Hey Appeal to Va. Supreme Court - 40 Pages

IN THE SUPREME COURT OF VIRGINIA At Richmond

NO. _______________________

NANCY A. HEY, Appellant, v. ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee.

PETITION FOR APPEAL

Carl A.S. Coan, III (VSB #23176) Sheila C. Salmon (VSB #28779) Coan & Lyons 1100 Connecticut Avenue, N.W. Suite 1000 Washington, DC 20036 (202) 728-1070 Counsel for Appellant

SUBJECT INDEX

ASSIGNMENT OF ERROR………………………………………… QUESTIONS PRESENTED………………………………………. MATTERS OF SIGNIFICANT PRECEDENTIAL VALUE………… NATURE OF THE CASE…………………………………………… STATEMENT OF FACTS…………………………………………… 5 PRINCIPLES OF LAW………………………………………………. Standard of Review…………………………………….. Virginia Code § 16.1-283………………………………. 17 18

1 2 3 5

17

ARGUMENT………………………………………………………….. 19 The Department did not provide reasonable and appropriate services to Appellant……………………… 19 Appellant remedied substantially the conditions that led to or required the continuation of Sabrina’s foster care placement…………………………………………… 28 Since Appellant complied with all of the requirements of the Department’s foster care service plan her residual parental rights may not as a matter of law be terminated…………………………………………………. 32

CONCLUSION…………………………………………………………. 34

i

Table of Authorities Cases: Bottoms v. Bottoms, 249 Va. 410, 414, 475 S.E.2d 102, 105 (1995) ……………………………...17 C.S. v. Va. Beach Dep’t of Soc. Servs., 41 Va. App. 557, 570, 586 S.E.2d 884, 890 (2003) …………………….32, 33 Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E.2d 682, 683 (1991)…………………….… 19, 20 Edwards v. County of Arlington, 5 Va. App. 294, 311, 361 S.E.2d 644, 653 (1987) ……………………….….27 Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 9 (1992) ……………………………...20 Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 243-44, 288 S.E.2d 410, 415 (1982) ……………………..19, 20 L.G. v. Amherst County Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003) ………………………..18-19

McMorris v. Commonwealth, 276 Va. 500, 504, 666 S.E.2d 348, 350 (2008)………………………. ……..18 Weaver v. Roanoke Dep’t of Human Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980) …………………………18, 35 State Statutes: Va. Code Ann. § 16.1-283(C)(2) (2003)…..……..1, 2, 3, 4, 5, 17, 18, 21, 27, 28, 33

ii CERTIFICATE OF COUNSEL The undersigned counsel for the Appellant hereby certifies: The name of the Appellant, the name of the Appellee and the name and addresses of their counsel are as follows: Appellant: Appellant’s Counsel: Nancy A. Hey Carl A. S. Coan, III Sheila C. Salmon Coan & Lyons 1100 Connecticut Avenue, NW Suite 1000 Washington, D.C. 20036 (202) 728-1070

Appellee:

Arlington County Department of Human

Services Appellee’s Counsel: Jonnise M. Conanan Assistant County Attorney 2100 Clarendon Boulevard Suite 403 Arlington, VA 22201 (703) 228-3100 Mary Ellen Slugg Ragland and Slugg, PC 6878-B Fleetwood Street, Suite B McLean, VA 22102 (703) 241-5573

Guardian ad litem:

iii Other Interested Parties: Christopher Slitor, Pro Se (Record No. 2796-07-4) 4632 2nd Street Arlington, VA 22203 (571) 721-0021 Louise Hey (Record No. 2840-07-4) Counsel for Other Interested Parties: Raymond B. Benzinger 2009 N. 14th Street Suite 600 Arlington, VA 22201 (703) 525-1362 Counsel for Louise Hey A copy of this Petition has been mailed this date to opposing counsel, the Guardian ad litem, counsel for other interested parties and the pro se other interested party. Counsel for Appellant desires to state orally to a panel of the Court

the reasons why this Petition should be granted, and wishes to do so in person.

Dated: January 29, 2009 ___________________________ Carl A. S. Coan, III

iv IN THE SUPREME COURT OF VIRGINIA At Richmond NO. _______________________ NANCY A. HEY Appellant, v. ARLINGTON COUNTY DEPARTMENT OF HUMAN SERVICES Appellee.

APPEAL FROM THE COURT OF APPEALS OF VIRGINIA

PETITION FOR APPEAL

ASSIGNMENT OF ERROR 1. The Court of Appeals erred in affirming the termination of the residual parental rights of Appellant, Nancy A. Hey, under §16.1-283(C)(2) of the Code of Virginia. QUESTIONS PRESENTED 1. Whether the Arlington County Department of Human Services (“Department”) provided reasonable and appropriate services to Appellant, as required by §16.1-283(C)(2) of the Code of Virginia. (This question pertains to Assignment of Error No. 1) 2. Whether Appellant remedied substantially the conditions that led to or required the continuation of the placement of Appellant’s child in foster care. (This question pertains to Assignment of Error No. 1). 3. Whether meeting all of the conditions imposed by a Foster

Care Service Plan precludes the termination of residual parental rights under §16.1-283(C)(2) of the Code of Virginia. (This question pertains to Assignment of Error No. 1) MATTERS OF SIGNIFICANT PRECEDENTIAL VALUE The application of law to the facts of this case involves a matter of significant precedential value because, in affirming the termination of the residual parental rights of Appellant by the Circuit Court of Arlington County (“trial court”), the Court of Appeals ignored the uncontradicted evidence that none of the services offered by the Department were tailored to Appellant’s Pervasive Developmental Disorder. The Court of Appeals also ignored the uncontradicted evidence that the Department failed to provide the services recommended by the Department’s experts. Instead, the Court of Appeals relied on the quantity of services offered by the Department. Therefore, it is essential for the Court to hear this appeal to decide whether in determining if a Department of Social Services has provided reasonable and appropriate services to a parent, as required by §16.1-283(C)(2) of the Code of Virginia, a court may base its decision on the quantity of the services offered rather than whether the services are specifically tailored for the person whose child has been removed from the parent’s home.

