COURT OF APPEALS OF VIRGINIA
Present: Judges Beal es, Russell and AtLee Argued at Richmond, Virginia

TARSHA GERALD MEMORANDUM OPINION * BY v. Record No. 0918-18-2 JUDGE RICHARD Y. ATLEE, JR. MARCH 19, 2019 CHARLOTTESVILLE DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Melvin R. Hughes, Jr., Judge Designate Steven S. Biss for appellant. Sebastian Waisman 1 ; Anthony Martin, Guardian ad litem for the minor children (Allyson Manson- Davies, Deputy City Attorney; Lepold & Freed, PLLC, on brief), for appellee.

This appeal concerns the Circu it Court of the City of Charlott esville’s finding that Tarsha Gerald’s minor children, L .G.-G., born January 13, 2012, and C. T.-G., born February 14, 2014, were abused or neglected, and its d ecision to award custody of the children to their respective biological fathers. For the f ollowing reasons, we affirm.
I. B ACKGROUND On appeal, we view the evidence in the light most favorable to Charlottesville Department of Social Services (“DSS” or “CDSS”), who prevailed before the circuit court. Surles v. Mayer, 48 Va. App. 146, 156 (2006). So viewed, the e vidence is as follows.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Although not named on brief, Mr. Wai sman, from the Charlottesv ille City Attorney’s Office, argued on behalf of DSS.UNPUBLISHED- 2 - On July 13, 2016, at 4:30 in the a fternoon, the DSS on-call soc ial worker received a report concerning Gerald and her minor children, L.G.-G. and C. T.-G., stating that they were sleeping in a car in front of 104 O ak Street in C harlottesville and that the children had been playing in the street and using an adjacent yard to use the bat hroom. The social worker, accompanied by a patrol officer, responded to the address, and although they found a car matching the description in the r eport, it was unoccupied. The social worker asked the officer to do a “welfare check” later that evening. Shortly after midnigh t, the officer returned and found Gerald asleep in the car with the two minor children. The car was off, the windows were opened slightly, and all three were i n the front seat. The officer kn ocked on the window to wake Gerald. He explained that they were onl y a few blocks from a high crime and drug trafficking area and that she and the children needed a safe place to stay that nigh t. Gerald could not stay at the Oak Street address, where they wer e parked, because Gerald was subj ect to a protective order. Gerald proposed calling her mother, who lived in Waynesboro. She need ed her mother to pick them up because Gerald’s license was s uspended, so she could not drive. While waiting, Gerald spoke with DSS and told them she woul d be staying at her mother’s hom e at 1709 Main Street in Waynesboro. An hour later, her mo ther arrived and took Gerald and the children to her residence. Two DSS workers, Christine Self and Morgan Minor, were assigned to the matter to provide foster care prevention a ssistance, the most pressing is sue being assisting with obtaining safe housing for Gerald and the children. Self had worked on D SS matters involving Gerald in the past. On July 14, 2016, Minor rev iewed the verbal safety p lan Gerald had made the previous night. She learned that a violent sex offender was registered at the Waynesboro address, making it an unsuitable place for the children to stay. Minor immedia tely contacted Gerald, and Gerald agreed to meet with DSS that da y. At that meeting, Gerald expl ained that the Waynesboro- 3 - address was her brother’s addr ess, although her mother also liv ed there. She sai d the individual who was registered as a sex offende r was in a relationship with her mother. She explained that she was aware of his status and ne ver left the children alone w ith him. When asked for alternative opti ons for where she could stay wit h her children, Gerald could not offer one stable place. Instead, she offered a varie ty of locations where they could stay intermittently, including the Waynesboro address (which DSS dee med unacceptable), the Red Roof Inn, or her cousin’s house; how ever, her cousin could only host guests for two weeks at a time as a condition of her receiving public assistance. Minor suggested a safety plan where each child stayed with his or her bi ological father (Gerald had, in fact, left C.T.-G. with his father during this meeting). Gerald refused because she said the fath ers lived with their families and sold drugs. Gerald insisted on speaking wit h Self. After discussing option s with Gerald, Self arranged for Gerald and the two m inor children to stay at the S alvation Army shelter, the only overnight shelter available. D SS created a mutually-agreed-upo n safety plan which Gerald signed. This safety plan expressl y stated that Gerald agreed t o “remain/reside at the Salvation Army with the . . . children until housing approved by DSS is s ecured.” The signed, written document also warned that “failu re to comply with these require ments could result in the need for CDSS to remove the child(ren) from my care or custody or se ek other appropriate action from the [c]ourt.” Gerald did not follow the safet y plan. A case manager from the Salvation Army, Alexandra Orton, testified that Ge rald checked into the shelter on July 14, 2016, but was not there at 6:30 a.m. on July 15, 2016, when Orton tried to meet w ith her, review shelter rules, and open her case to services. In f act, Gerald did not return to t he shelter for over an entire weekend, from July 15, 2016 to July 18, 2016.- 4 - When Self and Minor returned to work on Monday, July 18, 2016, they learned that Gerald and the children had not s tayed at the Salvation Army sh elter as agreed. They, along with other DSS workers, went to the va rious addresses Gerald had pro vided as options for where she could stay (but that DSS had f ound unsuitable for various reaso ns). They found Gerald at her cousin’s house and determined that the children were inside. G erald was in the driveway but would not let the DSS workers s ee the children or go inside the residence. Over the course of thirty minutes, Gerald and her c ousin were “adamant” that DSS d id not need to enter the home, and they continued to refuse t o let DSS see the children or ent er the house. Minor testified that Gerald made threats and was emphatic that she would not work wi th child protective services. Because of the hostile environment and concern for the safety o f both the children and the workers, DSS requested police a ssistance. After the police arr ived, the situation continued for nearly an hour, with Gerald c ontinuing to hold her ground and r efuse access to the house or the children. Minor contacted her s upervisor, Nicole Shipp. Shipp testified that she performed a safety assessment on Gerald and he r children to determine if re moval was appropriate. Gerald and her family had a history of “noncompliance . . . as far as formal systems go, CPS, courts, law enforcement,” which factored i nto how the situation was handled . In light of the immediate escalating circumstances, and i n addition to other factors such as Gerald’s extensive history with DSS, Shipp determined that rem oval was necessary and executed e mergency removal of the children on the grounds that the ch ildren were in danger of imm inent threat to their life or health. On September 14, 2016, the Charlott esville Juvenile and Domesti c Relations District Court (“J&DR” court) entered dispositional orders finding the c hildren were at risk of abuse or neglect and giving cus tody of the children t o their respective fathers. 2 Gerald appealed to the

