Toms v. Hanover Dept. of Social Services

• Decision Date: 09 August 2005
• Docket Number: Record No. 1869-04-2.
• Citation: 46 Va. App. 257,616 S.E.2d 765
• Parties: Granville Frazier TOMS, III v. HANOVER DEPARTMENT OF SOCIAL SERVICES.
• Court: Virginia Supreme Court

616 S.E.2d 765

46 Va. App. 257

Granville Frazier TOMS, III v. HANOVER DEPARTMENT OF SOCIAL SERVICES.

Record No. 1869-04-2.

Court of Appeals of Virginia, Richmond.

August 9, 2005.

COPYRIGHT MATERIAL OMITTED

Corinna Barrett Lain (Frank G. Uvanni, Guardian ad litem for Granville Frazier Toms, III; University of Richmond Law School; Uvanni & Associates, PC, on briefs), for appellant.

Dennis A. Walter, Assistant County Attorney; R. Craig Evans, Guardian ad litem for the minor children (Sterling E. Rives, III, County Attorney; McCaul, Martin, Evans & Cook, on brief), for appellee.

Present: FRANK and KELSEY, JJ. and OVERTON, S.J.

KELSEY, Judge.

Granville Frazier Toms, III, appeals a decision of the circuit court terminating his residual parental rights pursuant to Code § 16.1-283(B) and approving a goal of adoption for six of his children. The circuit court erred, Toms argues, for three reasons.

First, Toms contends the evidence is insufficient to justify termination of his parental rights. Second, even if the evidence were sufficient, Toms claims the circuit court erred as a matter of law by ordering termination under Code § 16.1-283(B) without first confirming that he received adequate rehabilitative services while his children were in foster care. Third, Toms contends due process principles impose upon the state in all parental termination cases the duty to provide rehabilitative services to the parent.

Finding none of these arguments persuasive, we affirm.

I.

We view the evidence in the "light most favorable" to the prevailing party in the circuit court and grant to that party the benefit of "all reasonable inferences fairly deducible therefrom." Logan v. Fairfax County Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 463 (1991).

Frazier and Laura Toms are the biological parents of eight children — seven boys and one girl. On January 28, 2003, Laura Toms left the family home and walked to a neighbor's house. Her husband was holding her against her will, she told the neighbor, and had abused her. The children were home alone. When the sheriff's office responded to the Toms house, two deputies met one of the boys standing at the gate to the property. The boy told the deputies to leave and that his father was not at home. Concerned about the safety of the children, the deputies entered the property several minutes later. The boy ran into the woods. When the deputies walked into the house, they noticed a two-year-old boy standing on a bed. The rest of the children could not be found. They too had fled into the woods.

What appeared to be the Toms residence was a 16' by 16' unfinished structure. The structure had three stories, but no access between the floors. The family lived together on the first floor. The house had no electricity or indoor plumbing. There were no rooms, no indoor sinks or bathtubs, and no kitchen. The structure was "full of trash." The family used an outdoor tub for bathing and a primitive outdoor latrine. The yard around the structure was littered with alcohol bottles and cans.

About thirty minutes after the deputies arrived, Fraizer Toms appeared at the house. He was visibly intoxicated and agitated. The deputies sought his assistance in finding the children, but he refused to cooperate and was eventually arrested. A K-9 unit and multiple aircraft assisted in the search for the children. It was near freezing temperatures, and the children had no coats, hats, or gloves to protect them against the cold. About eight hours later, at around 3:30 a.m., the children emerged from the woods. The rescue unit took the children to the hospital for examination for potential hypothermia.

Laura Toms was hospitalized that same evening due to a psychiatric condition. The children were placed in a foster home by Hanover Department of Social Services (HDSS) the next day, and petitions were submitted seeking emergency removal orders for the children. The Hanover Juvenile and Domestic Relations District Court approved the removal, holding that the children were abused or neglected by their parents. The JDR district court also approved foster care plans for the children presented by HDSS and allowed HDSS to perform additional evaluations and assessments to determine the appropriate goal.

In October 2003, the JDR district court approved HDSS's goal of adoption for the children and, in February 2004, ordered that Frazier and Laura Toms's residual parental rights be terminated.¹ Both appealed these decisions to the circuit court.