The application of law to the facts of this case also involves another matter of significant precedential value because the Court of Appeals ruling that the Department provided “reasonable and appropriate” services is based on the erroneous premise that Appellant cannot be the primary caregiver of her child, Sabrina Slyter (“Sabrina”). This ruling is also based partly on the failure by Appellant to hire a nanny. However, the requirement to hire a nanny was not in the Foster Care Service Plan or in any other agreement entered in to by Appellant; it was merely a suggestion by the Department. In essence, the Court of Appeals treated the suggestion by the Department that Appellant hire a nanny as a de facto amendment of the Foster Care Service Plan. Permitting such de facto amendments will establish a dangerous precedent by creating a moving target for parents who seek to comply with the conditions of a Foster Care Service Plan that they must satisfy before their children are returned to them. In addition, the Court of Appeals ignored the overwhelming evidence that Appellant had remedied substantially the conditions that led to Sabrina’s foster care placement. The Appellant satisfied all of the requirements of the Foster

Care Service Plan implemented by the Department. Therefore, the Court must hear this appeal to determine the significant legal issue of whether meeting all of the conditions imposed by a Foster Care Service Plan precludes the termination of a person’s residual parental rights under § 16.1-283(C)(2) of the Code of Virginia. This Court has not, to the best of Appellant’s knowledge, previously considered this issue.

NATURE OF THE CASE After twenty days of trial, the trial court terminated the residual parental rights of Appellant under § 16.1-283(C)(2) of the Code of Virginia on June 1, 2007. The trial court’s Final Order terminating Appellant’s residual parental rights was entered on October 26, 2007. A Notice of appeal was filed on November 20, 2007. The trial court’s decision was appealed on several grounds. On December 30, 2008, the Court of Appeals affirmed the trial court’s decision, rejecting all of the grounds of Appellant’s appeal,

including the argument that the evidence did not satisfy the requirements of § 16.1-283(C)(2) of the Code of Virginia. This Petition asks the Court to review and reverse the decision by the Court of Appeals that the termination of Appellant’s residual parental rights under § 16.1-283(C)(2) was proper. STATEMENT OF FACTS Appellant gave birth to Sabrina at Fairfax Hospital on April 3, 2005. (Vol. X, p. 5023). At birth, Sabrina weighed 7 lb. 4 oz. (Vol. X, p. 5023). At Sabrina’s birth, Appellant was unmarried but living with Christopher Slitor (“Mr. Slitor”). However, Mr. Slitor is not Sabrina’s biological father. Appellant and Sabrina were discharged from Fairfax Hospital on April 6, 2005. (Vol. X, p. 5016). On April 8, 2005, Appellant took Sabrina to her pediatrician, Ely George Mouchahoir, M.D., for Sabrina’s first post-discharge appointment. (Vol. X, p. 4894). At this appointment, Sabrina weighed 6 lb. 12 oz., a loss of eight ounces since Sabrina’s birth. (Vol. X, p. 4894). Although a weight loss of 6-10% in the first two weeks is not unusual for a newborn, Dr. Mouchahoir recommended that Appellant supplement her breast feeding with one ounce of formula at every other feeding. (Vol. I, p. 335; Vol. X, p. 4894). Appellant strictly followed Dr. Mouchahoir’s

instructions. (Vol. III, pp. 1052-1054). At her next appointment on April 11, 2005, Sabrina weighed 6 lb. 10 oz., a two ounce loss of weight from April 8, 2005. (Vol. X, p. 4894). Although Sabrina’s weight loss was still within the normal range of weight loss for newborns, Dr. Mouchahoir instructed Appellant to increase the supplementation of breast feeding with formula from one ounce to 1.5 ounces, again at every other feeding. (Vol. X, p. 4894). On April 12, 2005, Dr. Mouchahoir changed his feeding instructions to supplement with one ounce at every feeding. (Vol. X, p. 4894). Appellant faithfully complied with all of Dr. Mouchahoir’s instructions. After the April 11, 2005 appointment, Sabrina’s weight fluctuated between 6 lb. 10 oz. and 6 lb. 12 oz. (Vol. X, p. 4892). Sabrina’s appointment on April 16, 2005 was with another pediatrician in Dr. Mouchahoir’s office who was seeing Sabrina for the first time. (Vol. X, p. 4893). Despite the fact that Sabrina’s weight loss since birth of ten ounces (9%) was within the normal range of weight loss for a newborn within the first two weeks after birth, this doctor recommended to Appellant that Sabrina be admitted to the hospital for a determination of why Sabrina was not gaining weight. (Vol. I, p. 335). Appellant again complied with

Sabrina’s doctor’s instructions and she had Sabrina admitted to Virginia Hospital Center that day. (Vol. X, p. 4905). Appellant stayed with Sabrina at the hospital the entire time. (Vol. I, p. 292). At Virginia Hospital Center, Sabrina was diagnosed with nonorganic failure to thrive. (Vol. X, p. 4905). On admission, Appellant was instructed to supplement her breast feeding of Sabrina with as much formula as Sabrina would drink. (Vol. I, p. 289). On April 20, 2005, Dana Zemke, a social worker from the Department, visited Appellant at the hospital. (Vol. X, p. 4802). Ms. Zemke had been called by Michael James Sheehan, M.D., Sabrina’s treating physician at the hospital, because of concerns by hospital personnel about Appellant’s parenting skills. (Vol. X, p. 4803). After meeting with Appellant at the hospital and Mr. Slitor at home, Ms. Zemke prepared a Safety Plan to be utilized by Appellant and Mr. Slitor upon Sabrina’s discharge from the hospital. (Vol. X, p. 4802). This Safety Plan, signed by Appellant and Mr. Slitor, required that: 1. Appellant and Mr. Slitor work with nurses at their home

