Edith Rivera v Roanoke City DSS

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Humphreys
EDITH RIVERA
MEMORANDUM OPINION*
v. 	Record No. 0727-00-3 	PER CURIAM
JULY 5, 2000
ROANOKE CITY DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Eric Roland Spencer, on brief), for
appellant. 	Appellant submitting on brief.
(William M. Hackworth, City Attorney;
Allen T. Wilson, Assistant City Attorney, on
brief), for appellee. 	Appellee submitting on
brief.
Edith Rivera appeals the decision of the circuit court
ordering an emergency removal from her home of her grandsons,
Angelo M. Carter and Andres Padilla Carter, of whom she had legal
custody. 	The circuit court found that the Roanoke City Department
of Social Services (DSS) presented sufficient evidence to warrant
the emergency removal of the boys from Rivera's custody. 	On
appeal, Rivera contends that DSS failed to prove by a
preponderance of the evidence that she should not have custody.
Upon reviewing the record and briefs of the parties, we conclude
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

that this appeal is without merit. 	Accordingly, we affirm the
decision of the trial court.
Procedural Background
At a hearing held on March 8, 1999, the juvenile and domestic
relations district court (J&DR court) entered an emergency removal
order sua sponte placing custody of the boys with DSS. 	Rivera
appealed the removal order to the circuit court. 	By order entered
January 18, 2000, following an ore tenus hearing on December 20,
1999, the circuit court found that, pursuant to the requirements
of Code § 16.1-251 and § 16.1-252, DSS presented sufficient
evidence to prove that the boys would be subjected to imminent
threat to their lives or health to the extent that severe or
irremediable injury would likely result if returned to or left in
the custody of Rivera; reasonable efforts to prevent removal were
deemed to have been made because there was no reasonable
opportunity to provide preventive services; and no less drastic
alternatives could reasonably protect the boys' life or health.
The trial court remanded the matter to the J&DR court for any
further proceedings and entered its final order. 	Rivera appealed.
Sufficiency of the Evidence
Rivera contends that the trial court erred by finding that
DSS presented sufficient evidence to meet the requirements of Code
§ 16.1-251. 	We disagree.
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Under Code § 16.1-251, a child alleged to be neglected or
abused may be taken into immediate custody based upon evidence
that
1. 	The child would be subjected to an
imminent threat to life or health to the
extent that severe or irremediable injury
would be likely to result if the child were
returned to or left in the custody of his
parents, guardian, legal custodian or other
person standing in loco parentis pending a
final hearing on the petition.
2. 	Reasonable efforts have been made to
prevent removal of the child from his home
and there are no alternatives less drastic
than removal of the child from his home
which could reasonably protect the child's
life or health pending a final hearing on
the petition. 	The alternatives less drastic
than removal may include but not be limited
to the provision of medical, educational,
psychiatric, psychological, homemaking or
other similar services to the child or
family or the issuance of a preliminary
protective order pursuant to § 16.1-253.
When a child is removed from his home and
there is no reasonable opportunity to
provide preventive services, reasonable
efforts to prevent removal shall be deemed
to have been made.
Under familiar principles, we view the evidence and all
reasonable inferences in the light most favorable to DSS as the
prevailing party below. 	See Martin v. Pittsylvania County Dep't
of Soc. Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). 	So
viewed, the evidence proved that DSS presented sufficient evidence
to meet the requirements of Code § 16.1-251. 	Rivera failed to
control the boys or monitor their mental and physical well-being.
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Both boys were on house arrest status and were not to leave the
home unless in the presence of Rivera. 	Rivera failed to control
the boys, who violated their detention. 	Angelo was diagnosed as
suffering from major depression, ADHD and oppositional defiance,
but Rivera failed or refused to take Angelo for a medical
evaluation or to ensure he took his proscribed medications. 	In
June 1999, Angelo was placed in a psychiatric hospital. 	Andres
was placed in a foster home, where he did very well. 	Cathy
Fleming, a detention outreach worker, testified that both boys had
poor hygiene as well as insufficient supervision or limits on
their behavior.
Rivera testified that she had an in-home parenting aide daily
and that the aide saw no problem with Rivera having custody of the
boys. 	Rivera also testified that Angelo was mistreated by his
foster family and was hospitalized as a result. 	Rivera also
called Sheronda Carter, sister to the boys, who testified that she
had lived with Rivera most of her life. 	Carter testified that the
boys were not abused and ate every day. 	She admitted that she was
not registered for school, although she had been in Roanoke for a
month.
Other evidence reflected that both boys had a history of
juvenile criminal activity as well as serious emotional or mental
health problems. 	Rivera failed to cooperate with the attempts of
DSS to provide her with counseling, homemaking, and parenting
services.
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Based upon the evidence presented, the trial court found that
DSS presented sufficient evidence under Code § 16.1-251 to warrant
the emergency removal of the boys from Rivera's custody. 	Evidence
supports the trial court's conclusion.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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