Our Plight

1. The Court failed to give appropriate consideration to and grant custody of Sabrina to her relatives, specifically Christopher Slitor and her maternal grandmother, Louise Hey. It was established by a preponderance of the evidence that Christopher Slitor or Louise Hey were willing and qualified to receive and care for Sabrina; were willing to have a positive, continuous relationship with Sabrina; were committed to providing a permanent, suitable home for Sabrina; and, were willing and had the ability to protect Sabrina from abuse and neglect. Further, the preponderance of the evidence established that Louise Hey would submit herself to any terms and conditions which would promote Sabrina’s interest and welfare. The Department’s failure to follow through with its affirmative duty and to meet its burden of proof to investigate all reasonable options for placement of Sabrina with relatives, specifically the Department’s failure to explore many identified potential relative placements other than Louise Hey.

2. There was not clear and convincing evidence that the Department had met the requirements of Section 16.1-283(C)(2) of the Code of Virginia (1950, as amended).

3. There was not clear and convincing evidence that it was in the best interests of Sabrina to terminate Ms. Hey’s residual parental right to her. Further, the Court gave inappropriate weight to the “best interest” requirement over the other statutory criteria under Section 16.1-283(C)(2) of the Code of Virginia (1950, as amended).

4. There was not clear and convincing evidence that Ms. Hey, 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. The evidence established that Ms. Hey has substantially remedied the conditions (for example, feeding of Sabrina, basic care of Sabrina, and cooperation with the Department) which led to and required continuation of Sabrina’s foster care placement. The evidence established that Nancy Hey met or exceeded the minimal parenting standard in her care of Sabrina and that she completed all of the provisions of the foster care service plans in this matter.

5. There was not proof that Ms. Hey, without good cause, failed to or was unable to make substantial progress towards elimination of the conditions which led to or required continuation of Sabrina’s foster care placement in accordance with her obligations under and within the time limits or goals set forth in the foster care service plans filed with the Court or any other plan jointly designed and agreed to by Ms. Hey and a public or private social, medical, mental health or other rehabilitative agency. As a result, there was not prima facie evidence of the requirement of Section 16.1-283(C)(2) of the Code of Virginia (1950, as amended).

6. There was not clear and convincing evidence that the Department implemented reasonable, appropriate efforts on the part of social, medical, mental health or other rehabilitative agencies to assist Ms. Hey in remedying substantially the conditions which led to or required continuation of Sabrina’s foster care placement. Indeed, there is clear and convincing evidence that the Department failed in its duty to provide reasonable and appropriate efforts to assist Ms. Hey in remedying the conditions that led to Ms. Hey’s temporary relinquishment of Sabrina to the care of the Department.

7. There is a plethora of “good cause” (Section 16.1-283(C)(2)) in this case, including, but not limited to, the following:

A. Initially, during its control of this case which was from the date of removal (April 25, 2005) to December 16, 2005 (the date of Judge Wiggins Lyles’ correspondence which adopted the Intervention Plan proposed by Ms. Hey) (a period of 8 months out of 12 months referenced in § 16.1-283(C)(2)), the Department failed to implement the recommendations of its own expert, Dr. Hass, who recommended intensive home based services. The Department never implemented intensive home based services in this case.

B. Second, the Department failed to implement the recommendations of its second expert, Dr. Corbett, who recommended hands-on intensive homemaking services in order to determine whether Ms. Hey is able to learn and retain the skills required to care for Sabrina. The homemaker would also accompany Ms. Hey to visits in order to assist her in hands-on care for Sabrina.

C. The Department failed to implement any type of intensive services in this case on the part of social, medical, mental health or other rehabilitative agencies to assist Ms. Hey in remedying substantially the conditions which led to or required continuation of ]Sabrina’s foster care placement.

D. The Department failed to implement a contact/visitation schedule between Sabrina and Ms. Hey and Mr. Slitor which was designed to promote any level of attachment or bond between Sabrina and her parents. Between April 25, 2005 and December 31, 2005, Sabrina and her parents had contact with one another for approximately 29 hours (this equates to approximately 3.6 hours per month or less than 1 hour per week). The reality is that the bulk of this contact took place between April 25, 2005 and August 31, 2005 and that less than 5 hours of contact took place between Sabrina and Ms. Hey and/or Mr. Slitor between September 1, 2005 and December 31, 2005. The ]Department’s failure is further exacerbated by its knowledge in May 2005, and again in June 2005, from its own experts that this was going to be an area of difficulty for Ms. Hey because of her disability.