and follow all parenting techniques taught by the nurses; 2. Appellant and Mr. Slitor each have a mental health

evaluation and follow all recommendations made in connection

therewith; and 3. Mr. Slitor not hold Sabrina when drinking and either stop

drinking or carefully monitor and control his drinking. In addition to the Safety Plan, there was a Discharge Plan prepared by the hospital. (Vol. X, p. 4911; Vol. XI, p. 5462). However, neither Appellant nor Mr. Slitor signed the Discharge Plan, nor were they given a copy of the Discharge Plan. (Vol. X, p. 4911; Vol. XI, p. 5462). Moreover, the Department’s Safety Plan did not refer to, or incorporate, the hospital’s Discharge Plan. (Vol. X, p. 4899). Sabrina was discharged from Virginia Hospital Center on Thursday, April 21, 2005. (Vol. X, p. 4905). At discharge, Sabrina weighed 7 lb. 5 oz., a gain of eleven ounces while in the hospital. (Vol. X, p. 4928). The next day, April 22, 2005, Appellant and Sabrina were visited separately by both Ms. Zemke and personnel from the Comprehensive Health Investment Project (“CHIP”). (Vol. X, pp. 4810, 4840). Sabrina was fine and no concerns were expressed regarding Sabrina’s health. (Vol. X, p. 4840). The CHIP personnel told Appellant that they would contact her the following week to schedule their next visit. (Vol. X, p. 4840).

On Saturday, April 23, 2005, Vergie Hughes, a lactation nurse retained by Appellant, visited Appellant at her home. (Vol. XI, p. 5343). At this visit, Ms. Hughes did not express any concerns regarding Sabrina’s health. (Vol. XI, p. 5343). On April 23, 2005, Appellant was also visited by Ms. Zemke and Leslie Moran, another Department social worker. (Vol. X, p. 4811). However, Appellant, along with Mr. Slitor, had decided to seek legal counsel to determine what their legal rights and responsibilities were with respect to Sabrina and the Safety Plan that they had signed. (Vol. X, pp. 4902-4903). Appellant and Mr. Slitor “tactfully suggest[ed] a TIMEOUT” from the Safety Plan until after they met with an attorney. (Vol. X, pp. 4902-4903). Mr. Slitor gave Ms. Zemke a letter to this effect when Ms. Zemke first came to visit on April 23, 2005. (Vol. X, p. 4811). Ms. Zemke and Ms. Moran returned with a policeman later on April 23, 2005. (Vol. X, p. 4811). However, Appellant and Mr. Slitor refused them entry and reiterated their plan to consult with an attorney before continuing with the Department’s Safety Plan. (Vol. X, p. 4811). Neither Ms. Zemke nor anyone else from the Department took any action with regard to Sabrina for the remainder of that weekend.

(Vol. X, pp. 4811-4813). Appellant and Mr. Slitor did, however, consult with two attorneys that weekend and on Monday, April 25, 2005. (Vol. X, pp. 4811-4813). The two attorneys placed a total of four phone calls to the Department in an attempt to discuss the matter with the Department. (Vol. X, pp. 4811-4813). Rather than meeting with Appellant’s attorneys, on Monday, April 25, 2005, the Department sought an emergency removal order from the Arlington County Juvenile and Domestic Relations District Court (“J&DR Court”) which was granted. (Vol. X, p. 4814). Accordingly, Sabrina was removed from Appellant’s and Mr. Slitor’s home on April 25, 2005 and placed in foster care. When she was removed, Sabrina weighed 8 lb. 1 oz., a gain of twelve ounces in the four days Sabrina had been home since being discharged from the hospital. (Vol. X, p. 4893). On May 2, 2005, the J&DR Court made a finding of abuse and neglect and ordered that both Appellant and Mr. Slitor undergo a psychological evaluation. (Vol. X, p. 4822). Appellant’s psychological evaluation was performed in May 2005 by Giselle Aguilar Hass, Psy.D. (“Dr. Hass”), who was retained by the Department. (Vol. X, pp. 4767-4777). In her report, Dr. Hass diagnosed Appellant as having “Pervasive Developmental Disorder

NOS (Probable Asperger’s Disorder).” (Vol. X, p. 4776). As a result, Dr. Hass concluded that Appellant could not be the primary caretaker of Sabrina. (Vol. X, pp. 4775-4776). Appellant and Mr. Slitor were also required by the J&DR Court to undergo a parent-child bonding assessment. A separate assessment of each was performed by Carolyn Corbett, Ph.D. (“Dr. Corbett”) in June 2005. (Vol. X, pp. 4784-4797). In her assessment of Appellant, Dr. Corbett recommended that Appellant receive “hands-on intensive homemaking services.” (Vol. X, p. 4791). In her assessment of Mr. Slitor, Dr. Corbett found that “Mr. Slitor engaged in behaviors that foster secure attachment.” (Vol. X, p. 4797). Among other things, Dr. Corbett recommended that “Mr. Slitor continue to receive and participate in home-based parenting training services.” (Vol. X, p. 4797). On June 17, 2005, the Department filed its initial Foster Care Service Plan. (Vol. X, pp. 4763-4766). The goal of that Plan was “Return to Own Home.” (Vol. X, p. 4763). The needs identified in the Plan “which must be met to achieve the goal for the child” were: In order for the goal of Return Home to be successful, a primary caretaker must be identified for Sabrina …. Mr. Slitor will need to be able to compensate for Appellant’s learning disabilities and respond appropriately to Sabrina while forming

