Melinda Marie Biby, s/k/a Malinda Marie Biby v. Shenandoah Valley Department of Social Services
0267163
Va. Ct. App. UAug 23, 2016Background
- Mother (Malinda/ Melinda Biby) has three children; appeals concern termination of parental rights to T. (born 2001) and W. (born 2007).
- Department removed T. and W. in Dec. 2012 after mother tested positive for multiple controlled substances, was homeless, and JDR court adjudicated the children abused/neglected in Jan. 2013.
- Mother repeatedly failed to complete numerous substance‑abuse, parenting, and counseling programs; had multiple positive drug tests, unstable housing, and intermittent incarceration; visitation was suspended when she tested positive.
- Therapists reported significant needs for both children: W. showed regression and PTSD symptoms after contact with mother; T. required structured, capable parenting and later entered a residential/therapeutic placement.
- After ~three years in foster care and multiple unsuccessful reunification efforts, the JDR court terminated parental rights; the circuit court affirmed termination under Va. Code § 16.1‑283(B) and (C)(2), and denied mother’s requests for a court reporter/transcript.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether termination as to T. violated Code § 16.1‑283(G) because a child 14+ who objects bars termination | Mother: record shows T. objects (or at least asked court to interview T.); court should have ascertained T.’s wishes | Department: no direct evidence that T., after turning 14, objected; mother failed to preserve/request hearing at trial | Court: No error. No evidence of T.’s objection after age 14; mother waived in‑court request; §16.1‑283(G) not triggered |
| 2. Whether termination as to W. was improper because it contravenes W.’s wishes and favors family unity | Mother: termination harms W.’s relationship with mother and sibling; family unity should be preserved | Department: W. is under 14 so her wishes are not controlling; focus is child’s best interest and mother failed to remedy conditions | Court: No error. Evidence showed serious threat from mother’s substance abuse, failure to remedy conditions, and termination served W.’s best interests |
| 3. Whether circuit court erred in denying request for court reporter/transcript | Mother: needs transcript for appellate review; M.L.B. requires record sufficient for appeal; requested appointment earlier | Department: alternative record (detailed letter opinion and approved statement of facts) suffices; no constitutional right to transcript here | Court: No error. Record of sufficient completeness (letter opinion + statement of facts); transcript not required |
| 4. Preservation/wavier issues (procedural) | Mother: trial court should have acted on her ex parte letter asking in‑camera interview | Department: ex parte letter improper; mother failed to move or renew request at trial | Court: Mother waived by not timely raising motion at trial; trial court properly refused ex parte communications |
Key Cases Cited
- Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123 (discussing standard: child’s best interests paramount)
- Deahl v. Winchester Dep’t of Soc. Servs., 224 Va. 664 (court must address whether child is of "age of discretion")
- Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257 (distinguishing §16.1‑283(B) prospective vs §16.1‑283(C) retrospective focus on parent’s failure to change)
- M.L.B. v. S.L.J., 519 U.S. 102 (indigent appellant entitled to record sufficiently complete for appellate review)
- Draper v. Washington, 372 U.S. 487 (alternative reporting methods may suffice if they provide equivalent record)