COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Petty and Chafin Argued at Lexington, Virginia

JACKLYN D. STANLEY v. Record No. 1189-16-3
BRISTOL DEPARTMENT OF SOCIA L SERVICES MEMORANDUM OP INION * BY JUDGE ROBERT J. HUMPHREYS JASON M. STANLEY MARCH 28, 2017 v. Record No. 1449-16-3
BRISTOL DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Sage B. Johnson, Judge Robert L. Black, Jr. (Jim Williams & Associates Attorneys at La w, LLC, on brief), for appellant Jacklyn D. Stanley. David Eddy (Law Offices of David Eddy Attorney at Law, PLLC, on brief), for appellant Jason M. Stanley. Edward G. Stout (Joshua P. Sutherland, III, Guardian ad litem for the minor children; Holston Legal Group, on briefs), for appell ee.

Jason M. Stanley (“Jason” or “ father”) and Jacklyn D. Stanley ( “Jackie” or “mother”) (collectively the “parents”) consolidated their respective appe als regarding the May 26, 2016 decision of the Circuit Court of t he City of Bristol (the “circ uit court”) to terminate their respective residual parental ri ghts of their two children, name ly a daughter, P.S., and a son, J.Z. The parents assert that the circ uit court erred when it termina ted their respective parental rights because the Bristol Department of Social Services (BDSS) failed to: (1) prove, by clear and

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - convincing evidence, without good c ause, that the parents had b een unwilling or unable within a reasonable period of time not to e xceed twelve months from the date the children were placed in foster care to remedy substanti ally the conditions which led to or required continuation of the children’s foster care placemen t, notwithstanding the reasonabl e and appropriate efforts of social, medical, mental health, o r other rehabilitative agencie s to such end, pursuant to Code § 16.1-283(C)(2); (2) prove, by clear and convincing evidence, that it is in the be st interests of both children that their respectiv e parental rights be terminat ed pursuant to Code § 16.1-283 1 ; and (3) meet its burden to show t hat no reasonable alternatives existed to termination. “When reviewing a termination of aparent’s resi dual parental r ights, it would be unfitting to not acknowledge that ‘[t]he t ermination of parental rights i s a grave, drastic and irreversible action.’” Farrell v. Warren Cty. Dep’t of Soc. Servs., 59 Va. App. 375, 400, 719 S.E.2d 329, 341 (2012) (quoting Helen W. v. Fairfa x Cty. Dep’t of Human Dev., 1 2 Va. App. 877, 883, 407 S.E.2d 25, 28-29 (1991)). For such cas es, this Court presumes that the circuit court “thoroughly weighed all the evidence, consider ed the statutory requirements , and made its determination based on the child’s best interes ts.” Fields v. Dinwiddie Cty. Dep’t of Soc. Servs., 46 Va. App. 1, 7, 614 S.E.2d 656, 659 (2005) (quoting F arley v. Farley, 9 V a. App. 326, 329, 387 S.E.2d 794, 796 (1990)). Furthermore, “the ev idence is viewed in the light most favorable to the prevailing party below and its evidence is a fforded all reas onable inferen ces fairly deducible therefrom.” Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123, 128 , 409 S.E.2d 460, 463 (1991). The circuit court has “broad di scretion in making the decisions necessary to guard and to foster a child’s best interests.” Farley, 9 Va. App. at 328, 387 S.E.2d at 795. Therefore, in a case

1 Father lengthened his assignment of error to state that it was not possible to remedy the conditions which led to or requi red continuationof the childre n’s foster care placement since he was not the cause of those condi tions or living in the home whe n the conditions occurred and the mother was making substantial progress for the duration the chi ldren were in foster care pursuant to Thach v. Arlington Cty. D ep’t of Human Servs. , 63 Va. App. 157, 754 S.E.2d 922 (2014).- 3 - involving termination of parental r ights, the circuit court’s j udgment, “when based on evidence heard ore tenus , will not be disturbed on appeal unless plainly wrong or witho ut evidence to support it.” Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 324, 785 S.E.2d 231, 235 (2016) (quoting Fields, 46 Va. App. at 7, 614 S.E.2d at 659 ). Thus, this Court will not reverse the circuit court’s j udgment terminating the mother’s a nd the father’s parental rights unless the evidence, viewed in the light most favorable to BDSS , was insufficient to support it. Code § 16.1-283(C) states in pertinent part: The residual parental rights of a parent or parents of a child placed in foster care as a result of c ourt commitment, an entrustment agreement entered into by the pa rent or parents or other volunt ary relinquishment by the parent or pa rents may be terminated if th e court finds, based upon clear and c onvincing evidence, that it is in the best interests of the child and that: 1. The parent or parents have , without good cause, failed to maintain continuing contact wit h and to provide or substantiall y plan for the future of the ch ild for a period of six months aft er the child’s placement in foster care notwithstanding the reasonable and appropriate efforts of social, m edical, mental health or other rehabilitative agencies to communicate with the parent or paren ts and to strengthen the parent- child relationship . . . ; or 2. The parent or parents, without good cause, have been unwill ing or unable within a reasonable period of time not to exceed 12 months from the date the chil d was placed in foster care to rem edy substantially the condi tions which led to or required continuat ion of the child’s foster care p lacement, notwithstanding the reasonable and appropriate efforts of social, medical, mental h ealth or other rehabilitative agencie s to such end. Proof that the pa rent or parents, without good cause, have f ailed or been unable to make substantial progress towards el imination of the conditions whic h led to or required continuation of the child’s foster care plac ement in accordance with their obliga tions under and within the time limits or goals set forth in a fos ter care plan filed with the court or any other plan jointly designe d and agreed to by the parent or parents and a public or private social, medical, mental health or other rehabilitative agency sha ll constitute prima facie eviden ce of this condition. The court shall take into consideration the pri or efforts of such agencies to reh abilitate the parent or parents prior to the placement of the child in foster care.- 4 - Pursuant to Code § 16.1-283(C) the “ trial judge must make two s eparate inquiries in order to terminate parental ri ghts.” Richmond Dep’t of Soc. Se rvs. v. Crawley, 47 Va. App. 572, 579, 625 S.E.2d 670, 673 (2006). The court must find that BDSS has “met its burden of proving, by clear and convincing evidence: (1) that termin ation is in the best interests of the child; and (2) that the parent has not maintained a relationship with the child or remedied the conditions that led to foster care placement. ” Bristol Dep’t of Soc. Serv s. v. Welch, 64 Va. App. 34, 46, 764 S.E.2d 284, 290 (2014). “This statutory scheme is designed to protect the rights for the parents and their child and mus t be strictly followed before th e courts are permitted to sever the natural bond between parent and chi ld.” Thach v. Arlington Cty . Dep’t of Human Services, 63 Va. App. 157, 169, 754 S.E.2d 922, 928 (2014) (quoting Layne v. Layne, 61 Va. App. 32, 36-37, 733 S.E.2d 139, 140 (2012)). Because the appellants’ first and second assignments of error simply separate the two-pr ong test that is required by Code § 1 6.1-283(C), we will consider those assignments of error together. “The first prong of [Code § 16.1-283 (C)] is to determine the ch ild’s best interests.” Id. “[T]here is no simple, mechanical , ‘cut and dried’ way” to appl y the best interests of the child standard. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Instead, “the question must be resolved . . . in light of the facts of each c ase.” Welch, 64 Va. App. at 48, 764 S.E.2d at 291. In determining what is in the bestinterests of the child, the circuit court must evaluate and consider many factors: the age and physical and mental condition of the child; the age and physica l and mental condition of the parent; the relationship existing between the parent and the child; the needs of the child; the r ole the parent has played, and will play in the future, in the upbr inging and care of the child; and any other such factors that are nece ssary. Thach, 63 Va. App. at 169, 754 S.E.2d at 928.