E. When the Department was confronted with ]Sabrina’s crying in the context of visits with Ms. Hey and Mr. Slitor, it failed to take appropriate steps to address the issue or to remedy the same and instead terminated visits without a basis to do so.

F. Despite its consistency with the reports of Drs. Hass and Corbett and without justification, the Department completely disregarded Dr. Anderson’s report of September 2005 and did not follow-up with her in any way. This represented a pattern on the part of the Department with respect to Ms. Hey’s retained experts.

G. The Department never implemented reasonable and appropriate efforts on the part of social, medical, mental health or other rehabilitative agencies to the end of remedying substantially the conditions which led to or required continuation of Sabrina’s foster care placement. The plan implemented by the Department from the date of removal to late December 2005 is not supported by any of the evidence presented in this matter. Indeed, the Department’s focus on Mr. Slitor as the possible primary caretaker for Sabrina was without justification and disregarded their obligation to Ms. Hey as Sabrina’s natural parent. Further, the Department’s designated service provider, Lizette Orr, was not qualified to provide services to this family. She did not have any training in the autism spectrum disorders, e.g., Asperger’s Syndrome or PDD-NOS. She lacked experience in working with families where the Department was involved. Despite being informed of Ms. ]Hey’s condition, Ms. Orr failed to take into account her condition with respect to the services that she was providing in this case. Despite ]Sabrina’s crying through the summer of 2005 and the same being painful to her, Ms. Orr did not go outside of her approach to this case and no one at the Department suggested to her that she should go outside of her approach until August 2005 (when she concluded that she was not being effective). Beyond the Department not knowing Ms. Orr’s credentials and Ms. Orr not being adequately educated, nor being sufficiently aware of the meaning and import of Ms. Hey’s disability in the context of the services she was to render in this case, Ms. Orr was absent for a significant period of time from the case; she was on sick leave for the month of July 2005 and until the third week of August 2005.

H. Despite having advanced warning from Drs. Hass and Corbett, the Department simply did not research, investigate and contract with any service providers, who were knowledgeable as to the pervasive developmental disorders and the impact of the same in the context of parenting an infant, to do the hands on parenting and bonding components between Ms. Hey and Sabrina.

I. By June 2005 (less then 2 months from the date of removal and less then a month from receipt of Dr. Hass’ and Dr. Corbett’s evaluations), the Department had written off Ms. Hey as a primary caretaker for Sabrina.

8. The Court’s admission of the ]Department’s Exhibit No. 1 (foster care service plans) over Ms. Hey’s objection on the basis that said documents contain hearsay and the admission of same was prejudicial to Ms. Hey.

9. The Court’s admission of the Department’s Exhibit No. 8B (Leslie Moran’s OASIS notes) over Ms. Hey’s objection on the basis that said documents contained hearsay and as being violative of the best evidence rule (Leslie Moran was called on direct examination by the Department and subject to cross-examination) and the admission of same was prejudicial to Ms. Hey.

10. The Court’s admission of the Department’s Exhibit No. 11B (CHIP progress notes) over Ms. Hey’s objection on the basis that said documents contained hearsay and the admission of same was prejudicial to Ms. Hey.

11. The Court’s admission of the Department’s Exhibit No. 18 (Foster ]Parent’s DVD disc) on the basis of relevance (a comparative analysis between Ms. Hey and her home and her relationship with Sabrina and the Foster Parents, their natural daughter and their home and their relationship with Sabrina is not a proper framework for analyzing the best interest criteria under Section 16.1-283(C) of the Code of Virginia (1950, as amended)).

12. The Court’s admission of the Department’s Exhibits No. 21 and 24 (correspondence dated November 14, 2006 and December 16, 2005 from Judge Ester Wiggins Lyles of the Juvenile and Domestic Relations District Court to the ]Parties’ counsel) over Ms. ]Hey’s objection on the basis that the same contain the opinions, impressions and findings of the J&DR Court and that the matter was on appeal to the Court and that the same was a de novo hearing and the admission of same was prejudicial to Ms. Hey.

13. The Court’s admission of the Department’s Exhibit No. 25B (Leslie Moran’s handwritten notes) over Ms. Hey’s objection on the basis that said documents contained hearsay, as being violative of the best evidence rule (Leslie Moran was called on direct examination by the Department and subject to cross-examination), and, as not being official business records and the admission of same was prejudicial to Ms. Hey.