2 Prior to this, the J&DR court had already timely conducted the emergency and preliminary removal hearings and m ade the requisite findings. See Farrell v. Warren Cty. Dep’t- 5 - circuit court, which heard additi onal evidence regarding Gerald ’s circumstances and behavior since the J&DR disposition, as we ll as how the children were fa ring under the care of their fathers. After closing argumen ts, the circuit court took the m atter under advisement for further review. It ultimately concluded t here was sufficient evidence of abuse and neglect and ordered that the children remain in the c ustody of their fathers. In i ts orders, the circuit court expressly found that for each child, 1. Since the Child was removed, there have been numerous attempts on the part of service pr oviders to assist [Gerald], including, but not limited to, s upervised visitation, safety pl ans, and housing inspections. 2. Communication between [Gerald] and CDSS has been extremely tense and she has been c onsistently resistant to serv ices. 3. [Gerald] has staunchly objecte d to the removal of the Child from her custody. 4. [Gerald] has displayed a c ontinuing pattern of unstable and uncertain housing accommodations since the Child’s removal. 5. At the December 1, 2017 hearing [Gerald] had been evicted from her most recent residence and was residing at the Oak Stre et address temporarily with freque nt stays in Richmond, Virginia. 6. [Gerald’s] witness, Mr. Ben jamin Camp, described her in a state of “transition” which the Court finds is an apt descripti on of her pattern of continued, unstable, uncertain housing accommodations for her Child. Relying on these findings, the c ircuit court found sufficient e vidence of abuse or neglect and, agreeing with the recommendation of the Guardian ad litem , ruled that the children should remain in the custody of their res pective biological fathers. Gerald timely filed this appeal.

