Wilson v. Russell Cnty. Dep't of Soc. Servs.
| Decision Date | 10 May 2022 |
| Docket Number | 0986-21-3 |
| Parties | MICKEY WILSON v. RUSSELL COUNTY DEPARTMENT OF SOCIAL SERVICES |
| Court | Court of Appeals of Virginia |
FROM THE CIRCUIT COURT OF RUSSELL COUNTY Michael Lee Moore, Judge
David R. Tiller; Tiller & Tiller, P.C., on brief), for appellant. Appellant submitting on brief.
M Katherine Patton; F. Bradley Pyott, Guardian ad litem for the minor child; Gillespie, Hart, Altizer & Whitesell, P.C. on brief), for appellee. Appellee and Guardian ad litem submitting on brief. [1]
Present: Judges Humphreys, O'Brien and Raphael
Mickey Wilson ("father") appeals a circuit court order terminating his parental rights under Code § 16.1-283(C)(2) and approving a foster care goal of adoption. He argues the court lacked subject matter jurisdiction to enter the termination order and, alternatively, erred by finding sufficient evidence to terminate his parental rights.
J.W [2] born April 12, 2019, is the child of father and Alyssa Franks ("mother"). In May 2019, the Russell County Department of Social Services obtained a protective order for J.W. because mother was undergoing inpatient mental health treatment and father could not provide a suitable home. At first, father and J.W. lived with father's mother in a home DSS described as "extremely cluttered as if 'hoarders' lived there." J.W. then resided with a paternal uncle; however, the uncle did not want to become a DSS-approved foster care provider, and father no longer wanted J.W. to live with relatives.
On June 17, 2019, the juvenile and domestic relations district court ("JDR court") ruled that J.W. was abused or neglected. The JDR court transferred custody to DSS because "[c]ontinued placement in the home would be contrary to the welfare of the child" and "[r]easonable efforts ha[d] been made . . . to prevent removal of the child from the home." The order noted that these findings were "[b]y agreement of all parties" and granted father supervised visitation.
In August 2019, when she was approximately four months old, J.W. was placed in the foster home where she remains today.
DSS provided services to both parents, including parenting classes and mentoring, mental health services, and visitation assistance. Father rented an apartment and started preparing for J.W.'s return. A DSS social worker visited the home and found that, although father was "making progress with services," the apartment's condition had deteriorated, he had never set up a crib, and his cluttered vehicle could not accommodate a car seat.
In March 2020, father moved into a mobile home with mother, who had been released from the mental health facility. Father testified that they moved to have more room and privacy, and he believed the mobile home was safer for J.W.
A social worker visited the mobile home and identified multiple safety hazards that "pose[d] a risk of harm to the child." Repairs were needed for the siding, ceilings, and exposed electrical and plumbing components. An extension cord was running through a broken window in the bedroom the parents had designated for J.W.
When the social worker returned in August 2020, the necessary repairs had not all been made, and the "same pattern of extensive clutter" from the prior living situations had expanded into the "home, yard, and carport." The social worker spoke to father about cleaning up the premises and installing child safety devices.
The social worker and her supervisor returned in October 2020, again finding the mobile home, yard, and carport cluttered. None of the child safety devices had been installed in the residence. Although father had made some initial repairs, the residence still contained "multiple safety hazards for the child," including weak flooring, exposed nails, and the broken window in J.W.'s designated room. Father advised the supervisor that he did not intend to fix the window. Father had also purchased an old motor home that was parked in the yard and in disrepair.
Another social worker visited in July 2021. Father did not let her inside, so she returned a week later. Although father had made some repairs to the home, the social worker still observed several safety hazards. There were holes in the wall, and the extension cord was still running through the broken window in J.W.'s room. She observed a gun on the couch and a crossbow and knife in the yard. The carport had "[c]ords, wiring, tools, and nuts and bolts . . . scattered everywhere," and a "disassembled engine [was] scattered all over."
