Dung Thi Thach and Carlos Mendoza v. Arlington County Department of Human Services

Citations: 63 Va. App. 157; 754 S.E.2d 922; 2014 WL 1011414; 2014 Va. App. LEXIS 104Docket: 1309134

Court: Court of Appeals of Virginia; March 18, 2014; Virginia; State Appellate Court

Original Court Document: View Document

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Judges Humphreys, McCullough, and Senior Judge Bumgardner presided over the appeal by Dung Thi Thach and Carlos Mendoza regarding the Arlington County Circuit Court's termination of their parental rights to their son, J.M. The appellants challenged the sufficiency of evidence supporting the claim that Mendoza had not remedied the conditions leading to J.M.'s placement in foster care, as outlined in Code § 16.1-283. While both parents appealed, the court focused solely on Mendoza, as Thach did not assign error regarding her own rights termination, thus waiving her arguments.

The background reveals that DHS intervened in August 2010 due to allegations of neglect and abuse concerning J.M. The investigation uncovered severe conditions, including Thach's substance abuse and inadequate care arrangements, leading to a protective order in March 2011. Although DHS provided various services to assist the family, Thach did not comply, resulting in the J&DR court's decision to remove J.M. from her custody in June 2011. A foster care plan was subsequently established, aimed at reunification, contingent upon Thach meeting specific requirements such as mental health compliance, stable employment, abstinence from drugs, parenting education, and secure housing.

Mendoza was not accused of abuse or neglect regarding his son J.M., who was removed from Thach's custody. His first engagement with the Department of Human Services (DHS) occurred on October 6, 2011, during a visitation with J.M. He disclosed that he had recently returned to Virginia from Arizona and was in the process of obtaining a work permit and legal residency due to previous fears of deportation. By late October, Mendoza had moved back to Arizona but continued visitations in November and December 2011, with DHS communicating with him through Thach.

In early 2012, Mendoza moved in with Thach to care for their newborn son J.T., while Thach worked. Mendoza informed DHS of his efforts to secure a work permit but was hesitant to seek employment for fear of jeopardizing his application. J.M. began overnight visits with Mendoza and Thach in May 2012, developing a loving relationship with both boys, as noted in a June progress report praising Mendoza's active and attentive parenting.

Despite recommendations for parenting education and home-based services by DHS, Mendoza failed to complete the classes by September 2012, and communication difficulties persisted. Moreover, visits with J.M. were suspended due to Thach's drug screening failures and subsequent jail sentence, prompting a safety plan that restricted Thach's unsupervised time with J.T. 

On September 12, 2012, J.M.'s social worker recommended shifting from a reunification goal to adoption, citing the couple's cancellation of visitations and Mendoza's incomplete parenting classes. A meeting to discuss alternative plans for J.M. was never scheduled due to Mendoza's absence. On November 19, 2012, the J&DR court approved the adoption goal but postponed the termination hearing to allow Mendoza additional time to comply with the service plan, mandating DHS to assist him but not Thach.

In December 2012, Mendoza completed a parenting education program lasting eight to ten weeks and underwent a psychological evaluation mandated by the J&DR court in January 2013, with the report filed in March 2013 recommending home support. However, the Department of Human Services (DHS) expressed concerns regarding Mendoza's lack of insight into Thach's mental health and substance abuse issues, particularly as Mendoza believed Thach did not have a substance abuse problem and felt comfortable with her caring for their children.

On January 22, 2013, a social worker filed an affidavit to terminate Mendoza's parental rights, noting that the only changes since the November hearing were his completion of parenting classes and reported financial difficulties with rent and utilities. Thach moved out by March 13, 2013, and the J&DR court terminated both parents' rights on March 14, 2013, citing Code § 16.1-283(C)(2). Though DHS had no significant concerns about Mendoza's ability to care for the children, they highlighted his failure to recognize Thach's substance abuse as a critical issue affecting child safety.

Mendoza acknowledged his lack of recognition of Thach's substance abuse at the J&DR hearing, but during the June 10, 2013 circuit court hearing, he testified that Thach's departure was motivated by his desire to regain custody of his children and admitted she had a substance abuse problem. He expressed a willingness to do whatever necessary to regain custody, stating he did not foresee Thach having a role in their lives at that time and outlined his commitment to being a dedicated parent.

The record indicates that Mendoza has never abused or neglected his children and has not used drugs. After Thach's departure, DHS found no issues with the suitability of Mendoza's home for children, and they expressed confidence in his ability to care for J.T., his younger son. Mendoza has been living with and caring for J.T. since March, initiated visits with J.M. without Thach, and demonstrated competency in managing J.M.'s asthma medications.

Despite not completing all recommended home-based services, Mendoza was participating in some services at the time of the circuit court hearing. He testified about his stable employment in drywall installation for over six months and his financial situation, noting he earns between $1,300 and $1,400 bi-weekly, pays $1,200 in rent, and that Thach's name remains on the lease despite her absence from the residence.

