Thach v. Arlington Cnty. Dep't of Human Servs.

• Court: Virginia Court of Appeals
• Writing for the Court: HUMPHREYS
• Citation: Dung Thi Thach v. Arlington Cnty. Dep't of Human Servs., 63 Va.App. 157, 754 S.E.2d 922 (Va. App. 2014)
• Decision Date: 18 March 2014
• Docket Number: Record No. 1309–13–4.
• Parties: DUNG THI THACH and Carlos Mendoza v. ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES.

63 Va.App. 157

754 S.E.2d 922

DUNG THI THACH and Carlos Mendoza

v.ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES.

Record No. 1309–13–4.

Court of Appeals of Virginia.

March 18, 2014.

(Mark S. Thrash; G. Rex Flynn, Jr.; The Flynn Law Firm, PLLC, on brief), for appellants. Appellants submitting on brief.

(Jason L. McCandless, Assistant County Attorney; Phong T. Nguyen, Guardian ad litem for the infant child; Office of the County Attorney, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Present: Judges HUMPHREYS, McCULLOUGH and Senior Judge BUMGARDNER.

HUMPHREYS, Judge.

Dung Thi Thach (“Thach” or “mother”) and Carlos Mendoza (“Mendoza” or “father”) jointly appeal the Arlington County Circuit Court's (the “circuit court”) decision to grant the Arlington County Department of Human Services's (“DHS”) petitions to terminate their residual parental rights with regard to their son (“J.M.”). Appellants' single assignment of error is “that the evidence was insufficient to show by clear and convincing evidence that the Petitioner, Carlos Mendoza, failed to substantially remedy the conditions that brought his son, J.M., into [foster] care within the provisions of [ ] Code § 16.1–283.”

As a preliminary matter, we note that although both Thach and Mendoza jointly appealed the circuit court's decision to terminate their parental rights, appellants only assign error to the circuit court's termination of Mendoza's parental rights. Consequently, notwithstanding the style of the case and the fact that Thach argues that the circuit court erred in terminating her parental rights, we do not consider her arguments. Rule 5A:20(c); see Fox v. Fox, 61 Va.App. 185, 202–03, 734 S.E.2d 662, 670 (2012) (an issue is waived when it is not included in appellant's assignment of error).

I. Background

“On appeal from the [denial of a petition for the] termination of parental rights, this Court is required to review the evidence in the light most favorable to the party prevailing in the [trial] court.” Tackett v. Arlington Cnty. Dep't of Human Servs., 62 Va.App. 296, 303, 746 S.E.2d 509, 513 (2013). Therefore, viewing the evidence in the light most favorable to DHS, the evidence establishes the following.

A. J.M.'s Initial Placement in Foster Care

In August 2010, DHS began to receive complaints that Thach was physically neglecting her son J.M., born December 4, 2009.¹ After an investigation, DHS reported that J.M. was being physically abused because the family was facing eviction, the utilities had been disconnected, Thach was under the influence of substances while caring for J.M., and was leaving him with inadequate caregivers. At that time, J.M. was in the sole custody of Thach. Thach reported that J.M.'s father, Mendoza, did not live with them as he had been deported to Mexico. Thach refused to give DHS any contact information for Mendoza. DHS obtained a protective order in March 2011. DHS provided the family services to prevent J.M.'s removal, including mental health services for Thach, housing and employment services, and daycare services. Thach failed to comply with DHS's recommendations.

The Arlington County Juvenile and Domestic Relations District Court (the “J & DR court”) granted DHS's petition to remove J.M. from Thach's custody on June 29, 2011. Thach had failed to make appropriate child care arrangements for J.M.—she left him with individuals whom she could not provide DHS with basic information for, such as last names or telephone numbers. In August 2011, the goal of DHS's first foster care plan was to return J.M. to Thach's custody. The plan required Thach to complete certain requirements before J.M. could be returned to her care, which included compliance with mental health services, maintain a source of income, refrain from drug use, receive parenting education, and obtain stable housing.

B. Mendoza's Involvement with DHS While J.M. was in Foster Care

Both parties acknowledge that there have never been any accusations that Mendoza abused or neglected J.M., or was in any way involved with the circumstances requiring J.M.'s removal from Thach's custody. DHS's first contact with Mendoza was on October 6, 2011 when Mendoza accompanied Thach to a scheduled visitation with J.M. At that visitation he told DHS that he had been living and working in Arizona but had returned to Virginia where he was living with his maternal aunt. He said that the reason for the delay in initially seeing his son was that he was afraid of being deported again; however, he now had begun the legal process for obtaining a work permit and legal residency in the United States. At the October 6, 2011 meeting with DHS, Mendoza informed DHS that he was also the biological father of Thach's then unborn child. By the October 25, 2011 status hearing, Mendoza had moved back to Arizona but continued to attend visitations with J.M. in November and December 2011. DHS did not have any direct contact with Mendoza and only communicated with him through messages left with Thach. DHS's February 2012 progress report indicated that DHS had provided no services to Mendoza because of difficulty communicating and meeting with him.

