                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges AtLee, Malveaux and Senior Judge Annunziata
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              DAVID DUANE DAVIS
                                                                            MEMORANDUM OPINION* BY
              v.      Record No. 2074-16-4                               JUDGE MARY BENNETT MALVEAUX
                                                                                 AUGUST 22, 2017
              STAFFORD COUNTY
               DEPARTMENT OF SOCIAL SERVICES


                                    FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                                 Charles S. Sharp, Judge

                                Gary D. Godman (Law Office of Gary D. Godman, on brief), for
                                appellant.

                                Catherine M. Saller (Jean M. Kelly, Guardian ad litem for the
                                minor children; Law Office of Catherine M. Saller, PC, on brief),
                                for appellee.


                      The Circuit Court of Stafford County (“circuit court”) entered orders terminating the

              residual parental rights of David Duane Davis (“father”) to his three children, pursuant to Code

              § 16.1-283(C)(2). Father argues that the circuit court erred in entering these orders because the

              Stafford County Department of Social Services (“DSS” or “the department”) failed to meet its

              statutory obligation to investigate placing his children with their direct family members. He

              alternatively argues that the evidence did not support the trial court’s finding that terminating his

              parental rights was in his children’s best interests. We disagree with father on both assignments of

              error and, consequently, we affirm.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

        We review the evidence in the light most favorable to DSS, which prevailed below, drawing

all reasonable inferences in its favor. See Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 40,

764 S.E.2d 284, 287 (2014).

        Father and Sarah Swartwood-Davis (“mother”) have three children together. Their

five-year-old twin daughters, A. and E., were born in September 2011. Their four-year-old son,

I., was born in May 2013. Mother also has a nine-year-old son, J., from another relationship.

        Each child has behavioral or medical issues. A. is prone to tantrums and oppositional

behavior. E. suffers from Turner Syndrome, and will need to see specialists throughout her life

to address her medical needs. I., meanwhile, displays more anger and aggression than is typical

in a toddler his age.

        Mother and father separated shortly before I.’s birth. Father testified that he cannot

remember why he and mother originally separated due to a traumatic brain injury that has

impaired his memory.

        Father explained that in June 2012, an angry former employee hit him in the back of the

head with a forty-pound bar, fracturing his skull and causing bleeding inside his brain.

According to father, this injury has impaired his ability to reason. Others have told him that the

injury may cause him to be violent. Father himself acknowledged that he has a “temper,” and

notes from his initial meeting with DSS staff indicate he reported that the injury had caused him

to develop “uncontrolled anger.” He also said the injury “erased” some of his memories.

        Consequently, father could not recall whether he and mother separated due to physical or

verbal abuse. The children resided with mother after the separation.

        In 2012 the Stafford County Child Protective Services (“CPS”) received the first of six

child abuse complaints relating to the children. The basis of this first complaint was that mother

                                                -2-
had hit, kicked, and screamed at J. while at a doctor’s office. In September 2013, while the case

was still open, CPS received another complaint indicating that A. had fallen out of a

second-story window after mother left her and two of her siblings unattended.

       According to Karen Clark, a supervisor at CPS, the agency offered mother a number of

services and referrals; however, the agency saw no improvement in her ability or desire to

provide appropriate care for her children. CPS eventually filed Child in Need of Services

petitions in May 2014 after sheriff’s deputies learned that A. and E. were playing in the street

while mother slept. Clark explained that CPS filed the petition because the agency “needed court

intervention to order services for the family.”

       Nevertheless, CPS continued receiving complaints indicating that the children were being

abused or neglected. In September 2014, someone reported that mother’s boyfriend had spanked

A., who had bruises on her buttocks. In March 2015, CPS learned that both A. and E. had

serious dental issues, including teeth that had decayed to a dangerous degree and abscesses that

had gone untreated for years. And in April 2015, someone called CPS to report that mother was

yelling and screaming at her children, who were living in a home not fit for their habitation.

When CPS responded to this last call, they found that J. was not at home, and mother could not

account for his whereabouts. CPS determined that this call was a founded complaint of abuse

and neglect.