- 5 - In this case, the mother argues that the circuit court limited its analysis of the children’s best interest to the “special needs” of “the children and the m other’s inability to meet those needs.” The mother believes the circuit court erred because it was impressed with the testimony of Dr. Erin Jurich-Finney (“Dr. J urich-Finney), a clinical psyc hologist, regarding J.Z. and neglected to provide any analysis with respect to the remaining factors. The mother argues that in reviewing all of the enumera ted factors, the evidence introd uced at trial was insufficient as a matter of law to prove by clear a nd convincing evidence that te rmination was in the best interest of each child. The mother solely highlights th e evidence most favorable to her cause. First, she points to statements made by Linda Comer (“Comer”), a licensed profess ional counselor. Comer testified as an expert in parenta l counselling and stated that the visits between the mother and her children went well and any small issues were handled appropriat ely. Additionally, during visits, Comer did not have any concerns a bout the mother managing the c hildren. Next, the mother points to the notes of Dr. Wayne L anthorn (“Dr. Lanthorn”), a c linical psychologist. Specifically, the mother highlight s that Dr. Lanthorn wrote, “i n the examiner’s opinion, no strong clinical evidence was f ound that would lead to discourag ing the [circuit c]ourt or the [BDSS] from not retuning her tw o younger children to her care.” However, the mother completely i gnores Dr. Jurich-Finney’s test imony. First, Dr. Jurich-Finney testified that th e mother’s attendance at the family therapy meetings was sporadic. Then, after the mothe r gave birth to another child n ot involved in this case, J.Z. was not happy and the mother was less regular in coming to the appo intments. Dr. Jurich-Finney stated that the mother’s demea nor and appearance were different each time. Sometimes she was well dressed, fully present, a nd able to connect. On other day s, she seemed lost. Specifically, Dr. Jurich-Finney testified that the mother had difficulty rein forcing boundaries in an appropriate- 6 - way so that J.Z. could see that there were rules and they had t o be followed. Dr. Jurich-Finney characterized the relationship a s sometimes being parent-child, but “on her less together days it was more like a sibling relations hip.” Finally, Dr. Jurich-Finney expressed that J.Z.’s individual therapy was being derailed by the family therapy. The mother’s last visit was on August 26, 2015. As a result of these problem s, Dr. Jurich-Finney recomme nded that the visits cease in October 2015. Dr. Jurich-Finney be lieved that J.Z. desperatelyneeded permanency in his life, and stability to deal with his meltdowns and his diagnosis of A DHD. Meanwhile, the father argues that he was not there and pursuantto Thach his rights should not have been terminate d. However, his reliance on Thac h is misplaced. In Thach, the mother was found to have neglected the child because she abused substances. Mendoza, the father, was unaware of the situ ation and the Arlington County D epartment of Human Services delayed offering Mendoza services . The reason this Court found in favor of Mendoza was because “[a]t the time of the c ircuit court’s judgment, the rec ord is clear that Mendoza had completed, or was participating in, the services recommended by DHS, he was providing a satisfactory home for [the] younge r brother, and the neglectful parent had been removed from the equation.” Thach, 63 Va. App. at 173, 754 S.E.2d at 930. Here , the father was completely absent for over a year, only s howing up when the circuit court hearing was scheduled. The circuit court re lied on Crawley when it made its determinat ion regarding the children’s best interest. Craw ley states that, “[i]n each subs ection of [Code § 16.1-283], the child’s best interest is the t hreshold test. . . . Thus, we hav e held that, when considering a termination of parental rights, the child’s best interest is th e paramount concern.” Crawley, 47 Va. App. at 579, 625 S.E.2d at 673. In its May 26, 2016 opinio n letter, the circuit court discussed the mother’s inabil ity to meet the children’s special needs and the children’s necessity for permanency, particularly c ritical to J.Z. The circuit cour t was- 7 - particularly impressed by the t estimony of Dr. Erin Jurich-Finn ey, who had been working with [J.Z.] since June, 2014. She testifi ed to [J.Z.’s] needs, the mother’s inability to meet those needs, and the necessity for permanency par ticularly critica l to [J.Z.]. While all children thrive wi th permanency, it was quite clear to the [circuit c]ourt that it was a pa rticularly relevant factor as i t related to both [children], because of the ir special needs. Therefore, the [circuit c]ourt finds, based upon t he facts and evidence presen ted, that the mother has not “substa ntially remedied the conditions” that led to the emergency removal and that the “best interests” of t he children require termination of the residual parental rights of the mother.