of Soc. Servs., 59 Va. App. 342, 345-46 (2012) (describing, in detail, the process leading from an emergency removal to the circuit court’s review, the timing of that process, and the necessary factual determinations).- 6 - II. ANALYSIS Gerald argues that the circuitcourt erred in se veral respects . First, she argues that the petitions for emergency removal failed to comply with Code § 16 .1-251 because the removal took place over four hours before DSS obtained a court order an d the affidavit or sworn testimony before the court faile d to state the reasons for that delay. Second, she argues that the removal and custody orders were not supported by sufficient evi dence. Third, she argues that the circuit court erred because it failed to make the requisite fin dings under Code § 16.1-278.2(A1) in order to transfer custody to arelative or i nterested party. Finally, she argues she should have received attorneys’ fees. These arguments all lack merit, and we affirm for the following

reasons. A. Timing of Emergency Removals Gerald first argues that the eme rgency removal orders violated Code § 16.1-251(A)(2) because there was no explanation provided for the failure to ob tain an emergency removal order within four hours of taking c ustody of the children. Code § 16 .1-251(A)(2) states as follows: “If the petitioner fails to obtain an e mergency removal order withi n four hours of taking custody of the child, the affidavit or swo rn testimony before the judge or intake officer shall state the reasons therefor.” This Code provision applies to eme rgency removals orders, which are issued by J&DR courts. As such, although she argue s that the “Circuit Court e rred,” Gerald’s first argument solely concerns the actions of t he J&DR court, over which this Court has no jurisdiction. See Code § 17.1-405 (explaining, inter alia , the appellate jurisdiction of the Court of Appeals in custody cases); Code § 16.1-296 (setting out the circuit court’s appellate jurisdiction over fi nal orders or judgments of a J&DR c ourt). Neither the emergency re moval orders, nor any- 7 - equivalent orders, were before t he circuit court. Accordingly, this Court lacks jurisdiction to address this assigned error. B. Sufficiency of the Evidence Gerald challenges the sufficien cy of the evidence supporting th e petitions for emergency removal and preliminary removal, a s well as the dispositional o rders. 3 Specifically, she argues the evidence did not show (a) that Gerald abused or neglecte d her Children, (b) that the Gerald Children were subject to a n “imminent threat to life or health to the extent that sever e or irremediable injury would b e likely to result” if the Childre n were left in the custody of G erald; and/or (c) that reasonable efforts had been made to prevent removal of the Gerald Children f rom their home and there were n o alternatives less drastic than removal. In order for a J&DR court to ent er emergency and preliminary re moval orders, DSS must prove, by a preponderance of the evi dence, “1) imminent threat of injury or irremediable harm; 2) [that DSS made] reasonable e fforts to prevent removal from t he home; and 3) [that] no less drastic alternative than remova l exists.” Farrell v. Warren Ct y. Dep’t of Soc. Servs., 59 Va. App.

