Ebony Lashay Smith a/k/a Ebony Manns-Smith
0268214
| Va. Ct. App. | Sep 21, 2021Background:
- Mother (Ebony Manns‑Smith) had three children; after drug‑related incidents in Sept. 2018 (including appearing unresponsive with child A.J.), the Fairfax Department placed K.F. and M.F. in foster care in Nov. 2018 due to substance use and safety concerns.
- Mother tested positive for PCP and marijuana at multiple points, denied an ongoing drug problem, and was ordered to complete an IOP, random drug screens, a psychological evaluation, parenting classes, and supervised visits.
- A July 2019 psychological evaluation diagnosed mother with cyclothymic disorder and traits similar to borderline personality disorder and recommended individual therapy; mother did not meaningfully engage in therapy.
- Mother’s supervised visits were marked by boundary problems, combative and aggressive behavior (including threats and disparaging remarks), and a visit in Aug. 2020 when mother appeared impaired; visits were restricted and later moved to courthouse supervision.
- The JDR court terminated mother’s parental rights and set adoption as the goal; the circuit court affirmed termination under Va. Code § 16.1‑283(C)(2), finding mother had not substantially remedied the conditions requiring foster care and that termination was in the children’s best interests.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported termination under Va. Code § 16.1‑283(C)(2) (and that termination was in children’s best interests) | Mother: She completed many services (IOP, evaluation, parenting classes, drug screens, visits) and therefore substantially remedied conditions | Department: Mother denied substance problems, failed to engage in individual therapy, persisted in unsafe parenting and noncompliance; children need stability | Court: Affirmed termination; mother failed to substantially remedy the conditions and termination served children’s best interests |
| Whether the JDR order (and circuit court) erred by not addressing K.F.’s age-of-discretion/preference (K.F. was 14) | Mother: JDR erroneously found K.F. not of age of discretion and circuit court failed to clearly elicit K.F.’s objection | Department: Guardian ad litem reported K.F. wanted to remain with foster mother; circuit court considered that evidence | Court: No reversible error; circuit court found K.F. was at least 14 and did not object; record shows guardian ad litem conveyed K.F.’s preference |
| Whether appellant preserved the age‑of‑discretion argument and whether the "ends of justice" exception applies | Mother: Did not preserve in circuit court but asks Court of Appeals to apply ends of justice exception | Department: Exception is narrow; no clear miscarriage of justice shown | Court: Exception not applied; issue not preserved and no miscarriage of justice shown |
| Whether Court of Appeals may review a JDR court ruling directly | Mother: Challenges a JDR court order | Department: Court of Appeals’ jurisdiction is limited to circuit court orders; it cannot review JDR rulings directly | Court: Confirmed limited jurisdiction; Court of Appeals did not review the JDR’s internal rulings on that matter |
Key Cases Cited
- Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539 (2018) (standard for reviewing termination evidence and focus on whether parent remedied conditions)
- Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257 (2005) (subsection C termination hinges on parent’s failure to make reasonable changes)
- Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App. 296 (2013) (child’s best interests are the paramount consideration in termination)
- Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123 (1991) (trial court must consider child’s best interests)
- Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185 (2011) (ore tenus finding entitled to great weight on appeal)
- Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15 (1986) (deference to trial court findings when evidence heard ore tenus)
- Merritt v. Commonwealth, 69 Va. App. 452 (2018) (ends of justice exception is narrow and requires showing of clear, substantial, material error)
- Reaves v. Tucker, 67 Va. App. 719 (2017) (Court of Appeals’ jurisdiction is limited; cannot review JDR rulings unless statute confers jurisdiction)
- Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257 (2005) (role of demonstrated parental failure to change vs. magnitude of original problem)