       At CPS’s encouragement, mother temporarily placed her sons in their maternal

grandmother’s care and placed her daughters with their maternal great-grandmother. In May

2015, a judge awarded the grandmother and great-grandmother custody of the children.

       Father testified that he was not living with mother or their children during much of this

period. Nothing in the record suggests that he made an effort to engage with or co-parent the

children after the separation until their guardian ad litem first contacted him about the September

                                                  -3-
2014 incident involving A.’s bruises. He testified that he subsequently began visiting with his

daughters in April—presumably April 2015. He also testified that he began visiting with I. and

J. that June.

        At some point after the children were placed with mother’s relatives, however, father and

mother resumed living together. They married in June 2015.

        In July 2015, the children entered foster care after their maternal grandmother and

great-grandmother began expressing doubts about their ability to continue caring for them. The

Juvenile and Domestic Relations Court of Stafford County (“J&DR court”) entered emergency

removal orders awarding custody of the four children to DSS. In September 2015, DSS filed

foster care service plans for the four children with a specified goal of returning the children to

their parents.

        In March 2016, DSS learned that father had been arrested for assault and battery against

mother. At that point, mother told DSS that the marriage had been a sham, reporting that father

had physically and verbally abused her on several occasions since the previous November. She

told a psychologist during a mental health evaluation that father had given her “countless black

eyes” and had induced two miscarriages through physical abuse.

        Father was incarcerated from that point onward and had no further contact with his

children. He expected to be released in January 2017.

        In July 2016, DSS filed new foster care service plans that amended each child’s

permanency planning goal to adoption. The following month, the J&DR court entered new

permanency planning orders as well as orders terminating father’s residual parental rights to each

of his three children. Father appealed each of these orders to the circuit court.

        In the circuit court, Devonne Johnson, a DSS case worker, testified that DSS searched for

other relatives with whom they might place the children but was unable to find anyone

                                                -4-
appropriate. Referring to their maternal grandmother and great-grandmother, he explained that

DSS did not consider placing the children with relatives as an alternative to adoption because

“[t]he children had been [placed] previously with relatives and that was unsuccessful.” Notes

introduced into evidence indicate that they also spoke with John Davis, father’s cousin, learning

that he works twelve-hour shifts from 3:00 a.m. to 3:00 p.m. at his job driving heavy equipment.

       Father made a motion to strike at the close of DSS’s case-in-chief, arguing both that DSS

had failed to introduce evidence that termination of his parental rights was in his children’s best

interests and that DSS never provided evidence that they considered placement with other

relatives. The court denied the motion.

       After DSS presented its evidence, mother testified that the department had made “several

requests for a list of relatives.” Although she did not know if father provided such a list, she

testified they both had been asked for that information.

       Father also acknowledged that DSS had asked him to provide a list of family members

and testified he told the department about several relatives, including a younger brother with

whom he had relatively no contact during the three preceeding years.1 He claimed at the

termination hearing that DSS never contacted this brother, whom he said had “insinuated that he

would like to help out if he can.” He admitted, however, that when DSS asked about his

relatives, he told them that his younger brother “didn’t know if he could help us or not.”

       When asked if he had provided his brother’s “name, address, and telephone number to the

Department of Social Services,” father answered, “I have not been able to do that.”

       Father renewed his motion to strike at the close of the evidence, arguing only that DSS

failed to meet its burden of proof regarding the children’s best interest. During his closing



       1
        According to father, his other relatives either were deceased or had told him that they
were unwilling to assume custody of his children by the time of the termination hearing.
                                               -5-
argument, he also asked the court to order DSS to consider placing the children with his relatives

before terminating his parental rights.

        The circuit court denied the renewed motion to strike and ruled in DSS’s favor. Finding

both that father had failed to remedy the circumstances that led to his children’s placement in

foster care and that termination of his parental rights was in his children’s best interests, the court

terminated those rights pursuant to Code § 16.1-283(C)(2).2 Father objected to each of these

orders, noting on the termination orders his belief that DSS had failed to carry its burden of proof

under Code § 16.1-283(C).