a loving attachment to her. Appellant and Mr. Slitor will also need to continue to cooperate with educational services (e.g. CHIP) to learn infant development and behaviors. They will also need to continue to attend couple’s therapy to strengthen their communication and work through their feelings related to the roles they need to assume with Sabrina. They need to continue to show improvement in their comfort level in responding to Sabrina during visitation and working with the professionals involved in her case. Lastly, Mr. Slitor needs to cooperate with a substance abuse assessment and follow through with any recommendations to ensure he remains drug and alcohol free as Sabrina’s primary parent. (Vol. X, p. 4764). The “Target Date for Achievement” of the Plan was April 25, 2006, one year from the date of Sabrina’s removal. (Vol. X, p. 4763). The Plan was approved by the J&DR Court on July 5, 2005. (Vol. X, pp. 4759-4762). In addition to the judicial abuse and neglect proceeding, an administrative disposition of “Founded-Physical Neglect-Failure to Thrive-Level One” against Appellant and Mr. Slitor with respect to Sabrina was made by the Department on June 20, 2005. (Vol. XI, p. 5436). The administrative disposition was upheld on November 30, 2005. (Vol. XI, p. 5436). However, on appeal, the administrative disposition made by the Department was reversed by a Child Protective Services (“CPS”) Hearing Officer on behalf of the Virginia Department of Social Services because the Department “failed to prove its disposition by a preponderance of the

evidence.” (Vol. XI, p. 5459). Significantly, in that decision, one of the findings of fact was that “Sabrina’s health was never threatened because [Appellant] was taking Sabrina to Dr. Mouchahoir’s office every day and her condition was being medically monitored.” (Vol. XI, p. 5459). From the date of Sabrina’s removal through December 31, 2005, Appellant and Mr. Slitor were permitted visits with Sabrina, mainly at the Department’s offices, as follows: May 2005 May May May May May May May 5 - 1 hour 10 - 1 hour 12 - 1 hour 16 - 1 hour 19 - 1.5 hours 26 - 1 hour 31 - 1 hour

June 2005 June June June June July 2005 July 1 - 1 hour July 8 - 2 hours July 12 - 1.25 hours July 14 - 1 hour July 19 - 1 hour 2 - 1 hour 7 - 1 hour 16 - 2 hours 23 - 2 hours

July 21 - 1.3 hours August 2005 August 4 - 1 hour August 5 - 1 hour August 8 - 1 hour August 11 (only Appellant) - 1 hour August 16 - 10 minutes (at café near Department’s offices) August 17 - 30 minutes (at café near Department’s offices) August 18 - 30 minutes August 31 - 25 minutes September 2005 September 16 (at the office of Catherine Anderson, Ph.D. for a parent child assessment arranged and paid for by Appellant) - 1 hour October 2005 October 7 (only Mr. Slitor) - 10 minutes October 13 (only Mr. Slitor) - 40 minutes October 17 (only Mr. Slitor) - 45 minutes October 28 - 1 hour (at the home of Appellant and Mr. Slitor) November 2005 November 23 - Less than 1 hour December 2005 December 2 (only Mr. Slitor) - 30 minutes (Vol. II, pp. 882; Vol. III, pp. 1398, 1403, 1416, 1449-1452, 1456, 1463-1465, 1468-1469, 1471, 1481, 1554, 1559; Vol. V, pp. 2375, 2383, 2386, 2388-2389, 2391, 2400, 2402, 2406, 2409-10, 2411,

2419-2423, 2426-2427, 2430-2431; Vol. VI, pp. 2929, 2934). As listed above, there were only 32 visits for the period May through December 2005. The total amount of time of the visits was approximately 29 hours 15 minutes. Of this amount, Appellant participated in approximately 27 hours and 10 minutes. In contrast, the total number of hours for the eight months of May through December is 5880. Appellant had one visit in October and November 2005; no visits in December. For this three-month period, Appellant was able to visit with Sabrina for less than approximately two hours out of a total of 2184 hours. On September 28, 2005, Appellant’s mother, Louise Hey, filed a Petition For Child Custody. (Vol. I, pp. 1-2). On September 29, 2005, Mr. Slitor filed a Petition for custody. (Vol. I, p. 3). In late November 2005, the J&DR Court ordered each of the parties to submit a plan designed to facilitate the goal of return home of the initial Foster Care Service Plan. (Vol. I, p. 17). On December 16, 2005, the J&DR Court accepted the plan submitted by Appellant and Mr. Slitor. (Vol. X, pp. 5220-5221). This plan, which was implemented in January 2006, was a four-phase therapeutic intervention plan (the “Intervention Plan”)

designed by Cheryl Wietz, a licensed clinical social worker (“LCSW”) (“Ms. Wietz”), from The Falls Church Parent-Child Center. (Vol. X, pp. 5206-5219). The Intervention Plan contemplated regular visits (three times per week) of increasing duration at which members of Ms. Wietz’s team would provide intensive home-based and homemaking services, the type of services recommended by the Department’s own experts. (Vol. VIII, p. 3759). Less than three months later, in March 2006, the Department proposed a change in the goal of return home to adoption. (Vol. I, pp. 4-6; Vol. X, p. 4733). On June 15, 2006, the J&DR Court approved a change in goal from return home to adoption and terminated the Intervention Plan. The J&DR Court entered a Permanency Planning Order on June 22, 2006. (Vol. I, pp. 72-76). Appellant and Mr. Slitor timely noted their appeals of the J&DR Court’s decision to the trial court. (Vol. I, pp. 77-80). In conjunction with the proposed change in goal, the Department also filed a petition to terminate the residual parental rights of Appellant to Sabrina. (Vol. I, pp. 7-71). A trial on those petitions was scheduled for September 20-22, 2006. On September 20, 2006, in accordance with the stipulation of

