Melinda Marie Biby, s/k/a Malinda Marie Biby v. Shenandoah Valley Department of Social Services
0266163
Va. Ct. App. UAug 23, 2016Background
- Mother (Malinda/Marinda Biby) has children T. (b. 2001) and W. (b. 2007); both were removed in Dec. 2012 after mother tested positive for multiple illicit substances and the JDR court adjudicated the children abused/neglected.
- Department provided extensive services (multiple drug-treatment referrals, parenting classes, counseling, psychological and parental-attachment evaluations); mother repeatedly failed to complete programs, missed sessions, and intermittently tested positive for drugs.
- Therapists reported that contact with mother caused regression and PTSD symptoms in W. and behavioral instability in T.; parental-attachment testing rated mother very low and recommended against return.
- Children remained in foster care ~3 years; mother had intermittent employment but unstable housing and later felony convictions and incarceration.
- JDR court terminated parental rights (May 2014); after appeals and additional hearings, the circuit court entered final orders terminating parental rights under Va. Code § 16.1-283(B) and (C)(2) (Jan. 2016). Mother appealed, raising three principal claims.
Issues
| Issue | Biby’s Argument | Dept. / GAL Argument | Held |
|---|---|---|---|
| Whether termination as to T. violated Va. Code § 16.1-283(G) because a child ≥14 who objects bars termination | T. (through mother) allegedly expressed a desire to live with mother in a 2014 evaluation; court should have inquired in chambers whether T., age 14 at trial, objected | No direct evidence that T. objected after turning 14; mother never subpoenaed or renewed request at trial; GAL opposed in‑camera contact due to therapeutic concerns | Affirmed — no evidence of a post-14 objection; mother waived failure-to-inquire claim by not timely requesting hearing or subpoenaing child |
| Whether termination as to W. ignored W.’s wishes and family-unity presumption | W.’s relationship with mother and sibling T. would be harmed; W. opposed termination | W. is under 14 so her wishes are not dispositive; focus must be child’s best interests and proof mother failed to remedy conditions | Affirmed — evidence showed serious threat from mother’s substance abuse, failure to remedy conditions over a reasonable period, and termination served W.’s best interests |
| Whether circuit court erred by denying appointment of a court reporter/transcript | Mother argued she needed a transcript for meaningful appellate review and relied on M.L.B. v. S.L.J. | Court and appellee argued no constitutional right to a transcript; alternative record (detailed letter opinion + statement of facts) sufficed | Affirmed — record of sufficient completeness (detailed letter opinion and approved written statement) satisfied appellate review needs; no transcript required |
| Preservation and procedural defaults | Mother contended court had an obligation to seek child’s wishes sua sponte after her letter requesting in‑camera interview | Court noted mother did not pursue formal motion or renew request at trial; Rule 5A:18 waiver principles apply | Affirmed — claims about lack of in‑camera inquiry were waived for appeal because objection was not timely made |
Key Cases Cited
- Logan v. Fairfax Cty. Dep’t of Human Dev., 13 Va. App. 123 (appellate standard for viewing evidence in child‑welfare appeals)
- Martin v. Pittsylvania Cty. Dep’t of Soc. Servs., 3 Va. App. 15 (weight given to ore tenus findings)
- Deahl v. Winchester Dep’t of Soc. Servs., 224 Va. 664 (trial 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) prospectively and § 16.1-283(C) retrospectively)
- City of Newport News Dep’t of Soc. Servs. v. Winslow, 40 Va. App. 556 (interpretation of termination statutes)
- Richmond Dep’t of Soc. Servs. v. Crawley, 47 Va. App. 572 (child’s best interest as paramount consideration)
- Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App. 535 (children should not be forced to wait indefinitely for parental rehabilitation)
- M.L.B. v. S.L.J., 519 U.S. 102 (indigent appellant entitlement to sufficiently complete record for appeal)
- Draper v. Washington, 372 U.S. 487 (alternative reporting methods permissible if appellate record is adequate)
- Griffin v. Illinois, 351 U.S. 12 (states must provide adequate means for appellate review to indigent defendants)
- Mayer v. Chicago, 404 U.S. 189 (record need not be a full verbatim transcript for appellate consideration)