Virginia Lawyers Weekly VA Lawyers Weekly
There was sufficient evidence to support the circuit court’s protective order against the grandparents of a child in their custody and the court’s determination that the child was abused or neglected.
Analysis
“[T]he grandparents argue that the circuit court erred in entering the child protective order and by finding that the Department proved by a preponderance of the evidence that the child was abused or neglected. …
“The trial court found that the child had escaped from the grandparents’ home unnoticed on two separate occasions within the last year.
“On both occasions, the child was found wandering alone on a four-lane highway. After the first incident, the grandparents knew that the child could open the doors and leave the home, yet the child was left unattended again in circumstances in which he was able to escape.
“The trial court rejected the grandparents’ denial of the August incident; instead, it found that Dr. Falbo’s account was ‘very compelling.’
“Dr. Falbo testified that he saw a young child between the ages of four and eight, running across the highway, in the dark, without shoes. He also testified that he picked up the child and returned him to the home where the grandparents live, which the grandparents denied ever happened.
“However, the trial court found that it would be ‘extremely unlikely that two different four-year old children were running out on Route 58 on August 13, 2020.’
“It is well established that the trier of fact ascertains a witness’ credibility, determines the weight to be given to their testimony, and has discretion to accept or reject any of the witness’ testimony. …
“Consequently, credible evidence supports the finding that the child was ‘without parental care or guardianship caused by the unreasonable absence … of the child’s … guardian’ and was at ‘substantial risk’ of physical injury or death when he was found wandering unattended – on two separate occasions – on a four-lane highway. …
“Of particular concern was the grandparents’ lack of supervision, especially considering the child’s young age, his autism diagnosis, and his proclivity for wandering. …
“Considering the totality of the evidence, the circuit court did not err in entering the child protective order against the grandparents and in finding that the child was abused or neglected.”
Affirmed.
Cox v. Carroll County Dep’t of Social Services, Record No. 0067-22-3, Feb. 7, 2023, 2022. CAV unpublished per curiam opinion. From the Circuit Court of Carroll County (Geisler). R. Christopher Muniquefor appellant Richard Howard Cox. Elizabeth Rakes for appellant Sonya Jane Cox. Michael R. Bedsaul; Mary Foil Russell; Karen Loftin, Guardian ad litem for the minor child. VLW 023-7-077, 8 pp.
