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Castillo v. Loudoun County Department of Family Services

Court of Appeals of Virginia

April 3, 2018

BRAULIO M. CASTILLO
v.
LOUDOUN COUNTY DEPARTMENT OF FAMILY SERVICES

          FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Steven E. Sincavage, Judge

          Kelly L. King (King Downing PLC, on briefs), for appellant.

          Sandra A. Glenney, Assistant County Attorney; Alexander E. Morgan, Guardian ad litem for the infant children (Loudoun County Attorney's Office; Hartsoe & Morgan, P.L.L.C., on brief), for appellee.

          Present: Chief Judge Huff, Judges Humphreys and O'Brien Argued at Fredericksburg, Virginia

          OPINION

          GLEN A. HUFF CHIEF JUDGE

         Braulio M. Castillo ("appellant") appeals the rulings of the Circuit Court of Loudoun County ("circuit court") finding that he abused and neglected his minor children under Code § 16.1-228(1) and (5) and terminating his residual parental rights to those children pursuant to Code § 16.1-283(B) and § 16.1-283(E)(ii). On appeal, appellant challenges certain of the circuit court's evidentiary rulings, the circuit court's decision to consider the abuse and neglect issue during the same proceeding as the termination issue, its decision to hold evidence open pending the final sentencing order in appellant's criminal trial, and the sufficiency of the evidence to support both the abuse and neglect and termination rulings. For the following reasons, this Court affirms the circuit court's decisions.

          I. BACKGROUND

         "When reviewing a trial court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003) (citing Wright v. Wright, 38 Va.App. 394, 398, 564 S.E.2d 702, 704 (2002)). So viewed, the evidence is as follows.

         Events Leading to Removal

         On November 1, 2013, the circuit court issued a protective order prohibiting appellant from having contact with his wife, Michelle Castillo, except by agreement or as necessary to facilitate visitation exchanges with their children. Appellant and Ms. Castillo had been married for seventeen years when the protective order was entered, and they were parents to four minor children. Appellant is the biological father of J.C., born July 9, 2004; Z.C., born October 22, 2007; and B.C., born July 1, 2010. The fourth child, V.C., was born on February 7, 2003 and adopted by the couple as an infant. The basis of the protective order was appellant's repeated verbal, physical, and sexual abuse of Ms. Castillo, often in the presence of one or more of the children. Pursuant to the order, appellant had visitation with the children on alternate weekends and every Wednesday from 4:00-7:00 p.m.

         Ms. Castillo picked up the children after their regularly scheduled visitation with appellant on the evening of Wednesday, March 19, 2014. On the following morning, March 20, appellant received a telephone call indicating that the children could not find their mother. Although the protective order prohibited appellant from having contact with Ms. Castillo or the children outside of scheduled visitation periods or other agreed times, appellant went to Ms. Castillo's house, looked around the house for Ms. Castillo, dressed the children, and took all but the youngest to school. The youngest remained with appellant.

          The Loudoun County Department of Family Services ("DFS") received a report of suspected abuse or neglect of the children later that day. The report indicated that law enforcement officers had found Ms. Castillo deceased that morning, hanging in the basement bathroom. The report also advised that because appellant was a person of interest in the investigation of Ms. Castillo's death, the children should not be returned to appellant's care. Child Protective Services ("CPS") assumed custody of the children the same day and placed them with David and Stephanie Meeker, friends of the Castillo family, pursuant to a safety plan developed with appellant's consent.[1]

         Proceedings Before the Juvenile Court

         DFS filed petitions with the Loudoun County Juvenile and Domestic Relations District Court ("JDR court") on March 28 alleging abuse and neglect of the children. The JDR court entered emergency removal orders that same day granting DFS temporary legal custody of the children. Following a preliminary removal hearing on April 4, the JDR court entered preliminary removal orders finding that each child had been abused or neglected and awarding temporary legal custody to DFS. Meanwhile, on April 1, appellant was charged with the first-degree murder of Ms. Castillo, breaking and entering with intent to commit murder, and violation of the protective order.

         A series of foster care plan reviews and permanency planning hearings ensued. Although DFS's original goal for the children was to return them home, DFS changed that to a concurrent goal of returning home or adoption in December 2014.[2] The JDR court approved the concurrent goals as an interim plan in permanency planning orders dated January 20, 2015, and set a subsequent hearing for September 8, 2015. DFS filed updated foster care plans and petitions for permanency planning hearings setting forth an exclusive goal of adoption on August 14, 2015. The JDR court postponed this second permanency planning hearing pending resolution of the criminal case against appellant. On June 16, 2016, a jury found appellant guilty of the first-degree murder of Ms. Castillo, breaking and entering with the intent to commit murder, and violating the protective order.[3] The next day, DFS filed petitions to terminate appellant's residual parental rights with respect to each of the children pursuant to Code § 16.1-283(B) and 16.1-283(C)(2). DFS amended these petitions to include Code § 16.1-283(E)(ii) and 16.1-283(E)(iv) as additional grounds for termination on June 22, 2016. The JDR court ultimately entered orders terminating appellant's residual parental rights to the children, which appellant appealed to the circuit court on July 1, 2016.

         The appeal of the dispositional orders had been originally scheduled for November 18-19, 2014, but following two continuances requested by DFS, was rescheduled for September 19-23, 2016. After appellant noted his appeal of the termination orders, DFS moved on July 7, 2016 to combine the appeals of the dispositional and termination orders into a single proceeding. Appellant objected to combining the hearings because the criminal case had not yet concluded, but the circuit court nevertheless granted the motion to combine. On August 26, 2016, appellant moved to stay the combined appeal "until such time as [appellant] is sentenced and a final order is entered in the underlying criminal matter." The motion elaborated that any termination under Code § 16.1-283(E) could not take place until appellant had concluded any post-trial motions and exhausted the availability of appeal. The circuit court denied this motion.

