Napier v. Wise Cnty. Dep't of Soc. Servs.
| Decision Date | 01 March 2022 |
| Docket Number | 0518-21-3 |
| Parties | EDNA MICHELLE NAPIER v. WISE COUNTY DEPARTMENT OF SOCIAL SERVICES |
| Court | Virginia Court of Appeals |
EDNA MICHELLE NAPIER
v.
WISE COUNTY DEPARTMENT OF SOCIAL SERVICES
No. 0518-21-3
Court of Appeals of Virginia
March 1, 2022
FROM THE CIRCUIT COURT OF WISE COUNTY Jeff Hamilton, Judge
Anna Maria Midence (Midence Law Firm PLLC, on brief), for appellant.
(Jeremy B. O'Quinn; Jeffery Elkins, Guardian ad litem for the minor children, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.
Present: Judges Humphreys, Ortiz and Chaney Argued at Lexington, Virginia
MEMORANDUM OPINION [*]
DANIEL E. ORTIZ, JUDGE.
Edna Michelle Napier ("mother") appeals the termination of her parental rights with respect to her three children T.N., A.N., and K.N. (collectively "the children") by the Wise County Circuit Court. Mother makes four assignments of error on appeal, contending that: (1) the circuit court erred in finding that the Wise County Department of Social Services ("the Department") had strictly complied with the foster care plan under Code § 16.1-283(A) and (C)(2); (2) the circuit court erred in not considering the effects of the COVID-19 pandemic and the related Supreme Court of Virginia orders of judicial emergency when calculating the time frame set by Code § 16.1-283(C)(2); (3) the circuit court erred in granting the termination petitions where the Department did not satisfy its duty to pursue suitable relative placement; and
(4) the circuit court erred in granting the termination petitions where mother had corrected all the reasons for the children's removal by the time of the circuit court hearing.[1] As the circuit court did not err as a matter of law, and the record contains evidence to support the court's judgment, we affirm the termination of mother's parental rights.
Background[2]
Mother is the biological parent of T.N., A.N., and K.N., who are seventeen, eleven, and eight, respectively. The children were in the care of mother and their biological father Larry Napier ("father") until April 16, 2019. Prior to that time, T.N. and K.N. were residing with mother, and A.N. was residing with father, but neither parent had permanent housing. There were reports of domestic violence incidents by father towards mother which the children witnessed. Moreover, both parents had substance abuse issues. Specifically, mother tested
positive for methamphetamine. The Department provided ongoing pre-removal services to both parents but determined in April 2019 that preventative measures were no longer effective. The Department then sought emergency removal of the children.
On April 16, 2019, the Department filed abuse and neglect petitions on behalf of the children, and the Wise County Juvenile & Domestic Relations District Court ("the JDR court") entered emergency removal orders. The reasons for removal included (1) domestic violence issues, (2) substance abuse by the parents, and (3) homelessness. Regarding housing, "neither parent had a home of their own for the children to reside in long term." On the date of removal, April 16, 2019, T.N. and K.N. were temporarily residing with their half-brother David Frith in Cumberland, Kentucky, while A.N. was residing with father. On April 25, 2019, nine days after removal, the Department held a family partnership meeting "to give the parents an opportunity to assist in the development of the service plan, inform them of their right to appeal, to present them with a list of community service providers, . . . and to initiate their visitation plan." Mother attended and participated in this first meeting.
The initial foster care plans ("initial plans"), filed on May 28, 2019, stated a program goal of "Return to Own Home" with a concurrent goal of "Relative Placement." The initial plans were approved by the JDR court on June 11, 2019. The target date listed on the initial plans was April 30, 2020.
The initial plans emphasized the important but attainable steps that the parents needed to take in order to achieve the program goal. These included addressing substance abuse issues, housing concerns, and domestic violence, improving parenting skills through therapy and classes, and cooperating with the Department and court orders. In an effort to attain these goals, the initial plans listed the services offered to the parents including parental home visits, drug screenings, substance abuse counseling, parenting classes and moral reconation therapy, referrals
for parenting assessments, referrals for psychological assessments, family counseling sessions, counseling for domestic violence victims, and scheduled visitation with the children. The Department provided all of these services and resources.