At trial, father explained that he could have cleaned his car and residence "in five minutes" if J.W. was coming home. He described the mobile home as a "fixer-upper," and although he acknowledged that it needed "multiple repairs to be suitable and safe" for a child, he "felt like he was making progress in getting things fixed to [DSS's] satisfaction." Father also admitted hiding in the woods when the child's guardian ad litem visited in October 2020; the guardian knocked on the door and took pictures of the property, and father threatened to bring criminal charges for trespass. Father testified that he did not let the social worker into his home in July 2021 because he "had a female companion inside the home and they had been drinking moonshine."
Father maintained consistent visitation with J.W. Beginning in March 2020, and for approximately another four months, visitation was virtual due to the COVID-19 pandemic. However, all visits were in person in the eight months before March 2020 and in the four months leading up to the termination of parental rights. By agreement of all parties, J.W.'s foster mother attended the visitations to help J.W. adjust. The foster mother brought a diaper bag and necessities, sometimes fed the child, and testified that the parents never offered to help. Father testified that the "virtual visits did not work well because of [J.W.'s] age and attention," and the in-person visits were not long or frequent enough to facilitate parent-child bonding. Father also stated that he was "less interactive with [J.W.]" during visitation because he wanted to give mother the chance to make up for lost time; he also thought the foster mother's presence interfered.
The JDR court approved interim foster care service plans in August 2019 and in October, March, and August 2020. Initially, the goal was for J.W. to return home. At the August 2020 hearing, the court advised the parents "to have everything completed and in order by next court date or the goal would have to be changed." A hearing was set for December 7, 2020.
On November 2, 2020, DSS petitioned for a permanency planning hearing and identified a new permanent goal of "relative placement/adoption." DSS specifically stated that it was not seeking termination of parental rights at that time because "the filing of such a petition is not in the best interest of the child."
DSS filed an updated foster care service plan on November 9, 2020, reflecting concurrent goals of relative placement and adoption. In its filing, DSS emphasized that it had not found a suitable relative placement for J.W. and the foster parents were interested in adopting the child. The December 7, 2020 hearing was continued to January 14, 2021.
On January 14, the JDR court "reviewed the foster care plan with the permanent goal of adoption" and entered a permanency planning order finding that "[t]ermination of parental rights [was] documented as being in the best interest of the child." The JDR court ordered DSS to "file petitions to terminate parental rights pursuant to [Code] § 16.1-277.01 or 16.1-283." Code § 16.1-277.01(D) authorizes a court to terminate parental rights based on a "petition seek[ing] approval of a permanent entrustment agreement which provides for the termination of all parental rights," and Code § 16.1-283 authorizes the involuntary termination of parental rights.
On January 21, 2021, DSS filed a petition requesting that the JDR court "approve an entrustment agreement for permanent surrender of the child." DSS did not file a petition for involuntary termination of parental rights pursuant to Code § 16.1-283.
The JDR court conducted a hearing on March 1, 2021. An order from that day states that "the petition for termination of the father's residual parental rights is granted." Accordingly, the JDR court terminated father's parental rights under Code § 16.1-283(C)(2) and authorized adoption. The court also terminated mother's parental rights, and she did not appeal.
Father appealed to the circuit court, which held a de novo trial on July 26, 2021. The final order states that the parties "appeared . . . on the petition for termination of residual parental rights . . . and the petition for approval of the permanency plan entered [sic] by the [JDR court] on March 1, 2021."
The final order also reflects the court's factual findings from the trial, including that J.W. entered DSS custody in June 2019 when mother was involuntarily hospitalized due to mental instability and "with the consent and agreement of [father] given the unsuitable living conditions of his mother's home where he had been residing with the child."
The court found that DSS provided services and visitation including parenting classes and psychological evaluations, in which father participated. Having reviewed video from the visitation, the court found a "lack of bond between the child and the parents" and a "lack of actual participation by the father with the child during visitation." Additionally, the photographs from father's three residences during the pendency of the case (the paternal grandmother's home, father's apartment, and the mobile home) depicted the conditions that led to the child first coming to...
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