          Circuit Court Trial

         The circuit court trial commenced on September 19, 2016 and continued until September 23, then recessed until October 31, 2016 when it became apparent that additional time would be necessary for the proceeding.

         During the trial, DFS sought to introduce Ms. Castillo's testimony during the 2013 protective order hearing in the circuit court. Appellant objected on hearsay grounds, and DFS contended that the testimony was admissible under the former testimony exception codified at Virginia Rule of Evidence 2:804(b)(1). After hearing argument, the circuit court admitted the evidence stating, "I find that the requirements under 2:804(a)(1) [sic] have been met, and that . . . the matter in the transcript was family abuse, and certainly an issue in these cases is the issue of abuse within the family."

         DFS also called appellant to testify during its case-in-chief, and questioned him regarding certain notes contained in his smartphone and labeled as privileged communications. Counsel for appellant objected on attorney-client privilege grounds, and the circuit court sustained the objection. DFS later questioned Mark McCaffrey, a detective with the Loudoun County Sheriff's Office, about how he obtained appellant's smartphone during the criminal investigation of appellant. McCaffrey testified that he gained possession of the phone while executing a search warrant of appellant's residence. Although appellant initially refused to provide the phone's passcode, he soon relented and revealed the code to McCaffrey, stating "See, I'm being cooperative." Based on this additional information, DFS sought once again to introduce the notes contained on appellant's phone. This time, the circuit court ruled the notes admissible and found that appellant waived any privilege by giving the passcode to the detective.

         Dr. John Walker testified during DFS's case-in-chief as an expert in the field of human development focusing on youth with trauma and attachment issues. While describing the children's bond with the Meekers, Walker testified that the children said "that [the Meekers' home] feels safe, that it feels like home." Appellant objected to this testimony on hearsay grounds, and DFS replied that the children's statement was admissible as the basis of his expert opinion regarding their bond with the Meekers. The circuit court overruled the objection and admitted the testimony for the limited purpose of demonstrating the basis for Walker's opinion regarding the bond.

         DFS additionally presented evidence that it considered potential relative placements for the children. Immediately after the emergency removal in March 2014, DFS had considered placing the children with relatives, but all relatives known to DFS at that point were staying with appellant in appellant's residence. DFS later developed a genogram of the family and mailed letters to several of the children's relatives advising them that the children were in foster care and that DFS was considering relative placements. DFS set up visitations between the children and various relatives, and interviewed some of these relatives as candidates for placement. Among the relatives under consideration, several did not believe that appellant had murdered Ms. Castillo or gave testimony at the criminal trial that contradicted the children's testimony, others lacked appropriate housing or had health concerns, one relative had strained interactions with the children, and another indicated that she would be willing to be a placement for the first time during the circuit court trial. DFS personnel testified that because two of the four children in its custody were expected to, and actually did, testify against appellant in his criminal trial, it placed significant weight on relatives' attitudes toward appellant in assessing the appropriateness of relative placements.

         At the conclusion of its case-in-chief, DFS moved to hold evidence open in order to introduce the final order from appellant's criminal case, including appellant's sentence. On the seventh day of trial, November 1, 2016, the circuit court granted DFS's motion over appellant's objection. The circuit court entered the final order in appellant's criminal case on December 30, 2016, sentencing him to a term of life imprisonment plus sixteen years. The civil trial reconvened for an eighth day on April 25, 2017, during which DFS offered the sentencing order into evidence and rested. Appellant then moved to strike the evidence, which he renewed after presenting his case-in-chief and after DFS called rebuttal witnesses. In each of his motions, appellant contended that the evidence was insufficient to support a finding of abuse and neglect under Code § 16.1-228 and that DFS had not established by clear and convincing evidence that termination was appropriate under Code § 16.1-283(B), (C), or (E). The circuit court denied both motions.

         On August 11, 2017, the circuit court ruled that the children had been abused and neglected and terminated appellant's parental rights pursuant to Code § 16.1-283(B) and (E)(ii). This appeal followed.

         II. STANDARD OF REVIEW

         This Court employs a familiar standard of review on appeal of a circuit court's decision to terminate parental rights:

When addressing matters concerning a child, including the termination of a parent's residual parental rights, the paramount consideration of a trial court is the child's best interests. On review, "[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests."

Logan v. Fairfax Cty. Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 463 (1991) (quoting Farley v. Farley, 9 Va.App. 326, 329, 387 S.E.2d 794, 796 (1990)) (citations omitted). "In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." Id. (quoting Farley, 9 Va.App. at 328, 387 S.E.2d at 795). "The trial court's judgment, 'when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.'" Id. (quoting Peple v. Peple, 5 Va.App. 414, 422, 364 S.E.2d 232, 237 (1988)). "In its capacity as factfinder, therefore, the circuit court retains 'broad discretion in making the decisions necessary to guard and to foster a child's best interests.'" Toms v. Hanover Dep't of Soc. Servs., 46 Va.App. 257, 266, 616 S.E.2d 765, 769 (2005) (quoting Farley, 9 Va.App. at 328, 387 S.E.2d at 795). Additionally, "the admissibility of evidence 'is within the broad discretion of the trial court, and an [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of discretion.'" Surles v. Mayer, 48 Va.App. 146, 177, 628 S.E.2d 563, 578 (2006) (quoting Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988)).

         III. ANALYSIS

         Appellant raises ten assignments ...


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