Simms v. Alexandria Dep't of Cmty. & Human Servs.

• Decision Date: 05 April 2022
• Docket Number: Record No. 0479-21-4
• Parties: Anita Shana-Nicole SIMMS v. ALEXANDRIA DEPARTMENT OF COMMUNITY AND HUMAN SERVICES
• Court: Virginia Court of Appeals

74 Va.App. 447

870 S.E.2d 314

Anita Shana-Nicole SIMMS

v.ALEXANDRIA DEPARTMENT OF COMMUNITY AND HUMAN SERVICES

Record No. 0479-21-4

Court of Appeals of Virginia.

APRIL 5, 2022

Neal Goldberg (JustCause Counsel, PLLC, on briefs), for appellant.

Matthew W. Greene, Special Assistant City Attorney (Joanna C. Anderson ; Jill A. Schaub; Gerylee M. Baron, Guardian ad litem for the minor children; Greene Law Group PLLC; Office of the City Attorney; Law Office of Gerylee M. Baron, on brief), for appellee.

Present: Judges Russell, Lorish and Senior Judge Annunziata

OPINION BY JUDGE LISA M. LORISH

The issue in this appeal is whether a trial court has jurisdiction to enter an order terminating parental rights while an abuse and neglect determination involving the same parent and child is pending appellate review. We conclude that it does. We also find no error with the court's termination of mother's residual parental rights.

BACKGROUND¹

"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." Yafi v. Stafford Dep't of Soc. Servs. , 69 Va. App. 539, 550-51, 820 S.E.2d 884 (2018) (internal quotation omitted). Here, the Alexandria Department of Community and Human Services ("the Department" or "ADCHS") was the prevailing party.

In June 2019, Anita Shana-Nicole Simms ("mother") gave birth prematurely to twins who were hospitalized for seven weeks in the neonatal intensive care unit.² Mother did not have custody of any of her other five children, and her parental rights for three of those children were previously involuntarily terminated.³

The Department quickly filed abuse and neglect petitions against mother for reasons we summarized as follows:

On June 8, 2019, ADCHS received allegations that mother had physically neglected the children, who were born prematurely that day. During her high-risk pregnancy, mother did not seek any prenatal care and tested positive for PCP twice. Mother had admitted, after she learned of her pregnancy, to using PCP, a drug she had abused for many years. Mother had a history with ADCHS due to the department's involvement in terminating her parental rights to her other three children. Her 2017 parental capacity assessment showed that she suffers cognitive limitations, has bipolar personality disorder, and is inconsistent with mental health treatment. Consequently, the 2017 report concluded that she is at risk for future child neglect. Notably, the trial court had previously made abuse or neglect findings against mother with respect to three of her other children.

Simms v. Alexandria Dep't of Cmty. & Hum. Servs. , No. 0915-20-4, slip op. at 2-3, 2021 WL 2431893 (Va. Ct. App. June 15, 2021).

A. Procedural Background

The Alexandria Juvenile and Domestic Relations District ("JDR") court entered emergency removal orders under Code § 16.1-251 at the end of July 2019, placing the twins in foster care. As required by the same statute, the JDR court held a preliminary hearing after these emergency removals and found that the Department had proved abuse or neglect by the preponderance of the evidence and entered corresponding adjudicatory and dispositional orders. The dispositional order returned the twins to foster care with the goals of either returning the twins to the care of their father or adoption. Mother appealed these orders to the circuit court. While that appeal was pending, the JDR court held a foster care review hearing which approved the singular goal of adoption.

In March 2020, the circuit court held its de novo hearing and found that mother had abused or neglected the twins.⁴ Mother then appealed the circuit court's adjudicatory and dispositional orders to this Court.

A month later, the Department petitioned for permanency planning with the JDR court requesting termination of mother's parental rights to facilitate the goal of adoption. The JDR court entered permanency planning orders approving the foster care goal of adoption and also terminated mother's parental rights to the twins in May 2020. Mother appealed the JDR court's rulings to the circuit court.

Before the hearing, mother moved to stay the proceedings. Mother argued that the circuit court should not hear her appeal of the JDR court's termination orders until after this Court had ruled on her pending appeal of the adjudicatory and dispositional orders because one would impact the other.

