April Dilaura v. Norfolk Department of Human Services
0223171
| Va. Ct. App. | Nov 21, 2017Background
- In 2014 NDHS removed three children (A., b.2006; G., b.2009; C., b.2012) from mother April Dilaura after periods of homelessness, abandonment, and unsafe housing conditions.
- J&DR court declared the children abused or neglected in Oct. 2014 and entered protective orders; children were returned briefly but later removed again in Feb. 2015 due to mother’s failure to comply with services.
- NDHS required parenting evaluation, substance-abuse assessment and testing, mental-health treatment, employment verification, and stable housing; mother repeatedly failed to complete or provide proof of these services/conditions.
- Two children had significant mental-health needs (A.: high anxiety; G.: severe behavioral problems requiring multiple hospitalizations and residential treatment), increasing the importance of permanency and parental capacity.
- While children were in custody, mother pleaded guilty to possession of methamphetamine and was placed on first-offender probation; she also provided a diluted urine screen and never completed recommended mental-health or parenting services.
- The circuit court terminated mother’s parental rights in Feb. 2017 under Va. Code § 16.1-283(C)(1) and (C)(2); mother appealed but did not adequately assign or brief error as to termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was improper because underlying removal stemmed from poverty, not neglect | Dilaura: removal/abuse-¬neglect finding was rooted in poverty; she now has housing, employment, and will comply with testing/evaluation | NDHS: mother failed to preserve/appeal dispositional orders and failed to comply with services required for reunification | Court: Mother failed to properly assign/raise this on appeal; J&DR dispositional finding not before appellate court; termination affirmed |
| Whether circuit court erred in terminating parental rights under § 16.1-283(C)(1) (6-month no contact/plan) | Dilaura: (implied) she maintained contact and can provide for children | NDHS: mother failed to maintain contact and failed to plan/provide for future, esp. given children’s needs | Held: Clear and convincing evidence supports (C)(1); termination appropriate |
| Whether circuit court erred under § 16.1-283(C)(2) (failure to remedy conditions within 12 months) | Dilaura: claims she is addressing issues and poverty caused past problems | NDHS: mother did not remedy mental-health, substance, employment, or housing problems within 12 months despite efforts | Held: Clear and convincing evidence supports (C)(2); termination appropriate |
| Whether appellant’s brief preserved and adequately argued appellate issues per Rule 5A:20 | Dilaura: brief challenged abuse/neglect finding but did not meaningfully brief termination statute/standards | NDHS/Court: brief violated Rule 5A:20(e) and (c); failed to cite termination statute or supporting authorities; issues deemed waived | Held: Court enforces waiver for inadequate briefing but also finds termination supportable on merits |
Key Cases Cited
- Boatright v. Wise Cty. Dep’t of Soc. Servs., 64 Va. App. 71, 764 S.E.2d 724 (Va. Ct. App. 2014) (appellate review favors the party prevailing below and draws reasonable inferences in their favor)
- Farley v. Farley, 9 Va. App. 326, 387 S.E.2d 794 (Va. Ct. App. 1990) (circuit courts have broad discretion to determine child’s best interests)
- Eaton v. Wash. Cty. Dep’t of Soc. Servs., 66 Va. App. 317, 785 S.E.2d 231 (Va. Ct. App. 2016) (reaffirming circuit court discretion in child-welfare decisions)
- Peple v. Peple, 5 Va. App. 414, 364 S.E.2d 232 (Va. Ct. App. 1988) (ore tenus factual findings will not be disturbed unless plainly wrong)
- Parks v. Parks, 52 Va. App. 663, 666 S.E.2d 547 (Va. Ct. App. 2008) (failure to adhere to Rule 5A:20(e) may result in waiver)
- Jay v. Commonwealth, 275 Va. 510, 659 S.E.2d 311 (Va. 2008) (appellate courts may treat unbriefed issues as waived)
- Budnick v. Budnick, 42 Va. App. 823, 595 S.E.2d 50 (Va. Ct. App. 2004) (issues unsupported by citation/authority are waived on appeal)
- Fitzgerald v. Bass, 6 Va. App. 38, 366 S.E.2d 615 (Va. Ct. App. 1988) (appellate courts will not comb the record to develop appellant’s arguments)
- Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (Va. Ct. App. 1992) (court need not search record to correct deficient briefs)
- Cabral v. Cabral, 62 Va. App. 600, 751 S.E.2d 4 (Va. Ct. App. 2013) (appellate court may consider documents in the record not included in the appendix)