Given that the best interests of the child analysis is highly f act-sensitive and discretionary, overturning the cir cuit court’s decision in this case would necessarily require this Court to improperly substitute its judgment for that of the cir cuit court. See Simmons v. Simmons, 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986). “The re simply is no bright line standard that this Court can appl y to conclude that as a matter of law, the circuit court erred in determining that termination w as not in the best interests of the child. Instead, we must presume that the circuit court made its determination based on the best interests of the child.” Welch, 64 Va. App. at 49, 764 S.E.2d at 292. Here, because the circuit c ourt relied on appropriate factors and pointed to some evidence supporting its decision, we hold t hat the circuit court’s best interests’ determination was not plainly wrong or without evide nce to support it. Regarding the second inquiry that a circuit court must make in order to terminate parental rights, that the parent has not m aintained a relationship with the child or remedied the conditions that led to foster care placemen t, the circuit court based its decision to terminate the mother’s parental rights to J.Z. an d P.S. on Code § 16.1-283(C)(2). The statute contemplates that efforts to resolve the “conditions” rele vant to termination are constra ined by time. Roanoke City Dep’t of Soc. Servs. v. Heide, 35 Va. App. 328, 336, 754 S.E.2d 890, 894 (2001). “[The] twelve-month time limit was desi gned to prevent an indeterminat e state of foster care drift and to encourage timeliness by the courts and social services in addre ssing the circumstances that- 8 - resulted in the foster care placement.” Thach, 63 Va. App. at 171, 754 S.E.2d at 929 (quoting L.G. v. Amherst Cnty. Dep ’t Soc. Servs., 41 Va. App 51, 56, 581 S.E.2d 886, 889-90 (2003)). The mother argues that the twe lve-month period for which Code 1 6.1-283(C)(2) describes ended on December 11, 2014 because BDSS removed the c hildren from her custody on December 11, 2013 and placed them into foster care. According to the mother, she had substantially remedied the condi tions that led to the children’ s placement in foster care by December 11, 2014 and the circuit court improperly limited its consideration of evidence to the time period between Decembe r 2013 and June 2015 during the Marc h 7, 2016 parental termination hearing. The mother contends the circuit court fai led to consider the new situation as of the hearing date: (1) that she now had a home with her boyf riend, Mark Brent (“Brent”), and he was willing to allow J.Z. and P .S. to reside with them; (2) Brent had all the necessary furniture for the children to r eside in the home; (3) the paran oia she displayed directly after the birth of her youngest daughter in J une 2015 was pretty much gon e; and (4) she stressed that as of the hearing date she was bac k to taking her medication. Howeve r, there is no evidence other than her testimony that any of these new factors existed. Addi tionally, the record reflects that the mother had previously told a BD SS employee that Brent was menta lly abusive to her, he was an alcoholic, made fun of her menta l disability, and that it had o nly gotten worse since her youngest daughter was born. We note that “[t]he fundamental liberty interest of natural par ents in the care, custody and management of their children does not evaporate simply because they have not been model parents or have lost tempor ary custody . . . to the State.” Cr awley, 47 Va. App. at 581, 625 S.E.2d at 674 (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1 982)). “If there is reason to believe that positive, nurturing parent-child relationships exi st, the [state’s] parens patriae interest favors preservation, not severance, of natural familia l bonds.” Thach, 63 Va. App. at- 9 - 173, 754 S.E.2d at 930. “[T]he factfinder may consider evidenc e before or after the twelve-month time period in order to evaluate the present best interest of the child.” Id. at 171, 754 S.E.2d at 929. “The circuit co urt may discount the parent’ s current progress if the best interests of the child woul d be served by termination, or it ma y determine that a parent’s delayed, but nonetheless substantial, progress may overcome the time del ay.” Id. Here, the circuit court found by c lear and convincing evidence that the mother has a significant mental health impairm ent, which “requires stable an d constant medication.” It acknowledged that during short pe riods of time from the emergen cy removal on December 11, 2013 until June 2015, the mother was relatively stable. Howeve r, the circuit court found that it was clear the mother had failed t o stabilize either her mental health condition or living arrangements to the point thatit would not be in the children’ s best interests to return home. The mother was provided more than the time required by Code § 16.1- 283(C)(2) to remedy substantially her situation. Becau se the circuit court relied on appropriate factors and pointed to some evidence supporting its deci sion, we hold that the circuit court’s decision was not plainly wrong or without evidence to support it. The circuit court based its deci sion to terminate the father’s parental rights to J.Z. and P.S. on Code § 16.1-283(C)(1). Howev er, the father assigned error to a finding t hat the circuit court erred in terminating hi s rights based on Code § 16.1-283( C)(2). Recently, our Supreme Court highlighted the importanc e of an appellant’s framing of i ts assignment of error. An assignment of error is not a m ere procedural hurdle an appellant must clear in order to proceed with the merits of an appeal. Assignments of error are the core of the appeal. With the assignment of error, an appell ant should “lay his finger” on th e alleged misjudgment of the c ourt below. Martin P. Burks, Common Law and Statutory Plead ing and Practice § 425, at 827 (T. Munford Boyd ed., 4th ed. 1952). A properly aimed assignment of error must “point out” the target ed error and not simply take “a shot into the fl ock” of issues that cluster arou nd the litigation. Plant Lipford, Inc. v. E.W. Gates & Son Co

