COURT OF APPEALS OF VIRGINIA

Present: Judges AtLee, Causey and Friedman

Argued at Norfolk, Virginia

CY BAILEY, SR.

MEMORANDUM OPINION* BY

v. Record No. 1366-21-1 JUDGE FRANK K. FRIEDMAN

MAY 30, 2023

CITY OF NORFOLK DEPARTMENT 

OF HUMAN SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Mary Jane Hall, Judge

(Romy L. Radin; Radin Law, PLC, on brief), for appellant. 

Appellant submitting on brief.

Heather L. Kelley, Deputy City Attorney (Bernard Pishko, City 

Attorney; Robin L. Tolerton, Guardian ad litem for the minor child; 

Robin L. Tolerton, P.C., on brief), for appellee.

Cy Bailey, Sr. (father) appeals the circuit court’s orders approving the foster care goal of 

adoption/relative placement and terminating his parental rights. Father argues that the circuit court 

violated his due process rights by approving the foster care goal of adoption/relative placement

when the goal of relative placement already had been achieved. Father further contends that the 

circuit court erred by terminating his parental rights under Code § 16.1-283(B) because the City of 

Norfolk Department of Human Services (the Department) “failed to produce any evidence that the 

child had been neglected or abused, much less that said alleged neglect or abuse presented a serious 

and substantial threat to the child’s life, health or development.” Finally, father asserts that the 

circuit court erred by terminating his parental rights under Code § 16.1-283(C)(1) and (C)(2) 

because his “mental illness” was good cause for his failure to plan for the child and to remedy 

* This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
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substantially the conditions that required the child’s continued placement in foster care. We find no 

error and affirm the circuit court’s judgment.

BACKGROUND1

“On appeal from the termination of parental rights, this Court is required to review the 

evidence in the light most favorable to the party prevailing in the circuit court.” Yafi v. Stafford 

Dep’t of Soc. Servs., 69 Va. App. 539, 550-51 (2018) (quoting Thach v. Arlington Cnty. Dep’t of 

Hum. Servs., 63 Va. App. 157, 168 (2014)). Here, the Department was the prevailing party, so 

we review the evidence in the light most favorable to it.

Father and Crystal Arias (mother) are the biological parents to the child who is the 

subject of this appeal.2 Father and mother lived together and had a history of mental illness. 

While pregnant with the child, mother was hospitalized for psychiatric care. After her release, 

mother failed to comply with her medication plan.

One day after the child’s birth in July 2019, the Department received an allegation of 

“physical abuse, threat of harm” to the child due to concerns about the mother’s mental health. 

Initially, the Department established a safety plan and obtained a preliminary protective order to 

ensure that mother had supervised contact with the child. While working with the parents, the 

Department became increasingly concerned that father also was “displaying behaviors that were 

consistent with a decreased mental health.” The Department learned that father was in 

1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing 

relevant portions of the record to resolve the issues father has raised. Evidence and factual 

findings below that are necessary to address the assignments of error are included in this opinion. 

Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we 

unseal only those specific facts, finding them relevant to the decision in this case. The remainder 

of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 

(2017).

2 The City of Norfolk Juvenile and Domestic Relations District Court terminated 

mother’s parental rights, and she did not appeal.
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psychiatric treatment with “community-based services.”3 In addition, the Department learned

that father and mother had a history of domestic violence, which they denied. Despite the 

Department’s efforts to offer them services, the parents resisted the Department’s help.

In September 2019, approximately six weeks after the child’s birth, the Department 

removed the child from the parents’ care and placed him briefly with a maternal relative. Within 

a few days, the relative indicated that she was unable to care for the child “long term,” but the 

relative indicated that an aunt was able to care for the child. On October 11, 2019, custody was 

transferred to that aunt.

4

 Thereafter, the aunt became the child’s foster parent.

On January 31, 2020, the City of Norfolk Juvenile and Domestic Relations District Court 

(JDR court) adjudicated that the child was “at risk of neglect,” and entered a child protective 

order, requiring the parents to have supervised contact and comply with mental health treatment.5 

On April 24, 2020, the JDR court entered a dispositional order, which father did not appeal.

After the child entered foster care, the Department continued to offer services to the 

family. The Department required father to demonstrate “mental health stability,” participate in 

individual therapy, and comply with medication management. The Department referred father to 

reunification services, parenting education classes, substance abuse services, domestic violence 

counseling, and anger management therapy. Impact Mental Health provided father with 

reunification services, including parenting education, housing, therapy, employment, and 

supervised visitation. But father was “not cooperative” with the reunification services. From 

3 Father had “matched the criteria” for schizoaffective disorder, bipolar type, and had 

been diagnosed with antisocial personality disorder and alcohol use disorder.

4 The aunt had already adopted two of mother’s older children.

5 The JDR court previously ordered the parents to participate in parental capacity 

evaluations.
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July 2019 through February 2020, the supervisor at Impact Mental Health noticed a “very steep 

decline” in father’s mental health, as father became less coherent and more aggressive.

The Department had referred father to a psychologist for a parental capacity evaluation. 