                                           II. ANALYSIS

                                   A. DSS’s Duty to Investigate

        In his first assignment of error, father argues that the circuit court terminated his rights

prematurely because the evidence did not prove that DSS had investigated placing his children

with his relatives.

        Code § 16.1-283(A) contemplates that every termination order will be accompanied by

an order granting custody of the child to another person or agency. See Hawthorne v. Smyth

Cty. Dep’t of Soc. Servs., 33 Va. App. 130, 137, 531 S.E.2d 639, 643 (2000) (noting that the

statute requires two concurrent orders). Before entering this custody order, “the court shall give

a consideration to granting custody to relatives of the child, including grandparents.” Code




        2
          In the same proceeding, the court terminated mother’s residual parental rights to all four
children. She appealed only the termination order that related to J., however, and is therefore not
a party to this appeal.
                                                -6-
§ 16.1-283(A).3 To facilitate this obligation, “the agency seeking termination has an affirmative

duty to investigate all reasonable options for placement with immediate relatives.” Sauer v.

Franklin Cty. Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 641 (1994). The

agency bears the “burden to show that no reasonable alternatives [for the court to consider]

exist.” Id.

       Usually, the agency must contact a family member through one of its agents to fulfill this

implied statutory duty. In Hawthorne, we concluded that “DSS complied with the statutory

requirements . . . when . . . a foster care worker for DSS, contacted [a relative] . . . to determine

whether [the child] could be placed in [the relative’s] care.” 33 Va. App. at 138-39, 531 S.E.2d

at 643. The agency then presented evidence indicating that the relative had said initially that her

home was too crowded and later agreed to take custody of the child only if the appellant paid

child support. Id. at 139, 531 S.E.2d at 643-44.

       We do not believe DSS violates its duty, however, when the department fails to contact

relatives they cannot reasonably be expected to find. In this case, father and mother both

testified that DSS asked father about his relatives at least once. Father’s testimony establishes

that he told DSS about his younger brother. But when asked if he had provided DSS with the

sibling’s name, address, or telephone number, father admitted that he “ha[d] not been able to do

that.” Viewing his answer in the light most favorable to DSS, we must presume that father never

provided the department with any of that information—not even his brother’s name. And father

has not explained how DSS reasonably could have been expected to locate his brother without

this basic information.

       3
          Whether the court actually awards custody of the child to a relative, however, depends
upon certain required findings of fact. See Code § 16.1-283(A1) (providing that such orders
“shall be entered only upon a finding” of four enumerated facts). The court cannot transfer a
child into her relative’s custody upon termination of her parent’s residual parental rights unless it
expressly finds each of the enumerated facts “based upon a preponderance of the evidence” and
memorializes those findings in its custody order. Id.
                                                -7-
        We conclude that DSS did not fail in its duty to investigate the brother’s suitability as a

custodian for father’s children because they lacked the information they needed to contact him.

                                           B. Best Interests

        Father also argues that the circuit court erred in finding by clear and convincing evidence

that terminating his residual parental rights was in his children’s best interests.4 We disagree.

        This Court traditionally has acknowledged that termination of parental rights “is a ‘grave,

drastic and irreversible action.’” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 44, 764

S.E.2d 284, 289 (2014) (quoting Helen W. v. Fairfax Cty. Dep’t of Human Dev., 12 Va. App. 877,

883, 407 S.E.2d 25, 28-29 (1991)). Nevertheless, we also must “presume that the trial court

‘thoroughly weighed all the evidence, considered the statutory requirements, and made its

determination based on the child’s [or children’s] best interests.’” Farrell v. Warren Cty. Dep’t of

Soc. Servs., 59 Va. App. 375, 400, 719 S.E.2d 329, 341 (2012) (alteration in original) (quoting

Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005)).

Consequently, “[w]here, as here, the court hears the evidence ore tenus, its finding is entitled to the

same weight accorded to a jury verdict, and it will not be disturbed on appeal unless it is plainly

wrong or without evidence to support it.” Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3

Va. App. 15, 20, 348 S.E.2d 13, 16 (1986).

