MEMORANDUM OPINION* BY v. Record No. 0510-21-2 JUDGE MARY GRACE O’BRIEN DECEMBER 6, 2022 JAZLENE WELLS AND DAMIEN ROANE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND D. Eugene Cheek, Judge

Keisha Dillard-Brady, Senior Assistant City Attorney (Lee L. Nelms, Guardian ad litem for the minor child, on brief), for appellant.1

Dorothea Kate O’Leary; Paul S. Kellinger for appellees.

The Richmond Department of Social Services (the Department) appeals the circuit court’s

dismissal of its petitions to terminate the residual parental rights of Jazlene Wells (mother) and Damien Roane (father) and approve the goal of adoption. The Department contends that the court

erred in requiring proof by clear and convincing evidence that mother and father abused or neglected their child (J.R.)2 before their parental rights could be terminated. The Department also challenges the court’s refusal to terminate parental rights under Code § 16.1-283(B) and (C)(2).

BACKGROUND

On January 26, 2019, mother brought three-month-old J.R. to the hospital and reported that

he was acting “fussy.” Medical personnel contacted the Department upon discovering that “the * Pursuant to Code § 17.1-413, this opinion is not designated for publication.

Pursuant to Rule 5A:19(d), the guardian ad litem filed a notice joining appellant’s brief.

We use the child’s initials to protect his privacy. child sustained multiple bruises,” including “a bruise and scratch on the inside back part of his throat” and a bruise on his chest “the size of a thumb that was reddish purple in color.” J.R. also had “scratch marks under both eyes.” Neither parent could explain the child’s injuries.

A social worker who saw J.R. at the hospital about 24 hours later did not observe the bruises and noted that “[t]he child did not appear to be in any pain or discomfort.” However, the treating physician expressed concern about the scratch and bruise at the back of J.R.’s throat and requested that the parents bring him back for a follow-up skeletal survey.

After missing three appointments without explanation, father returned for J.R.’s skeletal survey approximately one month later. The survey revealed that the child had “multiple healing rib fractures” on the “second through sixth ribs” with a “suspected healing fracture of the anterior left seventh rib” and “a new fracture on [the] left wrist.”

At the time of the skeletal survey, J.R. was living between the households of his paternal and maternal grandmothers and was cared for only by his mother, father, and grandmothers. None of his caregivers could explain how J.R. sustained the injuries.

The Department filed an abuse or neglect petition in the juvenile and domestic relations

district court (JDR court), alleging that “[d]ue to the nature of the injuries sustained (old/new), the vulnerability of the [child], and the fact that the [child] had multiple caregivers[,] it [was] unsafe for the child to remain in the care of either parent.” The JDR court entered an emergency removal order on February 21, 2019, placing J.R. in the Department’s custody. The court subsequently adjudicated that the child was abused or neglected and entered a dispositional order on April 8 requiring the parents to comply with all of the Department’s recommendations and referrals.

Neither parent appealed the dispositional order.

In June 2019, the parents met with Takyra Jefferson, J.R.’s foster care worker, to discuss the services they needed to complete for J.R. to return to their care. After their meeting, Jefferson sent each parent a letter reiterating these required services and providing contact information for the service providers.

The Department advised both parents to participate in parental support groups and, after completion, work with a parent coach. They had to attend individual therapy sessions, which had been referred in March 2019 when J.R. was placed in foster care. Mother and father also needed to show proof of stable housing and employment and submit to criminal background and child protective services (CPS) checks. After testing positive for marijuana use at a court hearing, both

parents were directed to obtain a substance abuse assessment. Throughout this process, the Department arranged for the parents to have supervised visitation with J.R.

About five months later, Jefferson met with J.R.’s mother, father, and grandmothers.

Neither parent had completed any of the services or attended any support groups, and, although they sporadically attended a few individualized therapy sessions, they missed many without calling to

reschedule. Father submitted proof of employment but did not submit a criminal background check, CPS check, or proof of stable housing. Mother produced proof of employment and CPS check but failed to submit a criminal background check and evidence of stable housing. Neither parent had obtained a substance abuse assessment yet, and they had both failed to attend several scheduled assessments. Mother also incurred criminal assault charges.

At the meeting, Jefferson stressed the importance of timely complying with services and explained that “after a certain amount of months, we have to consider a different goal, if returning

home is not an option, because of noncompliance.” The Department identified June 30, 2020, as the target date for services to be completed.

On December 16, 2019, the JDR court held a permanency planning hearing. The goal remained for J.R. to return home or secure a relative placement. The court ordered the parents to participate in the services required by the Department and obtain a psychological evaluation focused on parenting with Michele Nelson, Ph.D., a licensed clinical psychologist.

Dr. Nelson received the referral on January 27, 2020, but the parents did not appear for the evaluation until May 12, 2020—nearly five months after they had been ordered to do so and after they had missed an April appointment. Based on Dr. Nelson’s recommendations, the Department referred mother to outpatient anger management therapy and father to parent coaching.

On May 20, 2020, in anticipation of a June 15 permanency planning hearing, the Department filed a new foster care plan requesting the JDR court change the goal to adoption, because “at that point [J.R.] had been in care for . . . over a year, and the services that [were] recommended to the parents had not been completed.”