Father went to two appointments but refused to participate in the psychological testing.6 

Notwithstanding attempts to reschedule appointments to give father “a second opportunity to 

complete the evaluation,” father failed to cooperate. Thus, the psychologist was unable to offer 

any “diagnostic formations” or opinions on father’s parental capacity.

In addition to its other requirements, the Department required father to “refrain from any 

illegal activity.” Father had an extensive criminal history, including convictions for possession 

of a concealed weapon, possession of a firearm by a convicted felon, possession of burglary 

tools, and several probation revocations. In 2021, father faced another probation revocation 

hearing and had been arrested for failure to appear and violation of a protective order.

The Department also was concerned about father’s housing stability, especially after he 

became homeless while the child was in foster care. The Department had called him to ask for 

an address, and he refused to provide the information.7 He subsequently provided the 

Department with an address, but nobody responded at the house. The Department then received 

a different address in Portsmouth for father.

Throughout its involvement with the family, the Department offered in-person and virtual 

supervised visits to father. He attended some of the visits, but not all, and some visits had to end 

6 Father informed the psychologist that he had been diagnosed with schizoaffective 

disorder and attention deficit hyperactivity disorder and had been taking psychiatric medicine 

since 2016. He also acknowledged “a history of excessive alcohol abuse.”

7 The Department attempted to maintain communication with father, but there were times 

when he did not answer the phone or return phone calls.
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early due to father’s “inappropriate language and behavior.”8In May 2021, after months of 

virtual visits, the Department attempted an in-person visit, and although the child appeared for

the visit, mother and father did not. Father did not explain his absence. In June 2021, the 

Department offered father another virtual visit, which was his last visit. Although the 

Department tried to schedule additional visits, father did not respond to its phone calls or letters.

On June 11, 2021, the JDR court terminated father’s parental rights and approved the 

foster care goal of adoption/relative placement. Father appealed to the circuit court.

On September 29, 2021, the parties appeared before the circuit court for a de novo

hearing on the question of the foster care goals and father’s parental rights. The Department 

presented evidence of father’s mental health history, including two in-patient psychiatric 

hospitalizations in April and July 2021. The Department also presented evidence that the child 

continued to live with his aunt, uncle, and half-siblings. The child had become “very bonded to 

both of his siblings and seeks comfort from them on a daily basis.”

The Department argued that it was in the child’s best interests to terminate father’s 

parental rights and approve the foster care goal of adoption, so that the child’s aunt could adopt 

him. The Department acknowledged that the concurrent goal was relative placement, which had 

been met because the child was living with his aunt. The Department explained, however, that 

the goal was permanency, and relative placement was not a “permanent goal” for the child. The 

Department remained concerned about the child’s safety, as well as the aunt’s safety, considering 

father’s aggression and history of domestic violence. Father and mother had made comments 

“about going to get” the child from the aunt.9 Accordingly, the Department recommended 

adoption and termination of father’s parental rights.

8 Father had verbally threatened others and argued in front of the child.

9 Due to safety concerns, the Department had not shared the child’s address with father.
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Father did not offer any evidence. The child’s guardian ad litem reported that the child 

was in “very good health” and “very happy.” After hearing the parties’ arguments, the circuit 

court found that “there was a serious and substantial threat to this child by reason of the living 

conditions, the untreated mental health conditions, the very unstable situations being realized by 

both the parents, . . . [and] the reasonable likelihood that the conditions could [not] be 

substantially corrected or eliminated.” The circuit court also found that father had, “without 

good cause, failed to maintain continuing contact and to provide for the future of the child.” The 

circuit court expressed “shock[ ]” that father did not respond to the Department and other 

workers who were trying to reunify him with the child. The circuit court further found that 

father had not complied with the Department’s requirements because he did not appear regularly 

for visitation and did not complete the parental capacity evaluation.

On September 29, 2021, the circuit court entered orders approving the foster care goal of 

adoption/relative placement and terminating father’s parental rights to the child under Code 

§ 16.1-283(B), (C)(1), and (C)(2). On October 4, 2021, the circuit court issued a letter questioning

its ruling under Code § 16.1-283(B) and requested that the Department submit “any authority [that] 

supports its position that termination is warranted under Code § 16.1-283(B).” The circuit court 

also provided father with the opportunity to provide authority in support of his position, but he 

did not do so. The Department submitted a brief, arguing that clear and convincing evidence 

supported the termination of father’s parental rights under Code § 16.1-283(B). Father did not file a 

response to the Department’s brief. On October 19, 2021, the circuit court issued a letter opinion 

holding that “termination was properly approved under both Virginia Code § 16.1-283(B) and (C).” 

Father now appeals.
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ANALYSIS

I. Foster care goal of adoption/relative placement

On appeal, father assigned error to the circuit court’s purported violation of his due 

process rights when it approved the foster care goal of adoption/relative placement even though 

the goal of relative placement had been met. In his brief, however, father did not explain how 

the circuit court violated his due process rights or provide any authority addressing his due 

process claim. See Rule 5A:20(e) (requiring the opening brief to include “[t]he standard of 

review and the argument (including principles of law and authorities) relating to each assignment 

of error”). “Failure to adequately brief an assignment of error is considered a waiver.” 

