John Thaxton v. Halifax County Department of Social Services

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED

ALICE THAXTON

v. Record No. 1563-12-2

HALIFAX COUNTY DEPARTMENT
OF SOCIAL SERVICES MEMORANDUM OPINION *
PER CURIAM
JOHN THAXTON MARCH 19, 2013

v. Record No. 1705-12-2

HALIFAX COUNTY DEPARTMENT
OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Joel C. Cunningham, Judge

(Tracy L. Quackenbush, on brief), for appellant Alice Thaxton.

(James E. Midkiff, on brief), for appellant John Thaxton.

(Carol B. Gravitt; Brandon G. Hudson, Guardian ad litem for the
minor child; Gravitt & Gravitt, P.C., on briefs) for appellee.

Alice Thaxton, mother, and John Thaxton, father, appellants herein, appeal the order of

termination of their residual parental rights to their son, J.T. On appeal, these matters were

consolidated and share the record and appendices. Both parents argue the trial court erred in finding

that the termination of their residual rights was in the best interests of the child. Upon review of the

record and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we

summarily affirm the decisions of the trial court. Rule 5A:27.

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
 When addressing matters concerning the custody and care of
a child, this Court’s paramount consideration is the child’s best
interests. On appeal, we presume that the trial court thoroughly
weighed all the evidence, considered the statutory requirements, and
made its determination based on the child’s best interests. The trial
court is vested with broad discretion in making decisions “necessary
to guard and to foster a child’s best interests.” We will not disturb a
trial court’s factual findings on appeal unless plainly wrong or
without evidence to support them.

Brown v. Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 211, 597 S.E.2d 214, 217 (2004)

(quoting Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990)). “Furthermore, the

evidence is viewed in the light most favorable to the prevailing party below and its evidence is

afforded all reasonable inferences fairly deducible therefrom.” Logan v. Fairfax Cnty. Dep’t of

Human Dev., 13 Va. App. 123, 128, 409 S.E.2d 460, 463 (1991).

Viewed in this light, the evidence adduced at trial established that appellants had seven

children. From 1997 to 2006, there were ten founded Child Protective Services complaints against

appellants involving filthy home conditions, inadequate shelter and supervision, abuse and neglect,

poor hygiene, and inadequate clothing. The Halifax County Department of Social Services (the

Department) worked with appellants providing counseling, parenting classes, home visits,

transportation, substance abuse treatment, as well as other services and support. J.T. had to be

removed from the home three times. J.T.’s final removal from the home was in 2006 because of

abuse and neglect and inadequate supervision. J.T. has had eight placements with foster families

and relatives. After moving from relative and foster placements for the first twenty months after the

final removal from the parents’ home, J.T. lived with his great aunt and uncle. After approximately

five years, the great aunt and uncle petitioned for release of custody in 2011. Following a brief stay

in a previous foster family’s home, J.T. was placed in the foster home of Herman and Vivian

Sydnor, with two of his siblings, an older brother and sister.

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 The Department worked with the family for nine years. Although mother claimed she had

done all that was required of her, the record shows that she never completed substance abuse

treatment and refused drug testing as late as 2008. During the placement with the great aunt and

uncle, the Department stopped working with appellants who demonstrated they were unable to

remedy the conditions that resulted in the removal of the children.

At the time of the proceedings, two siblings were in foster homes in New York, the Sydnors

had adopted the two siblings living with J.T., and another sibling had been adopted by another

family. Father’s residual parental rights to the brother the Sydnors adopted were involuntarily

terminated on October 4, 2011.

When J.T. came into the Sydnors’ home, he was defiant and had numerous behavioral

problems in school and in the home. At the time of trial, J.T.’s behavior and performance at home

and in school were markedly improved. The Sydnors testified they allowed appellants to spend

time with J.T. and they each had a strong bond with the child. The Sydnors included appellants in

parenting decisions. The Sydnors felt it was in the best interests of the child for appellants to

continue to have contact with J.T. However, they also indicated it was in the child’s best interests to

not be separated from his brother and sister who were already in their home. J.T. had a particularly

strong bond with the brother. When asked if it “would be harmful to take [J.T.] out of that

environment,” referencing their home, Mrs. Sydnor stated, “It would.”