At the time of the June hearing, mother and father had completed only the psychological evaluations, co-parenting counseling, and substance abuse assessments. Mother also completed her motherhood support group. Neither parent, however, completed or regularly attended parent coaching or individualized therapy, despite Jefferson making financial arrangements for reduced

payment. Additionally, father only irregularly attended his fatherhood support group sessions and mother still needed to finish the anger management sessions recommended by Dr. Nelson.

According to Jefferson, the remaining services could take another eight months to a year to complete.

At the hearing, the Department asked the court to give the parents another opportunity to complete services and reinstate the goal of return home or relative placement, despite the May

request to change the goal to adoption. The court denied the request, set a status hearing for July 13, and ordered the Department to file a new foster care plan. The Department filed a new plan with the goal of adoption, and it also filed petitions to terminate mother and father’s parental rights.

The JDR court terminated mother and father’s parental rights under Code § 16.1-283(B) and (C)(2) after a hearing on October 26, and it approved the new goal of adoption. Both parents appealed the termination of their parental rights to circuit court.

On April 2 and 3, 2021, after J.R. had been in foster care for over two years, the circuit court

held a hearing de novo. At that time, mother and father still had not completed all services and father again tested positive for marijuana use. Indeed, some services had not yet been started as of the circuit court hearing.

At trial, the Department presented evidence from several of mother and father’s service providers. Dr. Nelson, the clinical psychologist, testified that she diagnosed mother with

“intermittent explosive disorder” due to her “significant temper outbursts.” Dr. Nelson explained that “individuals with this disorder tend to have low frustration tolerance,” and when “explosive anger [] is at a level that is problematic,” it is harder for a parent “to respond in a calm fashion to

[the child] when [the child] does not meet [] expectations or . . . acts out.” Dr. Nelson testified that mother’s inability “to understand [the child’s] limitations as well as her intermittent explosive disorder and ongoing anger issue . . . would be considered high-risk factors . . . associated with parents who are . . . more likely than others to abuse children.” Further, she testified that mother

“did not see anger as an overall issue for her,” despite the diagnosis, and “had not been working to improve.”

Dr. Nelson described father’s understanding about child development as “not great” but

“coachable” and explained that parent coaching was an important service to teach him how to

“relate well to” and “interact with” J.R.

Jefferson, J.R.’s foster care worker, testified about the services that remained incomplete.

Jefferson noted that she had trouble communicating with both parents and had only “minim[al]” contact with them. Father changed his number several times without informing the Department, and mother was not “able to talk to people on her telephone,” so often the only way the Department

could contact J.R.’s parents was “by sending letters or talk[ing] to the grandparents.” Many of the phone conversations that did occur were “contentious.”

Jefferson also testified that J.R. had been residing with the same family throughout his two years in foster care. She described J.R. as a “healthy, thriving little boy” in his foster family’s care.

Tiffany James, a licensed professional counselor, provided co-parenting and nurturing

counseling to mother and father. James testified that although the parents completed the co-parenting and nurturing counseling, it took them “about a year to do eight to twelve weekly sessions.” Both parents were inconsistent in meeting with her. They missed appointments without calling ahead “about 30 percent of the time,” but when they did participate, “they participated very well.”

Robert Perkins, a fatherhood facilitator, testified about father’s incomplete participation in the fatherhood support group. Due to the COVID-19 pandemic, the 12-hour program was conducted virtually through one-hour classes twice per week. Perkins testified his first contact with father was in May 2020, despite father’s referral to the program in February 2019. Father finished only four of the 12 required course hours. When Perkins stressed to father that he needed to complete the course by the end of June 2020 because the program was losing its funding, father initially agreed to do so; however, Perkins had no contact with father after the first week of June.

During the four sessions he attended father was not responsive, and Perkins “didn’t think [father] was interested [in] complet[ing] the classes.”

The Department also presented evidence from the National Counseling Group, which provided therapy, parent coaching, and supervised visitation services to mother and father. Amber

Jennings, mother’s anger management therapist, testified that when mother started therapy in August 2020, she “did really well” and “attended every week.” Mother’s attendance declined, however, and she missed five consecutive sessions, not meeting with Jennings again until October

19. Mother’s attendance never improved, despite Jennings offering virtual options. Jennings finally discharged mother from therapy in February 2021 due to noncompliance.

Blair Gardner, a mental health counselor, provided parent coaching to mother. From August to October 2020, mother made “no progress” and participated only minimally. Mother was initially reluctant to let Gardner attend visitation with J.R. and offer advice, but she ultimately allowed it.

Although mother did not complete coaching, Blair observed that her “communication ha[d] improved greatly” and she interacted with J.R. “very well.”

Eric Carlson, who supervised mother and father’s visitation with J.R., testified that from

May 2019 to March 2021, the parents were scheduled to visit with J.R. 65 times. Of the 65 visits, mother missed 13, providing notice only twice, and was late 17 times. Father missed seven visits, providing notice only twice, and was late 23 times.

