CAV: Unknown source of abuse blocks twins’ return home

Twin baby girls who, at about four months old, were found to have bone fractures and subdural hematomas indicative of abuse, could not be returned to their parents’ care when the parents were not forthcoming about how the abuse might have occurred. The mother’s parental rights were terminated after 17 months had passed and she was unwilling to identify who she thought was responsible.

Background

Appellant Tyeisha Thrasher and Carl Allen married in 2015 and had twin girls in November of that year. In February 2016, one baby was admitted to the hospital for failure to thrive. Testing showed she had rib fractures, a “pull and bend” fracture of her left leg, and old and new subdural hematomas. A doctor indicated these injuries were non-accidental, and in March, the Department of Human Services received a referral that the baby had been abused. In an interview with the Department, neither parent could explain the baby’s injuries.

Meanwhile, the other twin visited the hospital for a complete body scan. That scan revealed healing humerus and rib fractures.  A doctor reported that these injuries indicated abuse. The Department took both twins into custody and filed emergency removal petitions.

During the summer and fall of 2016, Thrasher completed parenting classes and Allen completed individual therapy. Both parents received structural family therapy. Allen didn’t complete a psychiatric evaluation, assessment for medication management, drug treatment, or regular drug screenings. He was not forthcoming with the Department about his drug use and criminal activities and was only intermittently employed.

Neither parent ever provided the Department with information about the possible source or sources of the children’s injuries that the Department could investigate.

In December 2016, the Department changed the children’s goal from return home to adoption. At the same time, Thrasher’s enlistment in the U.S. Navy concluded, and she began to experience difficulty maintaining stable housing, employment, and transportation. Allen reported they’d had some marital disputes that resulted in being forced to move out of their apartment. Both parents began to miss scheduled visitations, arrive late, or cancel at the last minute. Communication with Thrasher became very sporadic. Allen’s whereabouts were frequently unknown. They stopped participating in structured family therapy. Neither parent attended a permanency planning hearing in March 2017.

At the time of the termination hearing, Thrasher lacked transportation but had a job and lived in an apartment with Allen and their youngest child, born the previous spring.

The circuit court granted the termination petitions on grounds that more than a year had passed since the children were taken into care, and “the problem” had not been identified so that the children could be placed into circumstances that would “eliminate that problem.” Thus, the circuit court found, termination was in the children’s best interests. Thrasher has appealed.

Children’s best interests

In this case, the circuit court’s best-interests determination relied heavily on two factors: the need to protect the children from further abuse, and the passage of more than a year since their foster placement.

Neither of the parents ever provided the Department with information about who was responsible for the children’s injuries. It was not possible for the Department to consider potentially exposing the children to future harm by returning them to Thrasher’s unsupervised care. This condition had persisted for 17 months.

Further, the children were thriving in the care of a foster parent who hoped to adopt them. Their medical issues had been resolved and remediated by therapy, they were experiencing night terrors less frequently, and they’d developed supportive family relationships. The children had spent all but the first four months of their 21 months of life with their foster parent.

Thus, the circuit court’s best-interests finding was not plainly wrong.

Remedy of removal conditions

The evidence did not prove that Thrasher substantially remedied the conditions leading to foster care within the 12-month timeframe.

Thrasher completed parenting classes, but her participation in structured family therapy gradually decreased and then stopped in 2017, except for occasional phone calls to “check in” with her therapist. She also missed several scheduled, supervised visitations. When she did attend, she at times appeared disengaged and exhibited a flat affect.

Thrasher did find stable employment and housing, but only after an extended period of unemployment and housing instability. She completed a psychological and parenting evaluation, which indicated challenges that would continue to cause problems for the following year. The evaluation noted Thrasher’s “consistent pattern of failing to maintain stability and function with the addition of life stressors.”

Thrasher contends that her inability to explain how the children suffered their injuries didn’t justify terminating her parental rights. But mere acknowledgement of the seriousness of abuse and of the necessity of protecting the children from abuse doesn’t remedy their exposure to non-accidental injury at the hands of an unknown person or persons, where neither the mother nor father could be excluded from culpability.

Here, 14 months before termination of Thrasher’s parental rights, she expressed the belief that a family member was responsible for the children’s injuries. But she kept the person’s identity secret. Her ongoing refusal to identity the suspected abuser of her children, even after they were placed in foster care, was a demonstrated failure to make a reasonable change in behavior that would have helped remedy the conditions that led to foster placement.

The children were taken into care because of physical abuse by an unknown person. Although the parents each said that neither they nor the other was responsible, they also indicated that no one else could have been responsible. Therefore, neither parent could be excluded as a potential abuser, which meant that the Department could neither address the cause of removal nor progress with the children’s service plans. Further, Thrasher sought a protective order against Allen alleging domestic violence, yet continued to live with him at the time of the termination hearing.

A reasonable factfinder could have concluded from this evidence that Thrasher was, without good cause, unwilling or unable to take the steps necessary to substantially remedy the conditions at issue.

Reasonable agency efforts

Clear and convincing evidence supports the circuit court’s finding that the Department made reasonable and appropriate efforts to help Thrasher remedy the conditions that led to foster care placement.

The Department identified her need to understand developmentally appropriate discipline, her difficulty maintaining stability when confronted with life stressors, and the high risk that she could not protect her children. It refrained from parent coaching only because the parents were not ready to have the children unsupervised in their home. While offering services to address these challenges, the Department maintained the goal for the children of returning home, even while Thrasher availed herself of services less and less often.

Affirmed.

Thrasher v. Newport News Dep’t of Human Servs., Record No. 1323-17-1, Aug. 14, 2018. CAV (Malveaux), from Newport News Cir. (Sugg). VLW No. 018-7-211, 18 pp.