. , 141 Va.- 10 - 325, 332, 127 S.E. 183, 185 (1925) (citations omitted). “An assignment of errors is in the nature of a pleading, and in the court of last resort it pe rforms the same office as a declaration or complaint in a court of origi nal jurisdiction.” Puckett v. Commonwealth, 134 Va. 574, 579, 113 S.E. 853, 854 (1922) (citation omitted). Like a well- crafted pleading, assignments of error set analytical boundaries for the arguments on appeal, provide a contextual backdr op for our ultimate ruling, and dema rk the stare decisis border between holdings and dicta. Forest Lakes Cmty. Ass’n v. Un ited Land Corp. of Am., ___ Va. _ __, ___, 795 S.E.2d 875, ___ (2017). Additionally, “[i]t is w ell-settled that a party who c hallenges the ruling of a lower court must on appeal assign error to eac h articulated basis for that ruling.” Ferguson v. Stokes, 287 Va. 446, 452, 756 S.E.2d 455, 458 (2014) (quoting Manchester Oa ks Homeowners Ass’n v. Batt, 284 Va. 409, 421, 732 S.E.2d 690, 698 (2012)). Thus, because t he father failed t o assign error to the legal basis for the ruling of the lower court, this Court c annot review the matter and the father’s argument is waived. See id. Yet, assuming without deciding th at father had properly assigne d error, there is clear and convincing evidence in the reco rd to support the finding of the circuit court that the father, without good cause, failed to maint ain continuing contact with and to provide or substantially plan for the future of the ch ild for a period of six months aft er the child’s placement in foster care, notwithstanding the reasonable and appropriate efforts of the agencies. The children were removed from the mother’s care December 11, 2013. The father w as found and contacted in January 2014. The father was incl uded on the foster care plans and met with the children from January 2014 until September 2014. However, after September 5, 2014, the father did not maintain contact with the childre n or the agency. He never vis ited for over a year. The record disclosed that there were ample services offered and available to the father, but he chose not to take advantage of them. “The l aw does not requi re the division to force its services upon an unwilling or disinterested parent .” Barkey v. Commonwealth, Al exandria Dep’t of Human- 11 - Servs., 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986). There fore, we hold that the circuit court did not err in terminating th e father’s rights pursuant t o Code § 16.1-283(C)(1). Finally, the parents argue that the circuit court erred because BDSS failed to meet its burden to show that no reasonable al ternatives existed to termi nation, especially relative placement. Specifically, the parents argue that each of the gr andmothers had previously petitioned for custody of the c hildren and that BDSS did not pr ovide any evidence with respect to an alternative placement except to say that the grandmothers had filed petitions which were later withdrawn. Code § 16.1-283(A) provides, in pertin ent part, that before ter minating parental rights, “the court shall give a consi deration to granting custody to re latives of the child, including grandparents.” “We have interpr eted this provision to require DSS to consider all ‘reasonable options for placement with immediate relatives’ as a prerequisi te to a parental termination decision.” Bagley v. City of Ric hmond Dep’t of Soc. Servs., 59 Va. App. 522, 524, 721 S.E.2d 21, 22 (2012) (quoting Hawthorne v. Smyth Cnty. Dep’t of Soc. S ervs., 33 Va. App. 130, 136, 531 S.E.2d 639, 642 (2000)). However, c onsidering all reasonab le options for placement with immediate relatives does not c reate an affirmative duty on BDSS to investigate the home of every relative of the childre n, however remote, as a potential placement.” Sauer v. Franklin Cty. Dep’t of Soc. Servs., 18 Va. App. 769, 771, 446 S.E.2d 640, 642 (1994). We conclude that while the circ uit court did not address this i ssue explicitly i n its order, it clearly implicitly gave sufficien t consideration to granting cu stody to relatives of the child. First, the record reflects that BDSS sent out a relatives search inqui ry and not one person responded. Additionally, the circuit court st ated that the mother’s mother “was not an appropriate placement because she hasn’t gone through the process. She withdrew her petition. And she hasn’t been investigated. She hasn’t been i dentified.” The circuit court further stated that it did not think she- 12 - was an appropriate placement “becau se the Department of Social Services hasn’t gone through that investigative process because [Ms. Jackson] withdrew her p etition for custody.” As such, we hold that the circuit court did not err. Therefore, we affi rm the circuit court’s decision to terminate the respective residua l parental rights of both the f ather and the mother. Affirmed.