The circuit court terminated Thach's parental rights, describing the decision as straightforward, and subsequently assessed Mendoza's parental rights. While acknowledging Mendoza's desire to care for his children, the court criticized his late involvement in the case, noting that he only recognized Thach’s inability to care for the children just before the termination trial. The court expressed concern over Mendoza’s capacity to provide stability and good judgment, citing his lack of a valid lease and potential issues related to his illegal alien status, which could hinder his ability to secure housing. Additionally, both Mendoza and Thach failed to utilize available rent subsidies and home-based services that could have supported Mendoza in caring for his children. The court found Mendoza's credibility questionable due to inconsistencies in his testimony regarding his employment and presence in relation to the children. Mendoza also missed opportunities to visit with J.M. and was deemed unaware of J.M.'s medical appointments, which the court rejected. Ultimately, the court concluded that Mendoza could not provide a stable home for J.M., who was thriving in foster care, and stated that there was insufficient evidence to support returning him to Mendoza’s care.

In terms of the standard of review, circuit courts hold broad discretion in decisions regarding a child's welfare, with the presumption that they thoroughly evaluated the evidence and prioritized the child's best interests. On appeal, the evidence is viewed favorably towards the prevailing party in the circuit court, and the termination decision is upheld unless clearly erroneous or unsupported by evidence. Thus, the court's judgment to terminate Mendoza's parental rights will not be reversed unless the evidence, viewed in favor of the Department of Human Services, fails to substantiate it.

To terminate residual parental rights under Code § 16.1-283(C)(2), a trial judge must conduct two inquiries: (i) determine if termination serves the child's best interests based on clear and convincing evidence, and (ii) assess whether the Department of Human Services (DHS) has proven the requirements of subsection (C)(2). This process is intended to protect both parental and child rights and must be strictly adhered to before severing the parent-child bond.

In evaluating the child's best interests, the court must consider various factors, including the child's and parent's physical and mental conditions, their relationship, the child's needs, and the parent's role in the child's upbringing. The second prong assesses whether the conditions leading to foster care have been remedied. Termination can occur only if the court finds that DHS provided reasonable services to help the parent address these conditions, and the parent failed to make substantial progress without good cause within a twelve-month timeframe from the child's placement in foster care.

Failure to meet obligations outlined in a foster care plan serves as prima facie evidence of the parent's inability to remedy the conditions. Thus, termination decisions focus on the parent's unwillingness or inability to make necessary changes, rather than the severity of the initial issues. The twelve-month limit aims to prevent prolonged foster care situations and promote timely resolutions by the court and DHS.

In L.G. v. Amherst Cnty. Dep't of Soc. Servs., the court allows consideration of evidence beyond the twelve-month period to assess a child's best interests. The circuit court has discretion to weigh a parent's progress against the child's welfare, potentially favoring termination of rights even with some parental progress. This case is unique as the parent, Mendoza, was not involved in the neglect that led to J.M.'s foster care placement and was not residing with J.M. at that time. The initial removal was due to J.M.'s mother's substance abuse and inadequate childcare. Mendoza faced concerns regarding his ability to protect J.M. due to his lack of awareness of the mother's issues.

Despite Mendoza's limited compliance within the statutory twelve-month period, he showed significant advancement by the June 2012 hearing, having completed parenting classes and begun home-based services. Services for him commenced only eleven months post-placement, which contributed to the J&DR court's decision to extend the termination hearing. By June 2012, Mendoza was the sole caretaker for another child, J.T., with DHS reporting adequate care and no concerns about his capability as a parent. The Supreme Court emphasizes the rarity of severing parental rights and underscores the importance of preserving the parent-child relationship whenever feasible.

Circuit court judges have significant discretion in determining a child’s best interest, but constitutional requirements mandate more than just showing a child's best interest for parental rights termination. Natural parents maintain a fundamental liberty interest in their children's care, which persists even when they are not ideal parents or have temporarily lost custody. If evidence suggests positive parent-child relationships exist, the state's interest should favor preserving these familial bonds. In Mendoza's case, the circuit court's decision to terminate his parental rights based on the belief that J.M.'s foster parents would provide more stability was inappropriate. Concerns regarding Mendoza's future stability and delayed involvement with DHS were insufficient to meet the clear and convincing evidence standard required for termination. Mendoza was not obligated to compensate for Thach's shortcomings; the evaluation of his parental rights should be independent. At the time of the hearing, Mendoza was actively engaged in DHS-recommended services, provided a satisfactory home for his younger son, and had removed the neglectful parent from the situation. The circuit court's reliance on Mendoza's immigration status and employment concerns as grounds for potential future inadequacy was deemed speculative and premature. Mendoza was in the process of resolving his immigration issues, and there was no evidence indicating he was unable to provide for his children. The statute governing parental rights termination requires that all reasonable remedies be exhausted and demands clear evidence for such a drastic measure. Ultimately, the court affirmed the termination of Thach's rights but reversed the termination of Mendoza's rights concerning his son J.M., citing insufficient evidence to support the decision.