The initial plans likewise detailed the efforts made to locate and place the children with relatives: "[t]he agency conducted a database search through CLEAR[3] and any potential relatives were contacted by letter concerning the status of the child." Further, the initial plans noted that "[i]f any family members express an interest . . . [the Department] will utilize all home study guidelines to assess their suitability as a placement option." No family member responded to the letters or filed a petition for custody of the children.
Mother failed to attend the second family partnership meeting scheduled on September 12, 2019. Her boyfriend called to inform the Department they would not be able to attend because they were being forced to move out of their temporary residence. After the missed family partnership meeting, the Department filed the foster care review plans ("review plans") on September 17, 2019, which reiterated the program goal of "Return to Own Home" with a concurrent goal of "Relative Placement" and maintained the target date of April 30, 2020. The review plans stated that there was no significant change in progress since the initial foster care plans were approved.
The review plans also identified multiple substantial barriers to goal achievement that continued to exist. Mother tested positive for methamphetamine and other drugs in May, June, and August, and refused drug tests in June and July 2019. The Department was provided no proof that mother was involved in or had completed any of the programs outlined in the initial plans. As of the review plans' filing, the Department noted that mother stated on multiple occasions that she planned to enroll in counseling but provided no evidence that she had done so.
The Department noted that contact with mother had been sporadic and that she would need to enroll in classes to address the removal concerns. Moreover, at the time of filing, mother was still homeless, having had to move out of her temporary housing. In the review plans, the Department explicitly stated that "[i]f there are not any substantial changes in regards to progress prior to the permanency planning hearing, the agency will have to give serious consideration to an alternative goal at that time."
The Department noted that it held a third family partnership meeting on January 21, 2020, and "neither parent attended this meeting or called to explain their absence." On January 28, 2020, the Department filed new foster care service plans ("final plans"), changing the program goal to adoption. The new target date for achievement was December 31, 2020. The reason stated for the new service plans was "Permanency Planning." The final plans explained why "Return to Own Home" was not chosen as a goal:
This goal was not chosen but was selected as the primary goal on the initial foster care plan. Needs, services, and responsibilities were listed that, if followed, would have placed the family squarely on the path towards reunification. The mother and father have both failed to properly address the removal issues or make the required progress that would make them an option for the children. The time has now arrived for permanency planning and neither parent is in a position to have the children on a full time basis. To place them back with either would pose significant risk of further abuse/neglect to the children.
The Department detailed its reasoning for why adoption was chosen as the new program goal:
This goal was chosen based on the children's ages, the length of time they have been in care, and the fact that the higher priority goals have not been achieved. Adoption will be in their best interest, provide them a safe, stable environment, and offer them an opportunity to make a permanent connection with a forever family.
Those final plans identified continuing barriers to goal achievement. Regarding housing, the final plans stated that although mother had recently obtained housing in Kentucky, the home had "no beds for the children or furniture in the other rooms outside of the mother's bedroom." The Department identified substance abuse as an ongoing concern as mother had only provided negative results in October 2019 and January 2020. Additionally, mother's boyfriend tested positive for Suboxone without a prescription in January 2020. The final plans reiterated that mother provided "zero proof" other than her assertions that she "[was] involved or completed any type of rehabilitative programs" listed in the foster care plans. Finally, the permanency plans noted that mother's contact with the Department had been sporadic, which made parenting assessments difficult. On January 28, 2020, the Department filed petitions for the termination of mother's parental rights to her three children ("termination petitions") pursuant to Code § 16.1-283.[4] The Department also filed petitions for permanency planning hearings on behalf of the children.
The JDR court held a termination hearing on February 18, 2020, which mother's attorney attended. The JDR court granted the termination petitions. Mother appealed the termination orders to the circuit court.
On April 13, 2021, the circuit court heard mother's appeal. At the outset of the hearing, the court conducted in camera...
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