Tag Archives: Court of Appeals

Court of Appeals Hands Devastating Blow to Arlington Department of Human Services

1 Apr

In a decision of March 18, 2014, the Court of Appeals rejected the Department of Human Services attempt to terminate the parental rights of Carlos Mendoza.   The case is Dung Thi Thach v. Arlington Cnty. Dep’t of Human Servs. (Va. App., 2014).     The Arlington DHS did their typical attempt to terminate a parent’s rights as if the burden were on the parent to show why they should not be terminated.    Specifically, the Arlington DHS view that a child is better off in foster care than with their parents, was outrightly rejected.   The Court of Appeals said:

The Supreme Court has repeatedly emphasized that “‘[w]hile it may be occasionally necessary to sever the legal relationship between parent and child, those circumstances are rare.'” Tackett, 62 Va. App. at 320, 746 S.E.2d at 521 (quoting Lowe v. Dep’t of Pub. Welfare, 231 Va. 277, 280, 343 S.E.2d 70, 72 (1986)). “‘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. While circuit court judges are vested with considerable deference in determining a child’s best interest, “[i]t is clear that the Constitution requires more than a mere showing of the child’s best interest to terminate parental rights.” Copeland v. Todd, 282 Va. 183, 199, 715 S.E.2d 11, 20 (2011). “‘The fundamental liberty interest of natural parents in the care, custody and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody . . . to the State.'” Crawley, 47 Va. App. at 581, 625 S.E.2d at 674 (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). “If there is ‘reason to believe that positive, nurturing parent-child relationships exist, the [state’s] parens patriae interest favors preservation, not severance, of natural familial bonds.'” Id. (quoting Santosky, 455 U.S. at 766-67). Thus, the circuit court could not terminate Mendoza’s rights because it felt that J.M’s foster parents could provide more stability than Mendoza. See Copeland, 282 Va. at 199, 715 S.E.2d at 19-20 (the state cannot “‘infringe on the fundamental right of parents . . . simply because a state judge believes a better decision could be made'” (quoting Troxel v. Granville, 530 U.S. 57, 72-73 (2000))).

Representing the Arlington DHS in this devastating loss was Jason McCandless.    The attorney representing Mendoza was Mark S. Thrash; G. Rex Flynn, Jr.; The Flynn Law Firm, PLLC.   Congratulation to both Mr. Thrash and his client, Mr  Mendoza.   Kudos to the Court of Appeals for getting this one right.


The Age of Discretion: Used by Arlington DHS and GAL to Destroy the Children that It Was Meant to Protect

28 Sep

A recently published decision of the Court of Appeals of Virginia of the Arlington Case (Tackett/O’Brien Heffernan v Arlington Department of Human Services1519124) highlighted a serious shortcoming of the “child protection” system of Virginia.   In Virginia, the “age of consent” or “age of discretion” (i.e, the age at which a child can object to being adopted is 14; :Code § 16.1–283(G); and § 63.2-1202), while in Maryland (just across the river), the age is 10. (Md Fam. Law § 5-338(3))

In this published case, Arlington DHS and GAL wanted to adopt out a child, who was at the time of the hearing just under the age of consent.  So, using the “ends justify the means,” the GAL and Arlington DHS strongly advocated against the child (A.O.) and sought to have the child deemed incompetent to provide consent.   In other words, they attack the child’s character to achieve their objective of adopting out the child — even over the child’s and her family’s objections.   It is a malicious practice, as evidenced in this recent decision by the Court of Appeals.   The child, often without being given her own attorney to guide and represent her, is powerless against the CPS and GAL who turn use all of the taxpayer-funded resources of the government (including their “experts”) against child.

Read the decision yourself, and see how Arlington taxpayer dollars were used by Arlington CPS and one GAL to pounce on this child who they were supposed to protect and how they also viciously attacked her caring family:  Tackett/O’Brien Heffernan v Arlington Department of Human Services1519124  Unfortunately, the lazy Judge Kendrick in the case ignored the evidence at trial, and read as his “findings of fact” word-for-word from an affidavit written by Arlington DHS Supervisor Sherri Brothers for, and filed in, the JDR court.  That affidavit was never presented at trial as anyone’s testimony. (read the passage about the lack of a trial “de novo” 1519124).   Trial judges, no matter how incompetent, are given broad discretion, thus even if you have the facts on your side, the court of appeals almost always affirms the trial judges ruling.

