0856182
Va. Ct. App.Feb 19, 2019Background
- Child K.S. born March 2015; mother Erin Snipes had prior opioid addiction and the child was born exposed to Hepatitis C and signs of opioid withdrawal.
- Paternal great-aunt Sandra Perry cared for K.S. frequently beginning late 2015 and obtained custody in J&DR court in Jan. 2017; Snipes was given supervised visitation.
- Snipes entered treatment, avoided nonprescribed drug use after Sept. 2016, married in late 2017, and established a stable home judged suitable by the circuit court.
- Circuit Court (on appeal from J&DR) heard evidence in Sept. 2017 and Jan. 2018 and found Snipes had improved, was capable of parenting without supervision, and K.S. had not been actually harmed while in her care.
- Circuit Court awarded primary custody to Snipes, visitation to Perry, and supervised visitation to father Sterling Delbridge; Perry and Delbridge appealed to the Court of Appeals of Virginia.
Issues
| Issue | Plaintiff's Argument (Perry/Delbridge) | Defendant's Argument (Snipes) | Held |
|---|---|---|---|
| Whether the parental-presumption was rebutted by clear and convincing evidence of unfitness or special facts and circumstances | Perry: Snipes’s past substance abuse, neglect, and incidents (e.g., breastfeeding after drinking, unsafe car restraint) show unfitness and special circumstances rebutting the presumption | Snipes: Has maintained sobriety since treatment, improved parenting, stable home and support—presumption remains intact | Court: Affirmed circuit court — presumption not rebutted; findings supported by evidence |
| Whether K.S. suffered "actual harm" while in Snipes’s care sufficient to justify awarding custody to non-parent | Perry: Evidence shows actual harm or risk of harm from past misconduct and neglect | Snipes: No proof of actual, ongoing harm; recent conduct shows ability to parent safely | Court: Accepted circuit court’s finding that K.S. had not been actually harmed and declined to overturn that factual determination |
| Whether awarding custody to Snipes (the parent) was an abuse of discretion | Perry/Delbridge: Given the record, awarding custody to Snipes was erroneous | Snipes: Circuit court properly weighed credibility and current fitness; custody to parent is favored | Court: No abuse of discretion; substantial deference to trial court’s credibility and fact findings — custody affirmed |
Key Cases Cited
- Surles v. Mayer, 48 Va. App. 146 (Va. Ct. App. 2006) (standard for reviewing evidence in custody appeals)
- Bottoms v. Bottoms, 249 Va. 410 (Va. 1995) (best interests of child and parental presumption)
- Bailes v. Sours, 231 Va. 96 (Va. 1986) (parental custody presumption and limits)
- Florio v. Clark, 277 Va. 566 (Va. 2009) (when presumption may be overcome by clear and convincing evidence)
- Joyce v. Commonwealth, 56 Va. App. 646 (Va. Ct. App. 2010) (deference to trial court on factual findings)
- Damon v. York, 54 Va. App. 544 (Va. Ct. App. 2009) (presumption that circuit court applied law correctly)
- Brown v. Brown, 30 Va. App. 532 (Va. Ct. App. 1999) (appellate review of custody determinations)
- Sutherland v. Sutherland, 14 Va. App. 42 (Va. Ct. App. 1992) (trial court’s advantage in evaluating credibility)
- Judd v. Van Horn, 195 Va. 988 (Va. 1954) (parental custody presumption)