The circuit court heard arguments on this motion. Mother emphasized that she faced the risk of a "premature severance that cannot easily be undone" if the circuit court proceeded with the termination of her parental rights while her appeal to this Court was pending. The Department proffered that the abuse and neglect finding was only "[t]angentially" related to the termination proceeding because it was relying on the prior involuntary termination of mother's rights for siblings of the twins and that termination was in the twins’ best interests (see Code § 16.1-283(E)(i) ) and not on the prior abuse and neglect determination (see Code § 16.1-283(B) ). The Department also argued that if this Court reversed the circuit court's finding of abuse and neglect, any termination or permanency planning order entered by the circuit court "would be deemed void as a matter of law." When the circuit court questioned whether proceeding was "the most judicially efficient way of handling things," the Department emphasized that it was in the children's best interests to achieve finality.

The circuit court denied mother's "motion to essentially stay [the] matter" pending this Court's resolution of the appeal of the adjudicatory and dispositional orders. The circuit court found that if mother prevailed on her appeal, the Department was "on the record as saying that any ruling today that results in the termination of [mother's] residual parental rights to [the twins] would be null and void." The hearing proceeded on the merits.

B. Factual Background

In the time between the initial removal of the twins from mother's care and the ultimate termination of her parental rights, the Department tried to work with mother,⁵ requiring her to participate in mental health services and comply with all treatment recommendations.⁶ After the twins entered foster care, the Department referred mother to the Alexandria Community Services Board for mental health and substance abuse evaluations, as well as case management services. While mother appeared to have a good working relationship with the Court Appointed Special Advocate ("CASA"), her relationship with the Department was strained and worsened over time. While mother provided information to CASA about her housing, employment, and therapy sessions, she refused to provide similar information to the Department for their verification.

After learning that mother lived in a two-bedroom home in Alexandria, the Department asked for more information about her housing situation, but mother would not say whether anyone else was living with her, and she refused to allow the Department's social worker to visit her home. A CASA advocate did visit the Alexandria home at one point and found it to be "neat and clean," and mother told the advocate that no one else lived with her there. The Department later heard that mother had moved "outside of the city," but mother provided no verification for her new housing.

The Department also required mother to participate in substance abuse services, comply with all treatment recommendations, and submit to drug testing. Mother provided documentation to CASA confirming she attended at least two substance abuse group sessions. But after testing positive in November 2019 and January 2020, mother refused to comply with drug testing in February 2020 and rejected the Department's efforts to implement a plan to address her substance abuse issues.

Likewise, mother first underwent mental health treatment from March 2020 to October 2020 with the Alexandria Community Services Board. But then she moved from Alexandria to Fairfax County. Mother's therapist recommended that she continue with therapeutic services in Fairfax County and seek psychiatry services and substance abuse treatment to manage her symptoms and maintain her sobriety. But mother testified that she consulted the new community services board which concluded she did not need additional services. Mother had contacted no other mental health providers or substance abuse therapists since.

Mother became similarly uncooperative with the Department's requests for verification of her employment, which reportedly was unstable and inconsistent. Mother testified, however, that she had worked at a gas station for eight months and provided a letter from her employer verifying her work schedule.

Mother also failed to provide the Department with her plan for childcare arrangements or pediatric care for the twins, which concerned the Department given their premature birth.

Yet she testified that if she gained custody of the twins, her mother could care for the twins while she was at work or that they could go to a daycare provider within walking distance of her home. Mother acknowledged that she did not have a car and relied on public transportation, Uber, and Lyft.

As for mother's contact with the twins over this nearly two-year period, she visited the twins daily in the hospital before they were discharged and moved into foster care. After that, the Department first offered mother weekly supervised visitation. Mother arrived late to some visits and "struggled to regulate her emotions," which the Department recognized could be attributed to her separation from the twins. Then, at mother's last in-person visit with the twins at the Department's office in late 2019, she "announced that the visit was going to take place across the street at the elementary school." The social worker reminded mother that she could not make those decisions but offered to seek approval from his...