Virginia Lawyers Weekly VA Lawyers Weekly
Where the circuit court found appellant neglected her twin daughters and approved plans for foster care placement with a goal of adoption, there were no procedural errors in the proceedings. Further, the record fully supports the court’s dispositional orders.
Background
Appellant mother, who was pregnant with twins, did not seek prenatal care. She tested positive twice for PCP use, a drug she admitted she had abused for many years. Her rights to three other children had been previously terminated. On the day that the twins were born prematurely, the Alexandria Department of Community and Human Services received allegations that mother had neglected the children.
ADCHS filed abuse and neglect petitions. When the twins were released from a neo-natal intensive care unit, they were placed with ADCHS under emergency removal orders.
The Alexandria JDR Court conducted an adjudicatory hearing, found the children were neglected or abused and entered orders. At the dispositional hearing, the JDR court entered orders transferring custody to ADCHS and approved foster care plans.
Mother appealed for a de novo hearing in circuit court on both the adjudicatory and dispositional findings. The circuit court also concluded the children had been neglected or abused and approved foster care and adoption plans. Mother appeals.
No procedural errors
Mother first contends “that the trial court erred by issuing dispositional orders in both cases without conducting separate dispositional hearings. We find that mother has failed to meet her burden of showing that there were no dispositional hearings.
“Code § 16.1-278.2(A) provides that ‘[w]ithin 60 days of a preliminary removal order hearing … or a hearing on a preliminary protective order,’ a dispositional hearing ‘shall be held if the court found abuse or neglect and (i) removed the child from his home or (ii) entered a preliminary protective order.’
“Although a panel of this Court decided that a trial court errs when it fails to hold a dispositional hearing or issue a dispositional order … a trial court is not precluded from holding adjudicatory and dispositional hearings on the same day. …
“While we recognize that adjudication and disposition are two separate determinations, we find that these determinations can be made on the same day during a single proceeding, provided that the adjudicatory abuse and neglect determination occurs first as a predicate to a separate dispositional determination on custody. Upon reviewing the timing of the adjudication and dispositional findings, the trial court made the findings in the correct order.
“The record in this case reflects that the trial court scheduled March 2, 2020, to make both determinations and then held both adjudicatory and dispositional hearings during the March 2 proceeding.
“ADCHS presented evidence to the trial court that supported its request for an adjudicatory finding of abuse and neglect as well as its request for entry of a dispositional order authorizing continued placement with ADCHS.
“Pursuant to Code § 16.1-278.2(A), the trial court found the children abused or neglected at the March 2 proceeding and subsequently considered possible orders of disposition to protect their welfare; specifically, placement with mother, as she requested, or continued placement with ADCHS – the local board of social services. The trial court subsequently entered the dispositional orders on March 6, 2020.
“Under these circumstances, there is no statutory authority prohibiting the trial court from proceeding as it did. Although the trial court did not specifically discuss the foster care plans or provide detailed justifications for its decisions, the foster care plans were before the trial court for a dispositional decision and the court was not required to state for the record the reasons underlying its decisions absent a statutory mandate.”
Abuse or neglect findings
“Mother also contends that the trial court erred by adjudicating the children abused or neglected. Specifically, mother claims that the evidence was insufficient to find that she abused or neglected the children because they did not test positive for PCP and she showed an appropriate level of care and concern for the children while they were in the NICU.
“We disagree and find the evidence sufficient to support the trial court’s adjudication of abuse or neglect. …
“[T]the undisputed evidence shows that during mother’s high-risk pregnancy with the children, she did not seek any prenatal care. She also admitted to using PCP during the pregnancy and, in fact, tested positive for PCP on several occasions. The children were then born to her prematurely.
“It is therefore apparent from the record that her failure to obtain prenatal care and her continued abuse of PCP during the pregnancy created a substantial risk of death, disfigurement, or impairment of bodily or mental functions for the children.
“As a result, the trial court’s adjudication that mother’s conduct created a ‘substantial risk of impairment of bodily or mental functions’ was not plainly wrong or without evidence to support it. There were also previous abuse or neglect findings concerning mother’s three other children.
“In addition, mother’s 2017 parental capacity assessment concluded that she suffers from cognitive limitations, has bipolar personality disorder, and is inconsistent in attending mental health treatment; consequently, the report concluded that she is at risk for future child neglect.”
Affirmed.
Simms v. Alexandria Dep’t of Community and Human Services, Record No. 0915-20-4, June 15. 2021. CAV (Athey) from Alexandria City Cir. Ct. (Dawkins). Teresa E. McGarrity for appellant. Matthew W. Greene for appellee. Gerylee M. Baron, guardian ad litem for the children. VLW 021-7-070, 8 pp. Unpublished.
