DSS did not establish abuse and neglect allegations

Even though the trial court erred by granting the mother’s motion to strike at the end of the Lynchburg Department of Social Services’ case-in-chief in this child abuse and neglect matter, the error was harmless because the court would have reached the same conclusion at the close of all evidence.

The LDSS did not establish a prima facie case of abuse and neglect.

Overview

The Harrisonburg JDR court entered a child protective order against the mother of M.J., granting father, who lived in Lynchburg, sole custody. Later, LDSS moved in the Lynchburg JDR court for an emergency removal after discovering M.J. was not living with her father, and neither M.J. nor  mother could be located.

The Lynchburg JDR court placed M.J. in the temporary custody of LDSS. After a hearing, custody was transferred to LDSS with the primary goal of returning M.J. to her father’s home.

At a later hearing, the JDR court took some evidence, and after realizing that custody could be an issue, continued the hearing until it heard testimony from father and any other witnesses. When the LDSS concluded its case at the continued hearing, the court granted mother’s motion to strike, which would have dismissed the case.

The court stayed its order on father’s motion “pending clarification from the Harrisonburg JDR regarding its prior child protective order against mother.” Eventually, the court entered a final order dismissing LDSS’s abuse/neglect petition.

Discussion

“LDSS assigns error to the trial court granting mother’s motion to strike at the conclusion of LDSS’s case-in-chief. LDSS contends that it established a prima facie showing of abuse and neglect as required under Code § 16.1-252(A) sufficient to overcome mother’s motion to strike made at the conclusion of their case-in-chief. We agree.

“LDSS was only required at this point in the proceeding to establish, in a light most favorable to LDSS, a prima facie showing of abuse and neglect. The previous findings of the Harrisonburg JDR along with the testimony of the other witnesses during the trial met that burden given that LDSS was only required to establish a prima facie showing of abuse and/or neglect in a light most favorable to the plaintiff, LDSS. …

“Mother argues that there was no imminent threat of abuse or neglect of M.J. and that all the evidence presented to the trial court that would potentially give concern for abuse and neglect occurred after the removal was sought by LDSS. …

“[A] prior order of abuse and neglect is relevant to show that the potential exists for a child to be abused or neglected in the future. … Here, mother had previously been found to have abused or neglected M.J. by the Harrisonburg JDR.

“Both parents failed to follow the instructions of that court and subsequently M.J. was unable to be located to assure her safety. The actions of mother and the father, taken in the light most favorable to LDSS, show that a prima facie case of abuse and neglect had been established by LDSS.

“Therefore, for the trial court to grant the motion to strike at the close of LDSS’s unrebutted evidence was erroneous. …

“Although it was error for the trial court to grant mother’s motion to strike following LDSS’s case-in-chief, we find that the error was harmless.

“By granting the motion to strike at the close of LDSS’s case-in-chief, the trial court had all of LDSS’s evidence before it. While the standard was much more generous to LDSS at the time of the error, the trial court would have applied a much more stringent standard to LDSS’s evidence at the conclusion of all the evidence.

“Also, mother was not required to present any evidence during her subsequent case-in-chief and was, furthermore, unlikely to provide any evidence that supported LDSS’s petition. Moreover, LDSS did not call mother as an adverse witness during its case-in-chief forgoing their opportunity to adduce any further evidence that she, in theory, could have provided in support of its petition.

“In this bench trial, the judge was the ultimate trier of fact and would have reached the same conclusion at the close of all the evidence as was reached at the conclusion of LDSS’s case-in-chief.

“Accordingly, any error in the ruling of the trial court as alleged was harmless since the trial court would not have abused its discretion in discounting the previous findings of the Harrisonburg JDR and determining that LDSS failed to establish that M.J. was an abused and neglected child by a preponderance of the evidence.”

Affirmed.

Lynchburg Dep’t of Social Services v. Boxley, Record No. 1018-19-3, May 19, 2020. CAV (Athey) from Lynchburg City Cir. Ct. (Yeatts) Susan L. Hartman for appellant, Jonathan M. Wallis for appellee. VLW 020-7-118, 9 pp. Unpublished.