Here is what the Court of Appeals said in its published decision (as it was published):

2. Age of Discretion of A.O.

Mother next argues that the circuit court

abused [its] discretion and committed reversible error [when it] ruled that the minor child lacked the capacity, information, intelligence and judgment to exercise her veto power in the termination of her mother’s and grandmother’s parental rights. This ruling was erroneous in that the minor child demonstrated an understanding of the court process, understood that she might have a veto, was a strong advocate for herself, and was recognized by the court to have the capacity to make decisions about what church to attend.

Code § 16.1–283(G) states that “residual parental rights shall not be terminated if it is established that the child, if he is 14 years of age or older or otherwise of an age of discretion as determined by the court, objects to such termination.” If the child is younger than fourteen,

the determination of whether or not the child has reached an “age of discretion” is committed to the sound discretion of the trial court. However, if the evidence proves that a child is “sufficiently mature to have intelligent views and wishes on the subject” of the termination proceeding, then the trial court should conclude that a child who is younger than fourteen has reached the “age of discretion.” When determining whether a child is mature enough to have intelligent views and wishes on the subject, the trial court should consider all of the circumstances, including the “capacity, information, intelligence, and judgment of the child.” The trial court’s determination will be reversed on appeal only for an abuse of discretion.

Hawks v. Dinwiddie Dep’t of Soc. Servs., 25 Va.App. 247, 253, 487 S.E.2d 285, 288 (1997) (internal citations omitted). This Court said that the “focus of the inquiry is whether the child, regardless of how old he or she may be, is mature enough to intelligently consider the circumstances and ramifications of the termination proceeding.” Id. at 255, 487 S.E.2d 285, 487 S.E.2d at 289.

When asked to consider whether A.O. was of an age of discretion, the circuit court stated,

The Court does have a vivid recollection of the interaction that this Court saw with the questions that were posed to her. I watched her very carefully. And it’s a shame, it’s an absolute shame, that what she has been put through for the last 2 years by her mother, by her sister, by her grandmother, by Mr. Manship, and all these other problems that have been unnecessarily caused. It has affected her capacity, her information, her intelligence, and her judgment. It’s this Court’s belief that because of the interaction by her grandmother and others that she has, as some say, been “drinking the Kool–Aid.” I think she’s been manipulated. She does not have veto power as far as this Court is concerned, as she has not reached the age of discretion.

Evidence in the record supports the court’s conclusion that A.O. has been manipulated and is not otherwise of an age of discretion. A.O. expressed sadness when she had to leave the Burka family. After a few months with the Burns family, A.O. reported in therapy that she enjoyed her time at her foster home and liked going on outings and trips with the Burns family, and liked their four dogs. In December 2011, after nine months with the Burns family, A.O. reported to her therapist that she liked her foster home placement and enjoyed living with the Burns. She reported a positive connection with her foster family, and expressed her desire to remain in the home because she felt stable. After she was removed from the Burns family, she shared with the therapist her hopes to return to the Burnses’ home. A.O. also expressed to her therapist confusion and anger towards her biological family and did not understand her family’s motivation to regain custody of her. A.O.’s anger was focused on mother and grandmother. However, A.O. testified at the hearing, in mother’s and grandmother’s presence, that she did not like anything about the Burkas or Burnses except going to the movies, and she wanted to live with mother or grandmother. A.O. also testified that at her age she did not need any guidance, only love, further demonstrating her lack of judgment.

In February 2011, sixteen months before the circuit court hearing, a clinical psychologist evaluated A.O. and noted that “her judgment and insight appeared impaired” and she “has retreated into a world of fantasy and escapism” and has resorted to lying as “an automatic self-protective mechanism.” In August 2011, a therapist noted that A.O. “reports feeling torn between what her biological family tells her and what she feels.” In February 2012, A.O. reported that she behaves in a manner she thinks her biological family wants her to behave and she feels her family wants her to act out. The therapist concluded that A.O. was unable to make the connection that her behaviors lead to consequences.

Based on the above evidence, the circuit court did not abuse its discretion in finding that A.O. was not of an age of discretion to veto the termination of her mother’s parental rights.

– Tackett/Heffernan v Arlington Department of Human Services

The irony is that the child that the Court of Appeals referred to as “A.O.”  is now over 14 years old.   Also ironic, A.O. hadn’t been in the custody of her family for almost two years at the time that the Judge made this evaluation!   So, how could she have been influenced by her family when the only things that could have controlled her thinking for two year were Arlington DHS and her GAL?

Will the GAL and Arlington DHS respect her opinion now that she is over 14?    Could that child even express an independent opinion given that she is has been under the GAL’s and Arlington DHS’s undue influence and control for almost three years?   No.

This is the type of behavior by government agents you would expect in a third world dictatorship country that does not serve its citizenship, not in the Commonwealth of Virginia.