Muhammad v. Commonwealth, 269 Va. 451, 478 (2005). Therefore, we find that father waived 

his due process argument.

Father further argues that the trial court erred by approving the concurrent foster care 

plan goals of adoption and relative placement when the child had already been placed in relative 

foster care. However, if father’s argument is followed to its logical conclusion, a child who has 

been placed with a relative could never be adopted by that relative. As the Department argued 

below and on appeal, this stance would effectively eliminate the possibility of ever achieving 

permanency for a child whose parents were unable to be reunified with that child. We take this 

opportunity to note that relative adoption is both permissible and proper under appropriate 

circumstances. The trial court did not err in approving the foster care goal of adoption here.

II. Termination of parental rights

Father also challenges the circuit court’s orders terminating his parental rights. “On 

review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence, considered the 

statutory requirements, and made its determination based on the child’s best interests.’” Castillo 

v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 558 (2018) (alteration in original) 
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(quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123, 128 (1991)). “Where, as 

here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be 

disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty. 

Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185, 190 (2011) (quoting Martin v. Pittsylvania 

Cnty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)).

The circuit court terminated father’s parental rights under Code § 16.1-283(C)(2), which 

authorizes a court to terminate parental rights if:

The parent or parents, without good cause, have been unwilling or 

unable within a reasonable period of time not to exceed 12 months 

from the date the child was placed in foster care to remedy 

substantially the conditions which led to or required continuation 

of the child’s foster care placement, notwithstanding the 

reasonable and appropriate efforts of social, medical, mental health 

or other rehabilitative agencies to such end.

“[S]ubsection C termination decisions hinge not so much on the magnitude of the problem that 

created the original danger to the child, but on the demonstrated failure of the parent to make 

reasonable changes.” Yafi, 69 Va. App. at 552 (alteration in original) (quoting Toms v. Hanover 

Dep’t of Soc. Servs., 46 Va. App. 257, 271 (2005)).

Father argues that the circuit court erred by terminating his parental rights under Code 

§ 16.1-283(C)(2) because the “overwhelming evidence” of his “mental illness” was “good 

cause” for his inability to remedy substantially the conditions that required the child’s continued 

placement in foster care. This Court previously has held that there is no good cause under Code 

§ 16.1-283(C)(2) when a parent has such a severe “mental deficiency . . . that there is no 

reasonable expectation that such parent will be able within a reasonable period of time befitting 

the child’s best interests to undertake responsibility for the care needed by the child in 

accordance with the child’s age and stage of development.” Richmond Dep’t of Soc. Servs. v. 

L.P., 35 Va. App. 573, 585 (2001). Upon review, we find that this is such a case.
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The Department presented extensive evidence of father’s mental health history. The 

Department became concerned about father’s mental health and his ability to parent the child 

shortly after its involvement with the family. Father had been receiving psychiatric treatment 

with community-based services. He had been diagnosed with schizoaffective disorder, bipolar 

type, antisocial personality disorder, and ADHD, and he was prescribed psychiatric medications. 

Father was not always compliant with his medication, which elevated his symptoms of paranoia 

and delusions.

At the preliminary removal hearing on September 18, 2019, the JDR court ordered father 

to complete a parental capacity evaluation. At subsequent hearings, the JDR court reiterated its 

order for father to complete the parental capacity evaluation and comply with mental health 

treatment. In its foster care plans, the Department stressed the need for father to complete the 

parental capacity evaluation. Despite multiple opportunities to complete the required evaluation, 

father refused to undertake the necessary testing. The circuit court found that father had not 

cooperated with the Department and “the folks who were trying to reunify him with the child.”

“It is clearly not in the best interests of a child to spend a lengthy period of time waiting 

to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.” 

Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296, 322 (2013) (alteration in 

original) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)). 

By the time of the circuit court hearing, the child had been in foster care for two years, and father 

was not in a position to care for him. The circuit court did not err in finding that father, without 

good cause, had failed to remedy substantially the conditions that led to the child’s continued 

placement in foster care and the evidence was sufficient to terminate his parental rights under 

Code § 16.1-283(C)(2).
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“When a trial court’s judgment is made on alternative grounds, we need only consider 

whether any one of the alternatives is sufficient to sustain the judgment of the trial court and, if

we so find, need not address the other grounds.” Kilby v. Culpeper Cnty. Dep’t of Soc. Servs., 55 

Va. App. 106, 108 n.1 (2009); see also Fields v. Dinwiddie Cnty. Dep’t of Soc. Servs., 46 

Va. App. 1, 8 (2005) (the Court affirmed termination of parental rights under one subsection of 

Code § 16.1-283 and did not need to address termination of parental rights pursuant to another 

subsection). Because we find that the circuit court did not err in terminating father’s parental 

rights under Code § 16.1-283(C)(2), we, therefore, do not need to reach the question of whether 

father’s parental rights should also have been terminated under Code § 16.1-283(B) and (C)(1).

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.