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No error in reference to mom’s criminal case

Rebecca M. Lightle//September 7, 2018

No error in reference to mom’s criminal case

Rebecca M. Lightle//September 7, 2018

Because a mother first raised the fact of a positive drug test on her sentencing date in a different matter, and because her children had been in foster care for nearly a year and a half, the circuit court did not err in terminating her parental rights.


Appellant Kimberly Willoughby’s four children were removed from her home in early 2016, following a finding of abuse and neglect. The Department of Social Services identified a goal of return home and recommended numerous services for Willoughby. However, the juvenile and domestic relations district court later terminated her parental rights and approved the goal of adoption, and the circuit court upheld the order.

Willoughby appeals, on grounds that the circuit court erred in referencing a positive drug test related to a different charge and in not giving her a reasonable time to cure conditions of neglect.

Reference to unrelated charge

The circuit court did not err when it referred to Willoughby testing positive for cocaine on the date of sentencing for an unrelated charge.

Although the same judge heard both the criminal matter and the termination of parental rights matter associated with Willoughby, all the evidence relating to the criminal matter that the circuit court referenced was admitted at the termination hearing through Willoughby’s own evidence. Willoughby herself testified regarding her experience with the criminal justice system. When asked about her drug tests after leaving a substance-abuse and mental-health center, she said they were all clean “except for the one that Judge Higgins gave me when she put me in jail.”

Therefore, Willoughby made multiple admissions about her unrelated criminal case; these were admitted into evidence without objection and were part of her testimony during the termination hearing. Thus, they were ripe for the circuit court’s consideration as the trier of fact, and it did not err in considering her positive test for cocaine on the date of her sentencing hearing for criminal forgery.

Time to correct neglect

The circuit court also did not err in finding that Willoughby was afforded a reasonable time to correct conditions of neglect.

The children were removed from Willoughby’s care on February 11, 2016. The removal hearings were a year and four months later. In that time, Willoughby was offered multiple programs and services to substantially correct the behavior that led to the removal of her children. She was given a substance abuse evaluation, a psychological evaluation, referred to individual therapy once a week, referred to family treatment court, and assigned a parent mentor to help with transportation since she lacked a driver’s license.

Despite these opportunities, Willoughby was routinely unsuccessful in taking advantage of them. She moved frequently, making it difficult for the Department to provide consistent transportation. She was terminated from the work-release program after she came back from work intoxicated from consuming two bottles of NyQuil. She failed to enter the family treatment court program. During the nine months she wore an alcohol-monitoring bracelet, there were at least six violations. While the children were in foster care, Willoughby tested positive for cocaine, oxycodone, and THC, even appearing in court under the influence. She once arrived drunk for a supervised visit with the children. And she was consistently involved in abusive and unhealthy relationships with men while the children were in her care.

Willoughby herself acknowledged that the conditions resulting in neglect could not be substantially corrected or eliminated within a reasonable period of time. At the termination hearing, she estimated she would be ready to get her children back in another year.

Thus, the record supports the circuit court’s finding that it was not reasonably likely that Willoughby would remedy the issues that resulted in the children’s foster care placement within a reasonable time.


Willoughby v. Albemarle Cty. Dep’t of Soc. Servs., Record No. 1619-17-2, Aug. 28, 2018. CAV (Humphreys), from Albemarle Cir. (Higgins). VLW No. 018-7-225, 6 pp.

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