Virginia Lawyers Weekly VA Lawyers Weekly
The circuit court did not err in concluding that a 12-year-old girl who had been fostered for two years by the same family, along with her siblings, should not be placed instead with her incarcerated father’s mother. The father’s family had no relationship with the child, and the grandmother had not responded to multiple attempts to engage her in the relative-placement process.
Background
C.F. and her half-brothers were removed from the custody of her mother and stepfather in 2015. The Department had been working with C.F.’s family since 2012 due to concerns over homelessness, alleged drug use, ongoing criminal activity, physical abuse, and inadequate hygiene. C.F. and her half-brothers were placed together in a therapeutic foster home, which allowed C.F. to maintain a secure bond with her siblings.
C.F., age 12, was below grade level in all subjects and was found to be abused or neglected. The Department attempted to locate a relative who would be a suitable placement for C.F. Her father, Appellant Jamie Desper, could not take custody because he was incarcerated with a projected release date in 2026. He also advised the Department that he had not been active in C.F.’s life and had not seen her since she was a toddler. But he provided contact information for his mother (“grandmother”).
By letter, the Department inquired whether grandmother or another relative wanted to be considered as a placement option for C.F. The letter asked grandmother to contact the Department “as soon as possible” and offered to provide grandmother with information concerning C.F.’s circumstances. The Department then sent grandmother a home study packet, which included all the forms necessary for the Department to conduct its investigation for possible placement with her. Some months later, the Department sent a follow-up letter about relative placement and set a deadline for return of required documents. The Department received no response from grandmother.
The Department later moved to change the foster-care goal from “return home” to “adoption.” It reported that it could not approve grandmother “as a placement resource” because of her “lack of participation and cooperation with the home study process.” The Department opined that C.F. (and her siblings) needed to remain in foster care to ensure their continued safety and well-being.
The juvenile and domestic relations district court approved the goal of adoption. The order noted, “Both parents object to entry of this Order but stipulated that facts were sufficient for entry.” The Department then petitioned for termination of Desper’s residual parental rights, which the JDR court granted.
While Desper’s appeal was pending in the circuit court, grandmother moved to intervene. She said she knew of “no impediment” to her being qualified as a caregiver for C.F. The parties appeared for an ore tenus hearing on October 30, 2017. Grandmother and the Department presented testimony and evidence. After considering the evidence and argument of counsel, the circuit court dismissed grandmother’s motion to intervene and denied her request for custody and visitation of C.F. The circuit court also found that the permanency goal of adoption was achievable and that the Department had shown that termination of Desper’s parental rights was in the best interests of the child. Desper has appealed.
Record on appeal
Before addressing the merits, the court notes the limited record on appeal and the impact that has on the court’s review.
The record has no transcript or written statement of facts. Although the record indicates that a hearing occurred, it does not include any incidents of trial such as objections, arguments on the motion to strike, and stipulations.
The record does contain an opinion letter from the circuit court, but this court concludes that the opinion is not properly part of the record. The circuit court entered final orders on the permanency plan and termination of Desper’s parental rights on January 26, 2018. Father filed notices of appeal on February 9 and 12, 2018. The circuit court’s letter opinion is dated March 15, 2018 — more than 21 days after entry of the final orders and more than 30 days after Desper noted his appeal. Under Minor v. Commonwealth, 66 Va. App. 728 (2016), the circuit court no longer had jurisdiction to enter the letter opinion.
Suitable relative placement
Given the limited record and Desper’s stipulations that the evidence was otherwise sufficient to support termination and adoption, review is confined to the question of whether there was sufficient evidence for the circuit court to properly determine whether any relatives were willing and suitable to take custody of the child, and to consider such relatives in comparison to other placement options. The record supports the circuit court’s finding, based on oral evidence heard, that grandmother was not a suitable placement for C.F. as compared to other placement options.
The Department worked with both parents to identify a suitable relative placement. It contacted grandmother early on, but she did not respond to repeated requests to complete home study documents. She took no action until after termination was on appeal to the circuit court.
At the time of the hearing, C.F. had been in foster care for nearly two years, with the same family along with her siblings. By the time of the hearing, she had “developed a healthy relationship and secure bond with her foster/adoptive parents as well as their extended family.” Meanwhile, grandmother still had not completed the home study paperwork or taken any steps to forge a relationship with C.F. Neither Desper nor his family had been an active part of C.F.’s life since she was 18 months old.
Compared to grandmother’s passive indifference, the circuit court had evidence that C.F. was in a stable and secure environment with her siblings, with whom she had a close bond. That bond provided C.F. with much-needed “emotional support.” Significantly, grandmother is not related to C.F.’s siblings, so C.F.’s placement with grandmother would have undermined the crucial emotional support she derived from her close bond to them. In making its comparative determination concerning the “suitability” of a relative placement, the circuit court can consider the effect of separating a child from a sibling.
The Department had a duty to investigate placement of C.F. with relatives before the circuit court could terminate Desper’s parental rights. That duty was satisfied in this case when grandmother testified at the hearing. Her testimony and evidence supplied the circuit court with the necessary evidence to determine whether any relatives were willing and suitable to take custody of C.F. and to consider such relatives in comparison with other placement options.
Because this court defers to a lower court’s judgment based on evidence heard ore tenus unless plainly wrong or without support, it does not disturb the circuit court’s ruling that no relatives were suitable placements.
Affirmed.
Desper v. Shenandoah Valley Dep’t of Soc. Servs., Record No. 0634, Aug. 7, 2018. CAV (per curiam), from Augusta Cir. Ct. (Ludwig). VLW No. 018-7-207, 10 pp.