3 As a threshold matter, Gerald’ s assignments of error challenge orders from the J&DR, not circuit, court. Gerald’s s econd assignment of error argues “[t]he Circuit Court erred when it granted Charlottesvill e DSS’[s] petitions for emergency removal and preliminary removal pursuant to § 16.1-251 (A) and § 16.1-252 of the Code . . . .” Her third assignment of error argues that the “[t]he Circuit Court erred when it made its Dis positional Orders pursuant to § 16.1-278.2 of the Code.” (She also fails to include in this third assignment of error any citation to the record as to where thi s objection was preserved, see Rul e 5A:20(c).) Although Gerald states that the pet itions for emergency removal , preliminary removal, and the dispositional orders were entered by the circuit court, these arguments solely address actions of the J&DR court. Not onl y were the orders Gerald ref erences entered by the J&DR court, but the code sections she cites in her assignments of er ror also refer to proceedings within a J&DR court. These orders are not appealable to this Court, c f. Code § 17.1-405, and at no point, in challenging the evide nce supporting th e finding of ab use or neglect, does Gerald assign error to the circuit court’s fi nal orders. Nevertheless, becau se it is clear from her arguments on brief and at oral argument thatshe challenges the circuit cour t’s orders, which were heard on appeal of the J&DR court’s dispositional orders, and because ap pellees do not argue that these assignments of error are defec tive, we do not find these errors so significant as to require dismissal. Rule 5A:1A (“This Court may dismiss an appeal or impose such other penalty as it deems appropriate for non-complia nce with these Rules.” (emphas is added)).- 8 - 375, 385 (2012). At either a preliminary or dispositional hear ing, DSS must also show that the child meets one of the statutory definitions of a “abused or ne glected child,” which, as relevant here, means showing the child’s pa rent “creates a substantial r isk of death, disfigurement or impairment of bodily or mental functions . . . [or] neglects or refuses to provide care necessary for his health.” Code § 16.1-228. On appeal from the J&DR cou rt, a circuit court reviews the

case de novo . Code § 16.1-296. This Court reviews the circuit court’s rulings more deferential ly. “On review, ‘[a] trial court is presumed to have thorough ly weighed all the evidence, considered the statutory requirements, and made its determination based on the child’s b est interests.’” Castillo v. Loudoun Cty. Dep’t of Family Servs., 68 Va. App. 547, 558 (2018 ) (quoting Logan v. Fairfax Cty. Dep’t of Human De v., 13 Va. App. 123, 128 (1991)). “‘[T]h ere is no simple, mechanical, cut and dried way’ to apply the be st interests of the child sta ndard.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 48 (2014) (quoting Peple v. Peple, 5 Va. App. 414, 422 (1988)). “Instead, ‘the question must be resolved . . . in light of the facts of each case.’” Id. (quoting Toombs v. Lynchburg Div. of Soc. Servs., 223 Va. 225, 230 (1982 )). “Where, as here, the court hears the evidence ore tenus , its finding is entitled to grea t weight and will not be distu rbed on appeal unless plainly wrong or w ithout evidence to support it.” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. A pp. 185, 190 (2011) (quoting Martinv. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15, 20 (1986)) . “If reasonable jurists could disagree aboutthe probative force of the facts, we have no authority to substitute our view s for those of the trial judge.” Joyce v. Commonwealth, 56 Va. App. 646, 664 (2010) (quoting Cam pbell v. Commonwealth, 39 Va. App. 180, 186 (2002)). Here, the evidence reflects tha t DSS first became involved in t his matter because Gerald and the children were sleeping i n a car near a dangerous neighb orhood known for high crime- 9 - rates and drug trafficking. At the time, the children were very young — only two and four years old. When an officer told Gerald she needed to take the childr en somewhere safer, she first took them to a house that, although her mother lived there, was list ed as the residence of a registered sex offender, a fact Gerald knew. When DSS learned of this and met with Gerald, she agreed to a written safety plan, which requi red her to stay with the chil dren at the Salvation Army shelter until DSS could find and approve safe and appropriate housing. The signed, written document also warned Gerald of the possi ble consequences of non-complian ce: “Failure to comply with these requirements could result in the need for CDSS to remove the child(ren) from my care or custody or seek other appropriate action from the [c]ourt.” Gerald did not follow this pla n. Instead, she took the childre n to her cousin’s house, which DSS had previously found unsu itable when developing the s afety plan with Gerald. Although Gerald offers various e xplanations for why she found t he Salvation Army shelter to be unsafe, the record directly r efutes Gerald’s claims. 4 Although she had expressed some reluctance to stay at the shelte r in a phone call with Self, atno point did anyone give her permission to stay anywhere but t he Salvation Army shelter, nor did she alert DSS when she unilaterally decided to take the children elsewhere. Gerald argues, despite there be ing a space open in the Salvati on Army shelter, that DSS should have provided her with othe r options, and thus failed to make “[r]easonable efforts . . . to prevent removal of the child [ren].” Farrell, 59 Va. App. at 38 5. For example, she argues that she could have gone to another shel ter despite the fact that itdid not provide overnight lodging for families. She also argues that she could have spent a port ion of her savings on lodging at a