At the circuit court hearing, the children's psychologists testified to the profound neglect evidenced by the children's underdeveloped speech, intelligence, motor skills, and social and emotional functioning. The children scored below the first percentile on standardized child developmental tests. The children had "received no health care, no education, no social skills, no speech skills." The Toms residence "was so pathetically substandard that it itself demonstrates abuse and neglect." The guardian ad litem for the children reported to the circuit court that, during his first meeting with the children, their "speech was almost wholly unintelligible, consisting of `grunts' and various forms of body language."

Psychological testing revealed that Frazier Toms suffered from episodes of delusional thinking, social phobias, paranoia, obsessive-compulsive disorder, depression, severe anxiety, and avoidant personality features. The extent of his mental illness led one psychologist to conclude that his prognosis for rehabilitation was poor. At one point in the evaluation process, Frazier's mother reported that her son had been diagnosed as a teenager with paranoid schizophrenia and was hospitalized for that condition. Commenting on this report, the psychologist who prepared a parenting assessment of Toms noted: "Signs of his paranoia were clearly evident during this assessment process." The parenting assessment concluded that the "children would be at serious risk if returned to Mr. Toms at this time or in the near future."

The evidence also showed that Toms started drinking alcohol at age six. In 1995, Toms had his driving privileges suspended after a DUI conviction. By 1998, he was consuming up to six beers and a pint of alcohol on a daily basis. He typically passed out at least twice a week from intoxication. Toms's counsel admitted to the circuit court that Toms "began to seriously abuse alcohol, which, of course, made everything worse." His counsel further acknowledged that "this family lived in nothing short of absolute crisis conditions for three years before Hanover police, and finally DSS, intervened in January 2003."

At the circuit court hearing, Toms's counsel conceded that HDSS proved — as required by Code § 16.1-283(B)(1) — that Toms's neglect or abuse of his children "presented a serious and substantial threat" to their lives, health, or development. Toms argued, however, that HDSS failed to prove — as required by Code § 16.1-283(B)(2) — that it was "not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the child[ren's] safe return to [their] parent or parents within a reasonable period of time."

Agreeing with the judgment of the JDR district court, the circuit court approved the goal of adoption and ordered that Toms's parental rights be terminated under Code § 16.1-283(B). "Given the abuse and neglect heaped upon [the Toms children] that has so profoundly affected them," the circuit court concluded, "it is without a doubt that it is in their best interest."²

In a related criminal proceeding, the circuit court convicted Toms of seven misdemeanors and two felonies for the abuse and neglect of his children. He remains incarcerated at this time on those convictions.

II.

Toms appeals the circuit court's decision to terminate his parental rights.³ On appeal, Toms claims the circuit court erred because (A) insufficient evidence supports the decision to terminate, (B) HDSS violated a statutory duty to provide him with rehabilitative services, and (C) constitutional due process principles independently require rehabilitative services prior to termination.

A. SUFFICIENCY OF THE EVIDENCE

When reviewing a decision to terminate parental rights, we presume the circuit court "thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests." Fields v. Dinwiddie County Dep't of Soc. Servs., 46 Va.App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting Farley v. Farley, 9 Va.App. 326, 329, 387 S.E.2d 794, 796 (1990)). "The trial court's judgment, `when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Id. (quoting Logan, 13 Va.App. at 128, 409 S.E.2d at 463 (citation omitted)). In its capacity as factfinder, therefore, the circuit court retains "broad discretion in making the decisions necessary to guard and to foster a child's best interests." Farley, 9 Va.App. at 328, 387 S.E.2d at 795.

The circuit court in this case terminated Toms's parental rights under Code § 16.1-283(B). Under that subsection, residual parental rights may be terminated if clear and convincing evidence demonstrates that it is in the children's best interests, that the neglect and abuse suffered by the children presents a serious and substantial threat to their life, health, or development (subsection B(1)), and that it is not reasonably likely that the conditions which resulted in such neglect or abuse can be substantially corrected or eliminated so as to allow the children's safe return to their parent within a reasonable period of time (subsection B(2)). See generally City of Newport News Dep't of Soc. Servs. v. Winslow, 40 Va.App. 556, 561-62, 580 S.E.2d 463, 465-66 (2003).

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