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Thach v. Arlington County Dept. of Human Services

Court of Appeals of Virginia

March 18, 2014

DUNG THI THACH and Carlos Mendoza

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[Copyrighted Material Omitted]

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(Mark S. Thrash; G. Rex Flynn, Jr.; The Flynn Law Firm, PLLC, on brief), for appellants. Appellants submitting on brief.

(Jason L. McCandless, Assistant County Attorney; Phong T. Nguyen, Guardian ad litem for the infant child; Office of the County Attorney, on brief), for appellee. Appellee and Guardian ad litem submitting on brief.

Present: HUMPHREYS, McCULLOUGH Judges and BUMGARDNER Senior Judge.


[63 Va.App. 161] Dung Thi Thach (" Thach" or " mother" ) and Carlos Mendoza (" Mendoza" or " father" ) jointly appeal the Arlington County Circuit Court's (the " circuit court" ) decision to grant the Arlington County Department of Human Services's (" DHS" ) petitions to terminate their residual parental rights with regard to their son (" J.M." ). Appellants' single assignment of error is " that the evidence was insufficient to show by clear and convincing evidence that the Petitioner, Carlos Mendoza, failed to substantially remedy the conditions that brought his son, J.M., into [foster] care within the provisions of [ ] Code ยง 16.1-283."

[63 Va.App. 162] As a preliminary matter, we note that although both Thach and Mendoza jointly appealed the circuit court's decision to terminate their parental rights, appellants only assign error to the circuit court's termination of Mendoza's parental rights. Consequently, notwithstanding the style of the case and the fact that Thach argues that the circuit court erred in terminating her parental rights, we do not consider her arguments. Rule 5A:20(c); see Fox v. Fox, 61 Va.App. 185, 202-03, 734 S.E.2d 662, 670 (2012) (an issue is waived when it is not included in appellant's assignment of error).


" On appeal from the [denial of a petition for the] termination of parental rights, this Court is required to review the evidence in the light most favorable to the party prevailing in the [trial] court." Tackett v. Arlington Cnty. Dep't of Human Servs., 62 Va.App. 296, 303, 746 S.E.2d 509, 513 (2013). Therefore, viewing the evidence in the light most favorable to DHS, the evidence establishes the following.

A. J.M.'s Initial Placement in Foster Care

In August 2010, DHS began to receive complaints that Thach was physically neglecting her son J.M., born December 4, 2009.[1] After an investigation, DHS reported that J.M. was being physically abused because the family was facing eviction, the utilities had been disconnected, Thach was under the influence of substances while caring for J.M., and was leaving him with inadequate caregivers. At that time, J.M. was in the

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sole custody of Thach. Thach reported that J.M.'s father, Mendoza, did not live with them as he had been deported to Mexico. Thach refused to give DHS any contact information for Mendoza. DHS obtained a protective order in March 2011. DHS provided the family services to prevent J.M.'s removal, including mental health services for Thach, housing [63 Va.App. 163] and employment services, and daycare services. Thach failed to comply with DHS's recommendations.

The Arlington County Juvenile and Domestic Relations District Court (the " J & DR court" ) granted DHS's petition to remove J.M. from Thach's custody on June 29, 2011. Thach had failed to make appropriate child care arrangements for J.M.— she left him with individuals whom she could not provide DHS with basic information for, such as last names or telephone numbers. In August 2011, the goal of DHS's first foster care plan was to return J.M. to Thach's custody. The plan required Thach to complete certain requirements before J.M. could be returned to her care, which included compliance with mental health services, maintain a source of income, refrain from drug use, receive parenting education, and obtain stable housing.

B. Mendoza's Involvement with DHS While J.M. was in Foster Care

Both parties acknowledge that there have never been any accusations that Mendoza abused or neglected J.M., or was in any way involved with the circumstances requiring J.M.'s removal from Thach's custody. DHS's first contact with Mendoza was on October 6, 2011 when Mendoza accompanied Thach to a scheduled visitation with J.M. At that visitation he told DHS that he had been living and working in Arizona but had returned to Virginia where he was living with his maternal aunt. He said that the reason for the delay in initially seeing his son was that he was afraid of being deported again; however, he now had begun the legal process for obtaining a work permit and legal residency in the United States. At the October 6, 2011 meeting with DHS, Mendoza informed DHS that he was also the biological father of Thach's then unborn child. By the October 25, 2011 status hearing, Mendoza had moved back to Arizona but continued to attend visitations with J.M. in November and December 2011. DHS did not have any ...

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