Carlson testified concerning behavior he observed during visitation. During a July 2020 visit, J.R. arrived crying and upset, but mother made no effort to console him, appearing

“withdraw[n]” and “standoffish.” In August 2020, J.R. again arrived crying. Mother and father responded poorly, appearing “frustrated.” Mother used profanity and an “angry [and] agitated tone of voice” in front of J.R. who “was upset and appeared distressed.”

Finally, several witnesses testified that mother and father had challenges maintaining stable housing.

At the close of the Department’s case, mother moved to strike. The court expressed skepticism about the sufficiency of the evidence to support terminating parental rights and stated that “it’s [the Department’s] burden, clear and convincing, that the bruises and fractures—bruises and fractures come in different kind of ways. And you have not documented exactly how it happened or what happened.” When the Department noted that the abuse or neglect dispositional order had not been appealed and was not before the court to be “relitigated,” the court disagreed, stating, “You have to prove, by clear and convincing evidence, that the neglect, abuse, likely condition—you have to prove that serious and substantial threat of his life.”

The court also questioned whether termination was in J.R.’s best interests and noted that

“being with the biological parents is very important to some people. Some people, they spend their

life looking for their biological parents. . . . Kids grow up all the time and they ask for their roots, they ask for their biology.” The court further opined that mother and father had a “relationship”

with J.R. and they were capable of improvement. When the Department referred to the delays and failure to comply with services and argued that it was not in J.R.’s best interests to “languish” in foster care, the court responded, “I think the question is: How long would [J.R.] want to wait to get his parents to have him home?” The court also expressed concern that J.R. would grow up “to hate[] the State” if his parents’ rights were terminated.

The court nevertheless held that the Department had presented a prima facie case and denied the motion to strike.

Mother then testified on her own behalf. She acknowledged her difficulties in maintaining stable housing. She testified that she lived in her mother’s home until the “end of 2020,” when a housefire displaced them. In February 2021, mother told Jefferson and her parent coach that she could not take care of J.R. because she was “all over the place,” did not “have anywhere to stay,” and was “living in various places week to week.” Mother testified that she moved in with a female acquaintance named “Henderson” in March 2021 who had a place for J.R. in her home. Although mother stated that she has known Henderson since she was 12 years old and thinks of her as a grandmother, mother could not provide Henderson’s full name.

Mother acknowledged that she did not comply with services for the first “six, seven months” following removal. According to mother, she delayed because she was taking two classes, “plus [she was] seeing [the child], so it was a lot on [her] plate.” Mother stated that her “communication skills [were] better” and she was “willing to do whatever” the court ordered, or the Department required, so that the child could be returned to her care.

Father called himself and his mother as witnesses. Father previously lived with his mother; however, at the time of trial, he was living with his aunt who had not yet undergone a background check.

Like mother, father also acknowledged that “it took [him] a significant amount of time to even begin to engage in [] services.” Father testified that he delayed because he was 17 years old when J.R. was born, but he had grown up in the years that J.R. was in foster care. Father also claimed that he was not required to finish individual therapy because the Department only

“recommended” that he go, despite the court order to “comply with all services, recommendations, and referrals offered” by the Department. Father also acknowledged testing positive for marijuana and admitted that he had multiple positive tests in the JDR court. Father’s mother testified that she did not know how J.R. sustained his injuries, but she loved J.R. and he could live with her.

At the end of the case, the court ruled that the Department failed to carry its burden under either Code § 16.1-283(B) or (C)(2). The court determined that the Department failed to prove that mother and father were the individuals responsible for causing J.R.’s injuries, which the court

considered to be a prerequisite for termination. The court cited due process concerns and stated, “In this [c]ourt, it matters who did it and when.” It found that the Department was required to present

“more substantial evidence implicating each one of the persons.”

The court also ruled that the Department did not prove that termination was in J.R.’s best

interests. The court referred to J.R. calling mother “mom,” found that there was evidence J.R. and his biological family had a “connection,” and pointed out that the grandmothers had raised “about ten [other] children” without claims of abuse. The court further found that the child’s injuries did not amount to a “death-like situation” and commented that “you’ve got a bruise and you’ve got fractures. And fractures are easy to occur. There are people walking down the street and get fractures or trip up and get fractures. So there’s no explanation of that fracture process.” The court also noted that father took J.R. to the skeletal survey and queried, “[W]ould somebody beat up a kid and then take him to the hospital?”

Five months later, on September 20, 2021, the court entered the final order denying the Department’s petition to terminate mother and father’s parental rights and remanding the case to the JDR court.

The Department moved for reconsideration, and the court held a hearing on October 4, 2021. During the hearing, the Department notified the court that mother had outstanding warrants for maliciously shooting into an occupied vehicle, malicious wounding, and use of a firearm during

the commission of a felony for “events” that occurred in June 2021. At the end of the hearing, the circuit court denied the Department’s motion.^[3] This appeal followed.

ANALYSIS

To terminate parental rights under Code § 16.1-283(B), the Department must prove by clear and convincing evidence that termination is in the child’s best interests and that (1) “[t]he

neglect or abuse suffered by such child presented a serious and substantial threat to his life, health[,] or development,” and (2) “[i]t is not reasonably likely that the conditions which resulted