(Peter
J. Jankell, on brief), for appellant John Ange.
(John Oliver, Deputy City Attorney, on brief), for appellee.
Present: Judges BRAY, ANNUNZIATA and OVERTON.
MEMORANDUM
OPINION FN*
FN*
Pursuant to Code § 17-116.010 this opinion is not designated for
publication.
PER CURIAM.
*1 John
Ange appeals the decision of the circuit court terminating his parental
rights to his daughter. Ange contends that the trial court erred by
failing to consider, or by considering and rejecting, certain specific
members of his family as alternative placements for his daughter as
required under
Code § 16.1-283(A).
Upon reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court.
See Rule 5A:27.
“In
matters of a child's welfare, trial courts are vested with broad
discretion in making the decisions necessary to guard and to foster a
child's best interests.” The trial court's judgment, “when based on
evidence heard
ore tenus, will not be disturbed on appeal
unless plainly wrong or without evidence to support it.”
The
Chesapeake
Department of
Human Services
(the Department) presented evidence that
Ange's
daughter was taken into protective custody in February 1992 when she
was three years old and was found wandering the street unattended.
Further investigation disclosed that the child was staying with her
paternal grandmother, Barbara Williams, in a home that lacked
electricity or water and had blankets and boards on the door and many
of the windows. The child was developmentally delayed, having almost no
intelligible speech nor the ability to use a fork. The child was
diagnosed as suffering from
post-traumatic stress disorder arising from the
neglect she suffered before coming into foster care.
Ange acknowledged that he was unable to care for his
daughter without assistance.
FN2
He contends, however, that the Department failed to fulfill its
statutory obligation to investigate possible placement with his family
members, specifically his mother, Barbara Williams, or two of his
sisters, Tanya Davis and Barbara Tobias.
FN2.
The mother's parental rights also were terminated, and she did not
appeal that ruling.
Any
order terminating residual parental rights shall be accompanied by an
order continuing or granting custody to a local board of public welfare
or social services ... or the granting of custody or guardianship to a
relative or other interested individual. However, in such cases the
court shall give consideration to granting custody to relatives of the
child, including grandparents.
This provision requires that
before the court grants custody of a child, under the
provisions of
Code § 16.1-283(A)
the Department has a duty to produce sufficient evidence so that the
court may properly determine whether there are relatives willing and
suitable to take custody of the child, and to consider such relatives
in comparison to other placement options.
The
evidence produced by the Department at trial demonstrated that it
investigated whether there were any relatives willing and suitable for
possible placement of the child. In fact, the record includes an order
dated February 8, 1995, specifically requiring updated home studies of
Williams and Davis to assist the court in making its custody
determination. The Department conducted or attempted home studies,
psychological interviews, and additional evaluations. The court found
that neither the grandmother, Barbara Williams, nor the aunt, Tanya
Davis, offered beneficial alternatives. Among other factors, the
evidence demonstrated that neither Williams nor Davis was willing to
work with the Department.
Williams
had physical custody of the child when she was first brought into
foster care and was found to be partially responsible for the child's
neglect. Williams subsequently refused to tell the Department where she
was living and threatened the child's foster mother.
Davis
failed to safeguard the child prior to her foster care placement,
despite being in a position to protect the child. Davis gave
conflicting information concerning the extent of her relationship with,
and financial reliance upon, her estranged husband. Evidence, including
court records of prior proceedings, demonstrated a history of domestic
abuse between Davis and her estranged husband. Moreover, prior to the
presentation of evidence at the final disposition hearing in November
1996, Davis withdrew her petition for custody, indicating that she no
longer desired custody.
At
the November 1996 hearing, Ange raised for the first time the
possibility of placing the child with his sister, Barbara Tobias. The
record indicates that Ange never disclosed Tobias' whereabouts prior to
the hearing. Ange testified that Tobias became a possible placement
only after Davis withdrew her petition. However, the evidence showed
that in 1987 Tobias abducted her children from their father's custody
and, with the help of Williams, hid them for a period of weeks by
moving them from hotel to hotel.
According
to the testimony of clinical psychologist Dr. Brian Wald, neither
Williams nor Davis had the emotional resources to handle stress caused
by the child's placement with them, or to provide the care needed by
the child. Davis had a negative sense of self and was less sensitive to
the needs of others, in part due to a lack of social maturity. Williams
also was socially immature, was focused on herself, and was emotionally
needy. Neither woman ever acknowledged that the child had been at risk
at the time she was taken into foster care.
The
evidence demonstrated that the child's best interests would not be
served by placement with her paternal relatives. In foster care, the
child had progressed to the point where she no longer needed special
education. When placed in the care of these relatives prior to her
removal, the child was, at a minimum, poorly supervised. The evidence
also showed that the child suffered an emotional and psychological
relapse following her temporary placement in Davis' home in June 1994.
In fact, the child suffered parental alienation syndrome resulting from
Davis' attempts to turn the child against her foster parents. The child
was emotionally fragile. Both Dr. Wald and Raymond McCoy, a licensed
clinical social worker, opined that removing the child from her foster
home could result in her regression and mental decompensation to the
point of
psychosis.
*3 While
social worker Valerie Rowles found Davis' home to be appropriate for
the child's placement, Rowles acknowledged that she did not know the
extent of the domestic abuse Davis had suffered at the hands of her
estranged husband. The trial court was entitled to weigh Rowles'
recommendations in light of the other evidence presented at the hearing.
The trial court found that the Department had proven,
by clear and convincing evidence, the elements of
Code § 16.1-283(C)(1) and (2).
That finding is not plainly wrong and is supported by the evidence. The
evidence also demonstrated conclusively that the Department actively
considered, interviewed, and evaluated possible placement with family
members, as required by
Code § 16.1-283(A). We find no error in the
trial court's decision not to place the child with father's relatives.
Accordingly, the decision of the circuit court is
summarily affirmed.
Va.App.,1998.
Ange v. Chesapeake Dept. of Human Services
Not Reported in S.E.2d, 1998 WL 37190 (Va.App.)
END OF DOCUMENT