In March 2012, Mendoza moved in with Thach and began caring for their newborn son (“J.T.”) while Thach was working. Mendoza reported to DHS that he had hired an immigration attorney and was applying for a work permit, however he was unable to get employment for fear it would affect his work permit application. J.M. began overnight visits with Mendoza, Thach, and J.T. in May 2012. J.M. refers to Mendoza as “Papi” and gives him “hugs and kisses.” J.M. asks to see J.T. and gives his brother hugs and kisses. In the June 2012 progress report DHS reported that Thach and Mendoza “have made tremendous progress.” Specifically, “Mendoza continues to be a strong support in the home,” and during his interactions with J.M. and J.T. “he is very active, attentive and loving with both boys ... respond[ing] immediately when either child calls for attention.” DHS referred Mendoza to parenting education classes and home-based services.

Three months later, on September 12, 2012, J.M.'s social worker wrote a memo to the J & DR court recommending the discontinuation of the goal of reunification and a change to a goal of adoption. Immediately preceding this change in recommendation, DHS had suspended J.M.'s unsupervised visits due to Thach's missed and failed random drug screenings. Additionally, Thach had been sentenced to four weekends in jail for a traffic offense. Due to Thach's substance abuse issues, a safety plan was created for J.M.'s younger brother J.T. The plan stipulated that Thach was not to be left alone with J.T., and Mendoza was to remain home with the infant. DHS was also concerned that Thach and Mendoza did not renew their housing assistance in July because they wished to pay their rent without assistance. Thach and Mendoza canceled two scheduled visitations with J.M. in late August. As of September 2012, Mendoza had not completed the recommended parenting classes. The parenting class coordinator left messages with Thach but never spoke directly to Mendoza. On September 8, 2012, DHS contacted Thach about scheduling a meeting to discuss alternative plans to J.M. returning home, such as possible placement with a relative, but Thach told them that Mendoza was “away at a beach” and would not be back for a week. No meeting was ever scheduled.

C. Termination of Mendoza's Parental Rights

On November 19, 2012, the J & DR court approved the new goal of adoption and scheduled a termination hearing. However, the J & DR court ordered that the case should be set out “past 90 days to give father more time to comply with the previous plan.” The J & DR court further ordered that DHS “is required to help father with services,” (but not mother) and “if father is making progress, [DHS] is to file a new plan before the termination hearing.”

In December 2012, Mendoza successfully completed an eight to ten week parenting education program. Additionally, he submitted to the psychological evaluation ordered by the J & DR court in January 2013, which was filed with that court in March 2013. The report recommended home support for Mendoza. DHS was concerned about Mendoza's “lack of insight into Thach's mental health and substance abuse needs.” During the psychological evaluation, Mendoza stated that he did not think Thach had a substance abuse problem and that he felt comfortable with her caring for the children. On January 22, 2013, J.M.'s social worker filed an affidavit for terminating Mendoza's rights. The only changes in circumstances since the November hearing noted in the affidavit were that Mendoza had enrolled and completed parenting classes in December 2012 and that Mendoza and Thach's landlord reported that they were behind on their rent and utility bills as of January 16, 2013.

Thach moved out of the family's residence by March 13, 2013.² On March 14, 2013, the J & DR court terminated both Thach's and Mendoza's parental rights pursuant to Code § 16.1–283(C)(2). At the J & DR court termination hearing, DHS had no major concerns about Mendoza's ability to care for the children on his own; however, DHS's “major concern was related to [Mendoza's] acknowledgement of [ ] Thach's substance abuse issues, and his lack of acknowledgement that she continued to abuse substances, and [sic] around the children.” DHS's position was that Mendoza's unawareness demonstrated his inability to protect the children from Thach's substance abuse issues. Mendoza concedes that he still did not fully acknowledge Thach's substance issue at the J & DR hearing. Mendoza and Thach appealed the J & DR court's decision to terminate their parental rights to the circuit court.

During the June 10, 2013 circuit court hearing, Mendoza testified that Thach moved out in March because he wanted to recover his children. Mendoza then acknowledged that Thach had a substance...