Va.App. 690

879 S.E.2d 596

Jordan Heath JOYCE

v.BOTETOURT COUNTY DEPARTMENT OF SOCIAL SERVICES

Record No. 0736-22-3

Court of Appeals of Virginia.

November 9, 2022

Wilson C. Pasley, Roanoke, for appellant.

Matthew J. Schmitt (Mark C. Popovich ; L. Brad Braford, Guardian ad litem for the minor child; Guynn, Waddell, Carroll & Lockaby, PC, on brief), for appellee.

Present: Judges Humphreys, Huff and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

Jordan Heath Joyce ("father") appeals the order of the Botetourt County Circuit Court ("circuit court") terminating his parental rights to his child, N.J., pursuant to Code § 16.1-283(C)(2). Father argues that the circuit court erred in finding that the Botetourt County Department of Social Services ("the Department") could not provide services to father because he was subject to a protective order for the first year that N.J. was in foster care. Accordingly, he argues the evidence was insufficient to prove the Department made reasonable and appropriate efforts with respect to father to substantially remedy the conditions which led to or required continuation of N.J.’s foster care placement.

BACKGROUND

"On appeal, ‘we view the evidence and all reasonable inferences in the light most favorable to the prevailing party below, in this case the Department.’ " Farrell v. Warren Cnty. Dep't of Soc. Servs. , 59 Va. App. 375, 386, 719 S.E.2d 329 (2012) (quoting Jenkins v. Winchester Dep't of Soc. Servs. , 12 Va. App. 1178, 1180, 409 S.E.2d 16 (1991) ). So viewed, the evidence established the following:

Father and Aiden Joyce ("mother") are the biological parents to N.J., who is the subject of this appeal.¹ The Department became involved with the family in July 2018, shortly after father and mother separated. At the time, four-year-old N.J. lived with mother and his twelve-year-old sister, A.J. On July 22, 2018, mother made allegations that father had sexually abused A.J., and the Botetourt County Juvenile and Domestic Relations District Court ("the JDR court") entered an emergency protective order against father. On August 14, 2018, the JDR court entered a two-year protective order, prohibiting father from having contact with the children, "except through visitation at Sabrina's Place. (Only if juveniles wish to visit.)" The protective order stated that it expired on August 14, 2020. In June 2019, father moved the JDR court to have the protective order dissolved. The JDR court denied the motion; father did not appeal.

Also in June 2019, law enforcement responded to a call regarding A.J. hiding from her mother in the woods. Law enforcement saw that mother and the children were living in unacceptable conditions. Law enforcement contacted the Department, which found the living conditions to be "unfit" for the children. On June 12, 2019, mother signed an entrustment agreement, entrusting N.J. and A.J. to the care of the Department. Pursuant to the agreement, the Department removed the children from the home, while mother had time to try to remedy the living situation.

By August 12, 2019, mother had not remedied the living situation, and the JDR court approved the Department's petition to place the children in foster care, with a permanent goal of returning the children to their home. On that date, the JDR court found that there was an existing protective order in place against father but ordered that father could have visitation with N.J. at the Department's discretion. However, in foster care plans prepared in November 2019, April 2020, and September 2020, the Department explained, "Due to [N.J.’s] diagnosis and [father's] current health situation, [N.J.] does not visit with his father." The foster care plans included no services for father, and the Department's only other reference to father in the plans was its conclusion that he was "not a viable option" for relative placement because of a "current protective order." Each of these foster care plans described services and visitation efforts offered to mother to achieve the stated goal of returning N.J. to his own home. The target date to accomplish the goal was December 2020.

In April 2021, twenty-two months after the Department removed N.J. from the home, the Department petitioned the JDR court for termination of parental rights as to father and mother. In support of its petition, the Department cited mother's unreliable income and housing and her failure to follow through with substance abuse treatment. As for father, the Department stated that he suffers with Parkinson's disease and that he has had no contact with N.J. On July 20, 2021, the JDR court terminated father's parental rights to N.J. under Code § 16.1-283(C)(2). Father appealed to the circuit court.