the parties, an order involuntarily terminating Appellant’s residual parental rights to Sabrina was entered by the J&DR Court. (Vol. I, pp. 83-84). The J&DR Court also denied the custody petitions of Mr. Slitor and Louise Hey by stipulation. (Vol. I, pp. 81-82). Timely appeals of these Orders were noted by Appellant, Mr. Slitor and Louise Hey to the trial court. (Vol. I, pp. 85-87). These appeals were then consolidated with the appeal on the change in goal and a de novo trial on all the appeals began on December 4, 2006. As noted above, on June 1, 2007, the trial court approved, pursuant to § 16.1-283(C)(2) of the Code of Virginia, the Department’s Petition to Terminate the Residual Parental Rights of Appellant to Sabrina. (Vol. IX, pp. 4659-4670). After a timely appeal, the Court of Appeals affirmed the trial court’s decision. PRINCIPLES OF LAW I. STANDARD OF REVIEW “Absent clear evidence to the contrary in the record, the judgment of a trial court comes to an appellate court with the presumption that the law was correctly applied to the facts.” Bottoms v. Bottoms, 249 Va. 410, 414, 475 S.E.2d 102, 105 (1995) (citation omitted). “And, the appellate court should view the facts in the light most favorable to the party prevailing before the trial court.”

Id.

“However, this Court will reverse a judgment of the trial court

that is plainly wrong or without evidence to support it.” McMorris v. Commonwealth, 276 Va. 500, 504, 666 S.E.2d 348, 350 (2008) (citations omitted). II. VIRGINIA CODE § 16.1-283

Under § 16.1-283 of the Code of Virginia, “the termination of the legal relationship between parent and child is a grave proceeding.” Weaver v. Roanoke Dep’t of Human Resources, 220 Va. 921, 926, 265 S.E.2d 692, 695 (1980). Moreover, The preservation of the family, and in particular the parent-child relationship, is an important goal for not only the parents but also government itself. While it may be occasionally necessary to sever the legal relationship between parent and child, those circumstances are rare. Statutes terminating the legal relationship between parent and child should be interpreted consistently with the governmental objective of preserving, when possible, the parent-child relationship. Id. (emphasis added). More specifically, to terminate Appellant’s parental rights under § 16.1-283(C)(2), The Court must find upon clear and convincing evidence, (1) that termination is in the best interests of the child and (2) that “[Appellant], without good cause, [has] been unwilling or unable within a reasonable period of time not to exceed twelve months from the date [Sabrina] was placed in foster care to remedy substantially the conditions which led to or required continuation of [Sabrina’s] foster care placement

notwithstanding the reasonable and appropriate efforts of social, medical, mental health or other rehabilitative agencies to such end ....” L.G. v. Amherst County Dep’t of Soc. Servs., 41 Va. App. 51, 56, 581 S.E.2d 886, 889 (2003) (citation omitted) (quoting Va. Code § 16.1-283(C)(2)). ARGUMENT As noted by the Court of Appeals, “[T]o terminate [Appellant’s] residual parental rights, the court must make three separate findings: (1) that termination is in [Sabrina’s] best interests, (2) that, without good cause, [Appellant] failed to remedy substantially the conditions that led to [Sabrina’s] foster care placement and (3) that DHS made reasonable and appropriate efforts to help her remedy those conditions.” Op. 7. As discussed below, neither condition 2 nor 3 was satisfied. THE DEPARTMENT DID NOT PROVIDE REASONABLE AND APPROPRIATE SERVICES TO APPELLANT “Reasonable and appropriate efforts must be made to assist a delinquent parent in remedying the conditions that lead to a parent’s temporary relinquishment of the children to the care of the department.” Cain v. Commonwealth, 12 Va. App. 42, 45, 402 S.E. 2d 682, 683 (1991) (citing Harris v. Lynchburg Div. of Soc. Servs.,

223 Va. 235, 288 S.E.2d 410 (1982)). “The offer of such assistance is a prerequisite to termination of parental rights.” Id. (citing Harris at 243-44, 288 S.E.2d at 415). What constitutes “‘reasonable and appropriate efforts’ can only be judged with reference to the circumstances of a particular case.” Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 338, 417 S.E.2d 1, 9 (1992). Appellant was diagnosed by Dr. Giselle Hass, who was retained by the Department, as having “Pervasive Developmental Disorder NOS (Probable Asperger’s Disorder).” (Vol. X, p. 4776); See also (Vol. X, p. 4775). According to Dr. Hass, therefore, Appellant was not capable of being the primary caretaker of Sabrina because of this disorder. (Vol. X, pp. 4775-4776). As the evidence at trial clearly established, Appellant does not have Asperger’s Syndrome. Rather, she has a mild form of PDD-NOS (not otherwise specified). (Vol. VI, pp. 2665, 2669-2670, 2672; Vol. VII, pp. 3539-3540). Although there is no scientific basis for the assertion that a person with PDD-NOS, or Asperger’s Syndrome, cannot be a primary caretaker of a child (Vol. VI, pp. 2672-2673, 2684, 2964-2968; Vol. VII, pp. 3622-3627), the services provided by the Department were designed under the premise that Appellant could

not be the primary caretaker of Sabrina. Moreover, none of the persons providing services to Appellant during 2005 had any training in or expertise with PDD-NOS. (Vol. III, p. 1088). Therefore, the services provided by the Department were de facto not “reasonable and appropriate” as required by §16.1-283(C)(2). The services provided by the Department were also not “reasonable and appropriate” because the Department did not provide the type of services recommended by its own experts. Dr. Hass recommended that: Home based counseling is recommended in order to explore whether Ms. Hey, as an adjunct caretaker for Sabrina, can learn basic grooming, feeding, holding behavior, and safety issues regarding caretaking of her baby. (Vol. X, p. 4776). Fern Levy (a member of Cheryl Weitz’s team), Dr. Anderson (one of Appellant’s experts), and Cheryl Weitz each testified that Dr. Hass’ recommendation was a recommendation for intensive home based services. (Vol. VI, pp. 2845-2846, 2962-2964; Vol. VIII, pp. 3749-3750). Lizette Orr (the Department’s primary service provider) testified that, although she knows what intensive home based services are, she did not implement home based services in this case. Q. Ma’am, you’re aware, are you not, of the term “intensive home-based services”?