14. The Court’s failure to rule on Ms. Hey’s Motion To Strike at the conclusion of the ]Department’s case and again at the conclusion of the presentation of evidence and prior to closing argument.

15. The Court’s permitting, over the objection of Ms. Hey, Dr. Robin Foster (a medical doctor called to testify about whether the neglect or abuse suffered by Sabrina presented a serious and substantial threat to her life, health or development) to testify regarding her concerns at the time of the hearing about either Ms. Hey and/or Sabrina based upon her review of limited records (notably the records of Drs. Hass and Corbett (mental health experts)) inasmuch as any such opinions were beyond the scope of her expertise.

16. The Court’s permitting, over the objection of Ms. Hey, the testimony of the Department’s representative, Leslie Moran, LCSW to stand and not be stricken in light of her failure to produce voluminous hand written notes made by her about this case in response to discovery propounded upon the Department and the Department’s ]counsel’s representation that she had provided open discovery in this case.

17. The Court’s permitting, over the objection of Ms. Hey, Janell Wolfe, Esquire (Sabrina’s former Guardian Ad Litem) to testify and express opinions in this matter. Such action was violative of the published Standards to Govern the Performance of Guardians Ad Litem for Children (September 1, 2003) and the same was prejudicial. The Court’s permitting Ms. Wolfe to testify in narrative form.

18. The Court’s permitting, over the objection of Ms. Hey, Violetta Battle, LCSW to testify in this matter inasmuch as the Department failed to produce documents of Violetta Battle in response to discovery propounded upon them and the Department’s counsel’s representation that she had provided open discovery in this case. The same was prejudicial.

19. The Court’s permitting, over the objection of Ms. Hey, Robert Marvin, Ph.D., to testify in this matter inasmuch as the Department failed to identify him as an expert in answer/response to discovery propounded upon them prior to the commencement of the trial and did not identify him as an expert in answer/response to previously propounded discovery during the course of the trial. Further, the Court permitting, over the objection of Ms. Hey, Dr. Marvin to testify in view of the fact that he had reviewed trial transcripts or been made aware of trial testimony in preparing to testify in violation of the rule on witnesses. The same was prejudicial.

20. The Court’s permitting, over the objection of Ms. Hey, Dr. Marvin to testify as to his conclusion that Ms. Hey has a disability inasmuch as said opinion was beyond the scope of his identified areas of expertise by the Department. The same was prejudicial.

21. The Court’s permitting, over the objection of Ms. Hey, Dr. Marvin to testify as to his review of the videos of the Foster Parents, their natural child and Sabrina (as presented by the Foster Parents) on the basis of relevance (a comparative analysis between Ms. Hey and her home and her relationship with Sabrina and the Foster Parents, their natural daughter and their home and their relationship with Sabrina is not a proper framework for analyzing the best interest criteria under Section 16.1-283(C) of the Code of Virginia (1950, as amended)). The same was prejudicial.

22. The Court’s permitting, over the objection of Ms. Hey, Dr. Marvin to testify as regards his critique of the intervention plan as designed and directed by Cheryl Wietz inasmuch as said opinion was beyond the scope of his designation. The same was prejudicial.

23. The Court’s permitting testimony to questions over Ms. Hey’s objections which questions and objections are set forth and preserved in the record.

24. The Court’s failure to use alternatives less drastic then termination of parental rights. Those alternatives are transferring custody of Sabrina to a relative or other interested individual or placement in permanent foster care.

25. The Court’s ruling has deprived Ms. Hey of a fundamental, constitutional liberty interest in the care, custody and management of Sabrina.

26. The Court’s ruling that “termination is in Sabrina’s best interest because, for over two years, she has been an integral part of a loving, nurturing foster family, which consists of persons who Sabrina consider her mother, J.D. Doliner, her father, Steve Kauffman, and a sister, who is also close to her in age, in addition to ]grandparents.” Transcript of June 1, 2007, p. 5. Approximately 12 months (June 2006 to June 2007) of the 26 months (from date of removal to the Court’s ruling) can be attributed solely to the legal process where there were no services being provided at all to Ms. Hey and Sabrina. Pruden v. Fairfax County Department of Human Development, 1997 Va. App. LEXIS 284 at 5 n. 3 (“The attenuation of the parent-child bond under these circumstances is not surprising; however, consideration of this ‘system-created’ new circumstance in deciding to terminate parental rights appears, at minimum, unjust.”). Approximately 9 months of the 26 months were controlled by the Department where the Department was not providing any services to Ms. Hey which were recommended by the Department’s experts or tailored to meet her condition of PDD-NOS.

