Jessica Gay v. Virginia Beach Department of Human Services
0887171
| Va. Ct. App. | Oct 10, 2017Background
- DHS took custody of appellant Jessica Gay’s children in Oct. 2013 when a relative caring for them fell ill; DHS developed a reunification plan requiring parenting classes, drug testing, therapy, stable housing/employment, and regular visitation.
- After release from jail in Jan. 2014 Gay completed a parenting class but attended visitations inconsistently and tested positive for marijuana; she later returned to Virginia Beach but remained sporadic in visits and employment and failed additional drug tests.
- The JDR court set a stringent permanency order (Sept. 2015) requiring regular counseling, a clean hair follicle test, cooperation with a parenting coach, and in-home services before custody could be returned; Gay failed to comply, missed therapy, was evicted without disclosing it, refused a court-ordered drug test, and remained unstable in employment and housing.
- DHS changed the permanency goal to adoption after relatives identified as placements failed to complete foster training; the JDR court terminated residual parental rights and the circuit court conducted a de novo trial in Mar. 2017.
- At trial DHS introduced testimony about a 2007 infant-death investigation and about concerns with appellant’s mother; DHS caseworker testified the children improved in foster care, had behavioral issues (especially R.D.), and a therapist recommended separate permanent placements.
- The circuit court terminated Gay’s residual parental rights under Va. Code § 16.1-283(C)(2); Gay appealed arguing insufficient evidence and improper admission of prior-incident/family testimony. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Gay) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether evidence was sufficient under Code § 16.1-283(C)(2) to terminate residual parental rights for failure, without good cause, to remedy conditions within a reasonable period (≤12 months) | Gay: DHS failed to prove all statutory factors by clear and convincing evidence; she made some progress (parenting class, parental capacity eval). | DHS: Gay remained unable/unwilling to remedy conditions—unstable housing/employment, refused drug tests, inconsistent visitation—despite services over years. | Court: Held evidence was sufficient; Gay failed to substantially remedy conditions within a reasonable time. |
| Whether termination was in the children’s best interests | Gay: Returning children to mother’s care was preferable; termination not justified. | DHS: Children improved in foster care; sibling conflict and therapist recommendation for separate placements made return to Gay inappropriate. | Court: Held termination was in children’s best interests. |
| Admissibility of testimony about a 2007 infant-death investigation involving Gay (Agustin) | Gay: Testimony about a decade-old incident was irrelevant and unduly prejudicial. | DHS: Past conduct probative of present parenting capacity and foreseeable future risk. | Court: Admitted testimony; probative value of past behavior outweighed prejudice. |
| Admissibility of testimony about DHS’s dealings with appellant’s family (Jones) and concerns about appellant’s mother as potential placement | Gay: Testimony irrelevant and prejudicial. | DHS: Relevant to relative-placement inquiry and to evaluate home where Gay resided at trial. | Court: Admitted testimony; relevant and probative to placement analysis. |
Key Cases Cited
- Congdon v. Congdon, 40 Va. App. 255 (2003) (standard for viewing evidence on appeal)
- Logan v. Fairfax County Dep’t of Human Dev., 13 Va. App. 123 (1991) (trial court discretion and deference in child-welfare decisions)
- Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257 (2005) (subsection C focuses on parent’s failure to make reasonable changes while services provided)
- Cirrito v. Cirrito, 44 Va. App. 287 (2004) (definition of clear and convincing evidence)
- Lecky v. Reed, 20 Va. App. 306 (1995) (requirement to remedy conditions within a reasonable time not exceeding 12 months)
- Kaywood v. Halifax County Dep’t of Soc. Servs., 10 Va. App. 535 (1990) (statutory emphasis on timely resolution and child’s interest in finality)
- Harris v. Lynchburg Div. of Social Services, 223 Va. 235 (1982) (agency not required to impose services on an unwilling parent)