I’ve heard of that, yes. Q. Do you know what it means? A. Yes. Q. And in no sense did you provide intensive homebased services to this family. No. (Vol. V, pp. 2381-2382). Ms. Orr further testified that she was never even aware that there was a recommendation for intensive home based services in this case. (Vol. V, p. 2382). Dr. Anderson testified that, at the time of her evaluation on September 16, 2005, and based upon her review of the records in the case, intensive home based services had not been implemented. (Vol. VI, pp. 2962-2963). In addition, Ms. Wietz testified that the first time intensive home based services were implemented on behalf of Appellant was when Ms. Wietz implemented the Intervention Plan in January 2006 which was approximately nine months after Sabrina’s removal. (Vol. VIII, p. 3750). Clearly, therefore, the Department did not provide the type of services recommended by Dr. Hass. The Department also failed to implement the recommendations of its second expert, Dr. Corbett, who recommended that: Ms. Hey would benefit from receiving hands-on intensive homemaking services in order to determine whether she is able to learn and retain the skills required to

care for Sabrina. The homemaker should also accompany Ms. Hey to visits in order to assist her in hands-on care for Sabrina. (Vol. X, p. 4791). However, no evidence was presented that the Department ever implemented this recommendation. In fact, the only evidence was to the contrary. When asked, Ms. Orr stated that she and CHIP did not provide hands-on intensive homemaking services. (Vol. V, p. 2347). See also (Vol. II, pp. 708-710). Dr. Corbett testified that she “has worked with families who have had forty hours a week or more of intensive homemaking services” and that “forty hours a week [is not] absolutely inappropriate.” (Vol. II, pp. 709-710). In this case, Appellant did not receive any intensive homemaking services before the implementation of the Intervention Plan in January 2006. Again, this failure by the Department to provide the services recommended by the Department’s own experts demonstrates that the services provided by the Department were not “reasonable and appropriate.” When the Department was confronted with Sabrina’s crying during visits, the Department did not contact Dr. Hass about Sabrina’s crying until December 2, 2005. (Vol. IV, p. 1818). In addition, the Department never consulted with Dr. Corbett after her evaluations of Appellant and Mr. Slitor in June 2005. (Vol. II, p.

717). Instead, the Department terminated visits after it tried various things such as retaining an infant massage therapist and moving the location of the visits. Op. 9. However, no evidence was presented that these strategies had any medical, scientific or psychological basis. The only individuals whom the Department actually contacted with respect to Sabrina’s crying were persons within the Department and Ms. Orr and her supervisor from CHIP. (Vol. III, p. 1088). However, the Department’s reliance on Ms. Orr and her supervisor from CHIP was unreasonable as indicated by Ms. Moran’s testimony that: Q. To some extent. What are the qualifications that Lizette Orr has to make this kind of a recommendation? A. You’d have to ask her. Q. Well, you took it and you acted upon it. You should have known what her qualifications are so you can properly weight her recommendation. A. Her reasons, um, for that, I agreed with because I had observed visits as well. Q. To date you still don’t know Lizette Orr’s background education, what her qualifications are to do and make this type of a recommendation which is case breaking. Stop visitation. A. It is not case breaking because it was temporary. The I dea was to temporarily stop visitation not permanently. (Vol. IV, pp. 1799-1800). Ms. Moran further testified that:

So, do you know what her qualifications are today? No, not specifically. I think she has a Bachelor’s, but, no. That’s all, just a Bachelor’s? A. I don’t know. You’d have to ask her. I watched her work and thought she was very qualified and that’s what is the important thing. (Vol. IV, pp. 1800-1801). In fact, Ms. Orr did not possess a Bachelor of Arts or Science in any subject nor did she hold any licenses issued by the Commonwealth of Virginia. (Vol. V, pp. 2323-2324). Her only education was a two-year certificate from the West Indies University in child development with no specific age range, (Vol. V, pp. 2324-2325), and she did not have any training with respect to PDDNOS. (Vol. V, pp. 2332-2333). Moreover, despite being informed of Appellant’s diagnosis by Dr. Hass, Ms. Orr failed to take Appellant’s condition into account with respect to the services that Ms. Orr provided. She testified that: A. I really didn’t think much about the condition that Ms. Hey had. I worked under the assumption that, you know, as it is mother and child, there’s a connection that had nothing to do with psychological or --. I mean, I worked under the assumption that love and motherhood will connect the family. (Vol. V, pp. 2351-2352). Therefore, the services provided by the Department were not “reasonable and appropriate” because the

Department did not take appropriate steps to address Sabrina’s uncontrollable crying and the primary service provider was not qualified to provide services to a person with PDD-NOS. In addition to Ms. Orr’s lack of education and training in providing services to persons with PDD-NOS, Ms. Orr was unavailable for one and a half months of the four months during which CHIP provided services to Appellant on behalf of the Department. (Vol. V, p. 2421). Ms. Orr was out on sick leave

during July and until the third week of August 2005. (Vol. V, pp. 2356-2357). Therefore, as testified to by Ms. Orr, there was no effective teaching of parenting skills to Appellant in August 2005. (Vol. V, p. 2421). The decision by the Court of Appeals on the issue of whether the services provided by the Department were “reasonable and appropriate” is essentially devoid of any analysis regarding whether the services offered by the Department took into account Appellant’s PDD-NOS. The only acknowledgement by the Court of Appeals that the services provided by the Department needed to take into account Appellant’s PDD-NOS is the Court’s statement that, “DHS discussed mother’s developmental disorder with mother and Slitor and worked to help them identify a primary caretaker for