27. The greater weight of the evidence establishes that many of the concerns about Ms. Hey’s ability to parent Sabrina as enunciated by Dr. Hass are not supported by any research in the field. Dr. Hass’ distinction between a primary caregiver/parent and a secondary caregiver/parent is a distinction without any substance. The Department’s own witness, Lizette Orr testified that secondary caretakers do all of the things e.g., feed their baby, diaper their baby, put their baby to sleep, interact with their baby or toddler, socially stimulate their baby or toddler by bringing other persons into their milieu, that the primary caretakers do.

28. The Court’s finding that “teaching by repetition, demonstration, charts were emphasized throughout the last two years.” Transcript of June 1, 2007, p. 7. Again, approximately 12 months (June 2006 to June 2007) of the 26 months (from date of removal to the Court’s ruling) can be attributed solely to the legal process where there were no services being provided at all to Ms. Hey and Sabrina. Second, the evidence establishes that none of the services provided by the Department from March 2005 to December 2005 were ever implemented with consideration of or tailored to Ms. Hey’s diagnosis of PDD-NOS.

29. The Court’s reliance in its ruling upon the finding that “Ms. Hey and Mr. Slitor were unwilling to get a live in nanny, which was suggested to them a number of times.” The Department’s suggestion of a live in nanny was not a requirement of any foster care service plan implemented by the Department and is an inappropriate consideration in any termination of residual parental rights hearing.

30. The Court’s reliance upon the Department’s and other witnesses’ position that a shorter period of time for a newborn was needed for return home in order to mitigate the harm to the child. Transcript of June 1, 2007, pp. 8-9.

31. The Court’s finding that “even with all of this training and education there were still safety incidents….” Transcript of June 1, 2007, p. 10. The greater weight of the evidence establishes that the few safety incidents testified to represented a normal risk of accident to any parent and not a further risk of abuse or neglect by Ms. Hey to Sabrina. Further, the Court’s finding discriminates against persons with a disability.

32. The Court’s finding that “they were still not ready for unsupervised visitation in June, 2006,” is contrary to the greater weight of the evidence. Transcript of June 1, 2007, p. 11. Cheryl Wietz and every member of the intervention team testified that they were prepared to move forward in an incremental fashion with unsupervised visitation as early as April 2006 but certainly as of June 2006. Indeed, Cheryl Wietz testified that she was prepared to move to Phase IV of the intervention plan (which was return home of Sabrina) in June 2006. Ms. Hey and Mr. Slitor had two overnights with Sabrina in June 2006 where they were solely responsible for the care of Sabrina even though an intervention team worker and a representative for the Department were present.

33. The Court’s ruling with respect to the petition for custody of Louise Hey wherein it states that and, in addition, at age eighty, Ms. Hey is not likely to be able to provide a permanent home for ]Sabrina” is tantamount to age discrimination on the part of the Court. Transcript of June 1, 2007, p. 13.

34. The Court’s finding that the Department had met by a preponderance of the evidence the requirements of Section 16.1-282.1 of the Code of Virginia (1950, as amended). Further, the Court’s failure to implement the relief provided for in Section 16.1-282.1(B)(2)(a) of the Code of Virginia (1950, as amended) was contrary to the evidence.

35. The Court’s ruling and reconsideration of its ruling during the course of the trial on the Foster Parents’ Motion For Reconsideration Of Right To “Otherwise Participate In The Proceeding” and for granting relief beyond that which was requested by the Foster Parents in their motion or not enforcing its ruling. Specifically, permitting the Foster Parents to be represented by counsel which is tantamount to being a party to the litigation (despite the fact that the Court had ruled prior to the commencement of the trial that the Foster Parents would not be made a party to the cause); permitting the Foster Parents’ counsel to file pleadings which were considered by the Court; permitting the Foster Parents’ counsel to question witnesses and then in excess of ten minutes (which was the amount of time requested by the Foster Parents); permitting the Foster Parents to make an opening or closing statement and then a closing statement in excess of ten minutes (which was the amount of time requested by the Foster Parents); and, in considering evidence presented by the Foster Parents in their closing brief which was not subject to cross-examination.