4 Gerald states that she felt unsaf e and that the shelter was fu ll of “drunks” and was terrifying. Orton, the Salvation A rmy case manager, testified that Gerald and her children had a private room, that the shelter is monitored “24/7,” that substa nce abuse is strictly prohibited, and that sex offenders were not permitted access to the shelter.- 10 - local motel. Her primary argumen t is that DSS should have perm itted her to stay in her cousin’s home, despite the fact that this living arrangement raised nume rous concerns, which is why DSS expressly declined to authorize her staying there when developi ng the safety plan. First, it could not be a long-term solution and o ffer stability to the children , as her cousin could not host guests for longer than fifteen days as a condition of receiving public assistance. More importantly, DSS had no opportunity to inspect the home and see if it was safe a nd adequate for the children. When DSS workers came to her cousin’s home in an attempt to fin d the minor children, Gerald used profanity and threats towards the DSS workers, refused to let them see the children, and would not let them enter or inspe ct the home. Her behavior was so hostile that the workers called for police support. Alt hough no home inspection took pl ace, DSS workers noted, solely from the exterior of the home , that it may be unsuitable due to large amounts of trash and debris around the building. Regardless, t o the dubious extent that th ese other options would have proved suitable in the short t erm, Gerald not only failed to pr ovide DSS an opportunity to inspect and approve that possibility, but also, in contravention of her agreement in the written safety plan, relocated her children w ithout notifying DSS and did not stay at the Salvation Army shelter. Furthermore, DSS’s determination that removal was appropriate w as not made in a vacuum. Gerald had numerous re ports, investigations, and famil y assessments over the years. Gerald also had a history of non-co mpliant and aggressive behav ior towards DSS workers, so the hostile situation in the drivewa y of her cousin’s house the daythe children were removed was yet another instance of behavior they had seen in the past. Even in the time after the emergency removal, but before the ci rcuit court hearings, Gerald’s behavior during visitati on was questionable. The circ uit court found tha t in the time since each child was placed with his or her father, while DSS p rovided supervised visitation and- 11 - attempted to arrange safety plan s and housing inspections, thes e interactions with Gerald have “been difficult and strained.” It noted that Gerald “resisted actions taken by social services representatives,” and communi cation between her and DSS “has be en extremely tense.” Finally, the evidentiary support for Gerald’s arguments are lar gely drawn from her and her cousin’s testimony on her beha lf. The trial court is best equipped, particularly in heavily fact-dependent cases, to make j udgments on credibility and weig h the evidence. See Sutherland v. Sutherland, 14 Va. App. 42, 44 (1992) ( “[O]n review the ‘dec ision of the trial judge is peculiarly entitled to respect f or he saw the parties, heard th e witnesses testify and was in closer touch with the situation than the [appellate] Court, which is l imited to a review of the written record.’” (second alteration i n original) (quoting Brown v. Bro wn, 218 Va. 196, 200 (1977))). To the extent that Gerald offe red an alternative account of the facts, the circuit court was entitled to disbelieve that self-serving testimony. Accordingly, we cannot say the circuit court erred in finding sufficient evidence of a buse or neglect, or in ordering that the children remain with their fathers. C. Findings Required to Transfer Custody to Relative Code § 16.1-278.2(A1) requires that a court transf erring custod y to a “relative or other individual” make certain e xpress factual findings. 5 Gerald argues that the circuit court’s