child.” Op. 9. However, this superficial analysis suffers from the same flaw as the flaw in the services actually offered by the Department, i.e., both were based on the erroneous premise that Appellant could not be the primary caretaker of Sabrina. The Court of Appeals concluded that, “In light of all of those services”, it could not “say that the circuit court was plainly wrong in finding that DHS made ‘reasonable and appropriate’ efforts to assist mother.” Op. 10. The focus by the Court of Appeals on the quantity of services provided, rather than whether they were designed to accommodate the specific circumstances of Appellant’s PDD-NOS, is inconsistent with the requirements of Virginia Code §16.1-283(C)(2). In fact, none of the services were designed to assist Appellant in overcoming her difficulties in parenting caused by her PDD-NOS. Moreover, all of the services provided by the Department were based on the erroneous premise that Appellant could not be the primary caretaker of Sabrina. In addition, although without any medical, scientific or psychological basis, most of the services listed by the Court of Appeals were provided to address Sabrina’s crying at visits; they were not focused on Appellant’s parenting skills. Therefore, the termination of Appellant’s residual parental rights was plainly

wrong as a matter of law. Cf. Edwards v. County of Arlington, 5 Va. App. 294, 311, 361 S.E.2d 644, 653 (1987) (reversing termination of residual parental rights because the mother of the child did not receive the services that were designed to assist her in confronting the cultural and language barriers that played such a prominent role in her difficulties). II. APPELLANT REMEDIED SUBSTANTIALLY THE CONDITIONS THAT LED TO OR REQUIRED CONTINUATION OF SABRINA’S FOSTER CARE PLACEMENT Appellant’s parental rights may be terminated if Appellant, ““without good cause,” failed “to remedy substantially the conditions which led to or required continuation of [Sabrina’s] foster care placement.” Va. Code Ann. § 16.1-283(C)(2) (2003). This begs the question of what were the conditions that led to or required the continuation of Sabrina’s foster care placement. According to the Court of Appeals, “By failing to identify an adequate primary caregiver or hire a nanny, mother failed to remedy the problem that led to child’s initial removal.” Op. 8. (emphasis added). However, as discussed above, the focus on identifying a primary caregiver is based on the erroneous premise that Appellant cannot be Sabrina’s primary caregiver.

The initial Foster Care Service Plan did not require Appellant to hire a nanny. (Vol. X, pp. 4763-4766). This is consistent with

the acknowledgement by the Court of Appeals that the hiring of a nanny was a suggestion. Op. 7. (“DHS suggested that mother and Slitor hire a full-time nanny who could assist mother and act as child’s primary caretaker, but mother and Slitor failed to do so.”) (emphasis added). Transforming the hiring of a nanny from a suggestion to a requirement operates as a de facto amendment of the Foster Care Service Plan. However, permitting such de facto amendments impermissibly creates a moving target for parents who are striving to have their children returned to them. By holding that Appellant “failed to remedy the problem that led to child’s removal”, the Court of Appeals also ignored the overwhelming evidence to the contrary. Specifically, as follows, five social workers testified that Appellant meets and exceeds the minimal parenting standard expected of parents: 1. Fern Levy, LCSW, testified that she believed that, in

June 2006, Appellant was ready for unsupervised visits with Sabrina; that Sabrina should be returned home; and, that all the safety issues regarding Appellant’s parenting of Sabrina had been addressed. (Vol. VII, p. 3169);

2.

Kristen Rodriguez, LCSW, and a former supervisor and

CPS worker for the Department of Family Services in Fairfax County, testified that Appellant was nurturing, concerned with Sabrina’s physical and emotional well-being and an adequate parent. (Vol. VII, pp. 3289-3290). Ms. Rodriguez also testified that the activities undertaken by Appellant with Sabrina were appropriate; Appellant multitasked when caring for Sabrina; Appellant independently parented Sabrina; Appellant was able to anticipate Sabrina’s needs; there was no risk to Sabrina from Appellant; Appellant closely supervised Sabrina and redirected her when necessary; and, she thought Sabrina could be safely returned home to Appellant. (Vol. VII, pp. 3292-3293, 3295-3296, 3297-3298, 3300, 3306, 3315-3316); 3. Aaron Hopper, who has a Masters degree in

Psychological Services and Counseling and worked in the area of home based services for at risk children and families within the community, testified that he observed no problems with the interaction between Appellant and Sabrina, and that Appellant was able to react spontaneously to Sabrina’s needs. (Vol. VII, pp. 3381-3382); 4. Lynn Wolfe, who has a Masters degree in Social Work

and was working toward licensure as a licensed clinical social worker, testified that Appellant learned to parent Sabrina independently; Appellant became relaxed and confident in the normal parenting of Sabrina; during Sabrina’s two overnight visits, Appellant performed all the normal parenting tasks; Appellant’s ability to recognize and respond to Sabrina’s moods improved; Appellant was able to multitask when parenting Sabrina; Appellant set appropriate limits for Sabrina; she had no safety concerns regarding Appellant’s parenting of Sabrina; and Appellant was capable and ready to care for Sabrina (Vol. VII, pp. 3406, 3410, 3419, 3424-3425, 3435, 3446, 3447, 3490); and 5. Cheryl Wietz, LCSW, testified that by mid-April 2006,

Appellant was able to perform basic parenting tasks successfully; there was social and emotional interaction between Appellant and Sabrina; Appellant manifested parenting skills of mutual sharing, social reciprocity, admiring and supporting exploration; by June 2006, she was ready to implement the return home phase of the Intervention Plan; as of June 2006, Appellant was “parenting above minimal parenting competency”; Appellant was emotionally responsive to Sabrina; Appellant was capable of nurturing Sabrina; she didn’t believe that Sabrina was at risk of harm or injury from