        “This Court has said that ‘there is no simple, mechanical, “cut and dried” way’ to apply

the best interest of the child standard.” Welch, 64 Va. App. at 48, 764 S.E.2d at 291 (quoting

Peble v. Peble, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988)). Rather, the trial court must


        4
         Code § 16.1-283(C)(2), the subsection under which father’s parental rights were
terminated, also requires the court to find that a parent failed to remedy substantially the
conditions that led to his children’s placement in foster care within a period no longer than
twelve months; however, father has not assigned error to that particular finding. Indeed, he
expressly “concede[d] that he was unable to remedy the conditions leading to the children’s
placement in foster care before the twelve-month deadline.” We therefore do not address that
portion of the circuit court’s ruling.
                                                 -8-
determine a child’s best interests after considering a number of factors in light of the specific

facts of the case. See id. Those factors include

                the age and physical and mental condition of the child or children;
                the age and physical and mental condition of the parents; the
                relationship existing between each parent and each child; the needs
                of the child or children; the role which each parent has played, and
                will play in the future, in the upbringing and care of the child or
                children; and such other factors as are necessary in determining the
                best interests of the child or children.

Id. (quoting Harrison v. Tazewell Cty. Dep’t of Soc. Servs., 42 Va. App. 149, 161, 590 S.E.2d

575, 581-82 (2004)).

        Father relies on some of these same factors, arguing on brief that he “had an ongoing,

positive relationship with the children throughout the foster care process before his incarceration.”

But his argument omits many other factors.

        For instance, father does not consider “the physical and mental condition of the . . .

children,” Harrison, 42 Va. App. at 161, 590 S.E.2d at 582, a factor discussed extensively by the

court below. As the circuit court noted, each of father’s three children has special medical or

emotional needs. A. is prone to tantrums and oppositional behavior. E. suffers from an incurable

medical condition that will require significant, life-long treatment. And I. already displays more

anger and aggression than is typical for a child his age.

        Father, meanwhile, admitted having his own mental difficulties stemming from the

traumatic brain injury he suffered in 2012. That injury resulted in some degree of memory loss,

causing him to forget events and people. He testified that others have told him that the injury has

impacted his ability to reason. And he acknowledged that others have said that the injury could

cause violent tendencies. Indeed, he reported during his initial meeting with DSS staff that the

injury caused him “uncontrolled anger.”




                                                  -9-
        And though father may have had a healthy relationship with his children while they were in

foster care until he was incarcerated, he does not address the more limited relationship he had with

them prior to their entering foster care. Father and mother separated little more than a year after

their daughters were born. While father testified that he paid child support to mother, his testimony

also indicates that he had no contact with his children until their guardian ad litem found him to tell

him about abuse A. had suffered. Though each of his children has special medical or developmental

needs, the record indicates that he has not had to address those needs on a daily basis since 2012.

        A rational fact finder easily could have determined that a cognitively impaired parent with

anger management issues and a heightened propensity for violence was unfit to address the unique

special needs of three children with whom he had relatively little interaction over the past four

years. While the court did not expressly consider how every factor applied to father, it did consider

at least some of those factors in light of evidence in the record. “[B]ecause the circuit court relied

on appropriate factors and pointed to . . . evidence supporting its decision, this Court cannot hold

that the circuit court’s best interests determination was ‘plainly wrong’ or ‘without evidence to

support it.’” Welch, 64 Va. App. at 49, 764 S.E.2d at 292 (quoting Martin, 3 Va. App. at 20, 348

S.E.2d at 16).

                                         III. CONCLUSION

        Because DSS’s duty to investigate did not require it to contact relatives it could not

reasonably be expected to find, we conlude that the department met its obligations under Code

§ 16.1-283(A). We also find that the circuit court’s best interests determination under Code

§ 16.1-283(C) was neither plainly wrong nor without evidentiary support. We therefore affirm

the circuit court’s decision terminating father’s residual parental rights.

                                                                                              Affirmed.




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