Virginia Lawyers Weekly//October 3, 2023
Virginia Lawyers Weekly//October 3, 2023//
The trial court correctly determined that appellant’s child had been abused or neglected. The court properly granted the City of Hampton Department of Social Service’s request to transfer custody of the child to the maternal grandmother.
“Father contends that the Department failed to show that the child was abused or neglected, given that the parents did not confess to abusing the child and given that no eyewitness viewed the parents abusing the child.
“However, the Department presented credible medical evidence that showed that the minor child’s ‘subdural hemorrhages and retinal hemorrhages are diagnostic of abusive head trauma, in the absence of any plausible history of accidental trauma.’
“There is credible medical evidence in the record to support the circuit court’s finding, and the circuit court was not plainly wrong to give this evidence its due weight. …
“In addition, the record now before us on appeal does not show that the child was injured by an accident.
“Consequently, we cannot say that the circuit court was plainly wrong in finding that mother and father ‘were the parties responsible for the wellbeing of the child,’ that mother and father reported that they were the child’s only caretakers, and that the child suffered non-accidental head trauma.
“Thus, given the record now before this Court on appeal, we certainly cannot say that the circuit court erred by denying father’s motion to strike and by finding that the child was abused or neglected.
“Father also challenges the circuit court’s decision to transfer custody of the child to the maternal grandmother.
“Father contends that the Department ‘simply took the child from the parents and handed the child over to the maternal grandmother’ — and that the Department ‘made no effort whatsoever during the following year and a half to contact [the] parents or offer any sort of services’ to them.
“As discussed supra, the circuit court found that the child was abused or neglected by mother and father. The circuit court also determined that there was no less drastic alternative than to transfer legal and physical custody of the child.
“After finding that a child is abused or neglected and after finding that there is no less drastic alternative to transferring custody of the child, the trial court may transfer custody of the abused child to a ‘person with a legitimate interest subject to the provisions of subsection A1.’ Code § 16.1-278.2(A)(5)(a).
“Following the provisions of Code § 16.1-278.2(A1), the circuit court found that the maternal grandmother was willing and qualified to receive and care for the child, that she was willing to have a positive and continuous relationship with him, that she was committed to providing a permanent and suitable home for him, and that she was willing and had the ability to protect him from abuse and neglect.
“The Department conducted a home visit of the maternal grandmother’s residence and found it to be ‘well[-] kept with no safety hazards.’ The maternal grandmother also had an appropriate sleeping area for the child.
“In addition, she was willing to care for him and understood the conditions of the safety plan implemented for the child’s safety. Consequently, we cannot say that the circuit court erred in finding that the maternal grandmother was a person with a legitimate interest who satisfied all of the requirements of Code § 16.1-278.2(A1).
“Therefore, the circuit court did not err in transferring custody of the child to the maternal grandmother after finding the child to be abused or neglected.”
Thornwell v. City of Hampton Dep’t of Social Services, Record No. 0399-22-1, Sept. 12, 2023. CAV (unpublished opinion) (Beales) From the Circuit Court of the City of Hampton. (Gaten) Charles E. Haden for appellant. (Cheran Cordell Ivery, City Attorney; L. Olivia Alexander, Assistant City Attorney II; Christopher Young, Guardian ad litem for the minor child, on brief), for appellee. Appellee and Guardian ad litem submitting on brief. VLW 023-7-355, 9 pp.