Appellant; and by late March or early April 2006, Appellant demonstrated the ability to pick up on Sabrina’s cues. (Vol. VIII, p. 3887; Vol. IX, pp. 4259-4260, 4268-4269, 4271, 4319-4320, 4383). Clearly, at the time the trial court terminated Appellant’s residual parental rights, Appellant had remedied substantially the conditions that led to or required continuation of Sabrina’s foster care placement. Reinforcing the conclusion that Appellant had remedied substantially the conditions that led to Sabrina’s foster care placement is the fact that the only persons qualified as an expert, who rendered an opinion regarding Appellant’s ability to parent as of June 2006, were Fern Levy, Kristen Rodriguez and Cheryl Weitz. (Vol. VI, pp. 2858-2867, 2882-2883, 2892, 2908-2909; Vol. VII, pp. 3289-3290, 3293-3294, 3297-3301, 3315-3316, 3320-3321; Vol. IX, pp. 4241-4242, 4246-4248, 4267-4279). In contrast, the Department presented no testimony from any person qualified as an expert on this issue. Therefore, the affirmance by the Court of Appeals of the trial court’s termination of Appellant’s residual parental rights is plainly wrong as a matter of law. Cf. C.S. v. Va. Beach Dep’t of Soc. Servs., 41 Va. App. 557, 570, 586 S.E.2d 884, 890 (2003) (reversing termination of parental rights under §

16.1-283(C)(2) where mother complied with or made substantial efforts towards remedying the conditions that led to child’s foster care placement except the conditions over which the mother had no control). III. SINCE APPELLANT COMPLIED WITH ALL OF THE REQUIREMENTS OF THE DEPARTMENT’S FOSTER CARE SERVICE PLAN HER RESIDUAL PARENTAL RIGHTS MAY NOT AS A MATTER OF LAW BE TERMINATED In C.S. v. Va. Beach Dep’t of Soc. Srvcs., a mother’s residual parental rights to her four children were terminated under 16.1-283(C)(2) by the trial court. 41 Va. App. 557, 586 S.E.2d 884 (2003). On appeal, the Court of Appeals reversed finding that the mother “complied or made substantial efforts towards remedying each of the conditions except those conditions over which she had no control.” Id. at 570, 586 S.E.2d at 890. Therefore, “Because [the] mother met the requirements of the January 16, 2001 Foster Care Service Plan, she achieved the program goal, which was to return the children to her home.” Id. In this case, the initial Foster Care Service Plan required Appellant to: participate in recommended therapeutic services; participate in visits with Sabrina; attend all court hearings; maintain regular contact with Leslie Moran; and cooperate with Support

Enforcement Services. (Vol. X, p. 4765). The initial Foster Care Service Plan also specified the following services that were to be provided to Appellant and of which she was expected to avail herself: supervised visits with Sabrina; weekly meetings with the CHIP nurse and the case manager to provide education on parenting, infant development, needs and bonding; a psychological evaluation; a parent/child assessment; any services recommended by the psychological evaluation or the parent/child assessment; couples therapy; a parenting class; and attending Sabrina’s medical appointments. (Vol. X, p. 4764-4765). It is undisputed that Appellant complied with all these requirements. Like the mother in C.S., since Appellant complied or “made substantial efforts towards remedying each of the conditions” that led to or required continuation of Sabrina’s foster care placement, Appellant achieved the return home goal of the Department’s Foster Care Service Plan. Therefore, as a matter of law, Appellant’s compliance with the Foster Care Service Plan precludes the termination of her residual parental rights. CONCLUSION The case law on the termination of parental rights is a sordid

chronicle of parents who abuse or neglect their children, parents who have substance abuse problems, parents who are incarcerated, parents who place their own needs before those of their children, parents who engage in inappropriate behavior. This is not such a case. All parties and witnesses acknowledge that Appellant is a loving and caring mother. Unfortunately, Appellant’s parenting skills are affected by her PDD-NOS. However, in an attempt to overcome this disability, Appellant cooperated fully and complied with all of the requirements imposed by the Department’s Foster Care Service Plan. In addition, Appellant agreed to, paid for and successfully participated in the Intervention Plan implemented by Cheryl Weitz and her team. Clearly, this case does not present the rare circumstances envisioned by this Court in Weaver that justify the termination of Appellant’s residual parental rights. The decision by the Court of Appeals is plainly wrong. Therefore, Appellant implores this Court to accept her appeal to reverse this miscarriage of justice.

Respectfully Submitted,

Nancy A. Hey By Counsel

Coan & Lyons By:____________________________ Carl A. S. Coan, III (VSB No. 23176) Sheila C. Salmon (VSB No. 28779) 1100 Connecticut Avenue, N.W. Suite 1000 Washington, D.C. 20036 (202) 728-1070 Counsel for Appellant

All references to Vol. ____, p. ____ are to the Joint Appendix filed in the Court of Appeals. Ms. Hey and Mr. Slitor were married in October 2005. (Vol. IX, p. 4463). The biological father of Sabrina is unknown since Sabrina was conceived through in vitro fertilization and the sperm donor was anonymous. (Vol. IX, p. 4456). Op. ___ refers to the Court of Appeals Memorandum Opinion filed on December 30, 2008. Similarly, Dr. Hass conceded that there are no scientific studies that conclude that a person with Asperger’s Syndrome cannot be a primary caretaker of a child. (Vol. II, pp. 640-641). As stated in the Department’s June 2005 initial Foster Care Service Plan, “[A] primary caretaker must be identified for Sabrina. The Department is exploring Mr. Slitor’s willingness and ability to assume this role....” (Vol. X, p. 4764). The locations to which the visits were moved were the sidewalk outside the Department’s building or a near-by café.

PAGE