On February 2, 2022, the parties appeared before the circuit court for a de novo hearing on the Department's petition to terminate father's parental rights. At the time of the hearing, N.J. was eight years old. When he first entered foster care, N.J., who is on the autism spectrum, was "very much out of control, at times," according to his foster mother. N.J. "was nonverbal ... he would say words but he wouldn't communicate at all ... he was very smart but ... he didn't have any way to express himself." Since entering foster care, N.J. had made "leaps and bounds of improvement." N.J. was doing very well in his foster home.

The Department presented evidence about the services it offered mother to help her achieve the goal of returning N.J. to home. The Department admitted that it offered no services to father, nor did it assist father in any way to communicate with N.J. The Department explained that initially father was "not put in the service plan because ... there was still a protective order so he couldn't have visitation." The Department conceded that father contacted the Department about visiting N.J. approximately seven times over the two-year period that N.J. had been in foster care.

Father cross-examined the Department about the foster care plans, which indicated that N.J. did not visit with father because of N.J.’s autism diagnosis and father's "current health situation." The Department explained that father never said "what he had going on" regarding his health, but during the court hearings "he sat there and just shook, could hardly speak or anything." The Department admitted that it did not inquire into father's health status but nevertheless determined that it would not be in N.J.’s best interest to visit with him. The Department never offered father visitation with N.J., even after the protective order was lifted and the Department determined that the sexual allegations against father were unfounded.

Father testified that he wanted to reunite with N.J. and that he contacted the Department "multiple times over the years" to inquire about visitation, to no avail. He also testified that he contacted Sabrina's Place about visitation; however, the representative from Sabrina's Place told father that he would have to consult with the Department about visitation. As for his health, father explained that he has "the beginning stages of Parkinson's," which causes him to shake, but his symptoms would not prevent him from parenting. Father offered that he has been co-parenting his nineteen-year-old autistic child, and believes that his experience in raising his older child would help him with parenting N.J. Father also noted that, even though he has not visited with N.J. since June 2018, he raised N.J. for the first five years of his life, and he is aware of N.J.’s autistic behaviors. Father requested that N.J. be returned to his custody, recognizing that they would need to go through counseling.

In closing remarks, the Department's counsel acknowledged that it was required to provide reasonable and appropriate services under the statute but argued that its "hands were tied for that initial year [that N.J. was in foster care] by a court order." Counsel asserted that it "had no reason to attempt to provide services for reunification because at that time there was no contact."

The circuit court acknowledged that father's situation was "troubling" because the protective order "limited [father's] ability to have contact" with N.J. and father "followed the terms of the protective order." The circuit court, however, was "concerned that somebody who wanted to have contact, it seems could do more ...." The circuit court noted that the JDR court found by a preponderance of the evidence that father was "a danger" to A.J. and N.J. The circuit court also recalled mother's testimony that father was "a danger" to A.J. and N.J. The circuit court found that there was no "good cause for [father] to be unable to have contact for twelve months," and he had not made satisfactory efforts to have visitation with N.J. when he could have gone to Sabrina's Place. In conclusion, the circuit court "agree[d] with the Department that they could not provide services during that period of time because of the protective order and for that reason I'm granting the petition on [N.J.] as, as well." The circuit court further found that N.J. was thriving and that it was in N.J.’s best interests to terminate father's parental rights under Code § 16.1-283(C)(2). Father appeals.

ANALYSIS

I. No Provision of Services because of Protective Order

Father challenges the circuit court's finding that the Department could not provide services to him during the time the protective order placed restrictions on his contact with N.J.

"On review of a trial court's decision regarding the termination of parental rights, we presume the trial court ‘thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests.’ " Norfolk Div. of Soc. Servs. v. Hardy , 42 Va. App. 546, 552, 593 S.E.2d 528 (2004) (quoting Logan v. Fairfax Cnty. Dep't of Hum. Dev. , 13 Va. App. 123, 128, 409 S.E.2d 460 (1991) ). "Accordingly, the trial court's decision will not be disturbed on appeal...