5 In pertinent part, Code § 16.1-278.2( A1) states the following: Any order transferring custody of t he child to a relative or ot her interested individual pursuant to subdivision A 5 a shall be en tered only upon a finding, based upon a preponde rance of the evidence , that the relative or other int erested individual is one who, af ter an investigation as directed by t he court, (i) is found by the cou rt to be willing and qualified to receive and care for the child; (ii) i s willing to have a positive, continuous relationship with the child; (ii i) is committed to providing a permanent, suitable home for the child ; and (iv) is willing and has the ab ility to protect the child fr om abuse and neglect; and the order shall so state. The court’s o rder- 12 - “Dispositional Orders should be r eversed because the Court fail ed to make the findings required by [Code] § 16.1-278.2(A1) and there was no evidence introduced to allow the Court to make such findings.” Gerald’s argument overlooks a cru cial issue — the circuit courtdid not transfer custody to a relative. Rather, it orde red that custody remain with the children’s biological fathers ( i.e. , it took custody away from Gerald). T his is not a “transfer” of cu stody. Furthermore, although the statute provides no express defini tion of “relative,” it is cle ar in context that the children’s fathers are not “relatives” as contemp lated by that code section. Gera ld relies heavily on the fact that the circuit court’s orders state d that “custody of the Child shall remain with the father pursuant to Va. Code § 16.1-278.2(5)(a).” The fact that the orders cite an inapplicable subsection does not bolster her argument, however. 6 It is apparent from the orders that the children were to “rem ain” with their respective fathers. T he fathers were present for th e proceedings, represented by counsel, and had a history of bei ng responsible for their child ren’s care and a part of the children’s lives. No “transfer ” to a “relative” took place. A s the orders stated, the children remained with their fathers. A ccordingly, the circuit court wa s not required to make findings pursuant to Code § 16.1-278.2(A1) and could not have erred in f ailing to do so.

transferring custody to a relative or other interested individu al should further provide for, as a ppropriate, any terms or condit ions which would promote the child’s i nterest and welfare; ongoing provision of social services to t he child and the child’s custo dian; and court review of the child’s placement.

6 In fact, the citation in the cir cuit court’s orders does not r efer to an existing subsection. Even if the circuit court inte nded to transfer custody to a rel ative, that would be subsection (A)(5)(a), not “(5)(a).” U nder Code § 16.1-278.2(A)(5)(a), a c ourt may, “[a]fter a finding that there is no less drastic alterna tive, transfer legal custody . . . [to a] relative or other interested individual subject to the provisi ons of subsectio n A1 of this s ection.”- 13 - D. Attorneys’ Fees Finally, Gerald argues that the circuit court erred in failing to award her attorneys’ fees pursuant to Code § 16.1-278.19. “An awa rd of attorney’s fees i s a matter submitted to the trial court’s sound discretion and i s reviewable on appeal only for a n abuse of discretion.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 344 (2005) (quoting Graves v. Graves, 4 Va. App. 326, 333 (1987)). Gerald’s argument fails for numerou s reasons. First, Gerald failed to preserve the issue, as she did not file any motion before th e circuit court and solely made a perfunctory reference to it dur ing closing arguments. See Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless a n objection was stated with reasonable certainty at the time of the rul ing[.]”). Even if Gerald adequ ately preserved this argument, DSS would be shielded by sovereign immu nity. “If the General Assem bly had intended that the counties’ departments of social services would have been subjec t to the discretionary assessment of attorneys’ fees in all JDR court proceedings, then it would have said so expressly.” Murphy v. Charlotte Cty. Dep’t of Soc. Servs., 57 Va. App. 784, 791 (2011 ). Accordingly, “the trial court could not award attorney’s fees t o [Gerald] here, especially gi ven the opposing party was the Department, a government agency p rotected by sovereign immunity .” Id. at 793. For these reasons, the circuit court di d not abuse its discretion in decl ining to award fees to Gerald.
III. C ONCLUSION Gerald’s arguments, to the extent they were preserved, lack sup port from both the record and applicable law. Accordingly, w e affirm the circuit court. Affirmed.