Appellants argue the Department’s evidence demonstrated that it was not in the best

interests of the child to terminate their residual parental rights. They maintain that termination was

not appropriate when the foster parents agreed that mother and father had developed a strong bond

with J.T. and should have a continuing role in his life. This argument ignores Mrs. Sydnor’s

testimony that, despite these facts, removing J.T. from his siblings would be “harmful” to him.

Further, the record demonstrates that appellants had not responded to services and were unable to

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remedy the conditions that led to removal in a reasonable period of time. “The Department is not

required ‘to force its services upon an unwilling or disinterested parent.’” Id. at 130, 409 S.E.2d at

463-64 (quoting Barkey v. Commonwealth, 2 Va. App. 662, 670, 347 S.E.2d 188, 192 (1986)). “It

is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out

when, or even if, a parent will be capable of resuming his or [or her] responsibilities.” Kaywood v.

Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540, 394 S.E.2d 492, 495 (1990).

The Department spent nine years working with appellants, without rehabilitation.

Appellants had minimal contact with J.T. during the five-year placement with the great aunt and

uncle. When J.T. left his great aunt and uncle’s home, the Department was not required to pursue

futile additional services.

Virginia law recognizes the “maxim that, sometimes, the most
reliable way to gauge a person’s future actions is to examine those of
his past.” Petry v. Petry, 41 Va. App. 782, 793, 589 S.E.2d 458, 463
(2003). “As many courts have observed, one permissible ‘measure
of a parent’s future potential is undoubtedly revealed in the parent’s
past behavior with the child.’” Id. (citation omitted). “No one can
divine with any assurance the future course of human events.
Nevertheless, past actions and relationships over a meaningful period
serve as good indicators of what the future may be expected to hold.”
Winfield v. Urquhart, 25 Va. App. 688, 696-97, 492 S.E.2d 464, 467
(1997) (citations omitted).

Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 267-68, 616 S.E.2d 765, 770 (2005). As

the trial court noted, “There comes a point when a child needs to know that he has a permanent

place to go, he doesn’t have to worry about whether he’s going to be in this house next month . . . .

That is unfair[;] it’s just not good for the child.”

Mother did not demonstrate her ability “within a reasonable period of time . . . to remedy

substantially the conditions which led to or required continuation of the child’s foster placement,

notwithstanding the reasonable and appropriate efforts of [the Department].” Code

§ 16.1-283(C)(2). The record established father’s residual parental rights to another sibling had

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been involuntarily terminated. Therefore, pursuant to Code § 16.1-283, subsections (C) and (E), the

trial court only needed to further determine whether it was in the child’s best interests to terminate

their parental rights.

Because “the rights of parents may not be lightly severed,”
M.G. v. Albemarle County Dep’t of Soc. Servs., 41 Va. App. 170,
187, 583 S.E.2d 761, 769 (2003) (citation omitted), clear and
convincing evidence must establish the statutory grounds for
termination. Fields [v. Dinwiddie County Dep’t of Soc. Servs.], 46
Va. App. [1,] 7, 614 S.E.2d [656,] 659 [(2005)]. In the end, the
“child’s best interests” remain the “paramount consideration” of the
court. Akers v. Fauquier County Dep’t of Soc. Servs., 44 Va. App.
247, 262, 604 S.E.2d 737, 744 (2004) (citation omitted). Even on
this issue, however, we cannot “substitute our judgment” for the
circuit court’s, Ward v. Commonwealth, 13 Va. App. 144, 148, 408
S.E.2d 921, 923 (1991), but rather review the record only to
determine if sufficient evidence supports it.

Toms, 46 Va. App. at 266-67, 616 S.E.2d at 770. The Department showed by clear and convincing

evidence that J.T. was thriving in the foster family’s care, that his behavior was significantly

improved, and that he had a strong bond with his siblings who had already been adopted by the

foster parents. Although it appeared that appellants were engaging in a more positive manner with

J.T. and the Sydnors, nothing in the record suggested appellants had improved their circumstances

sufficiently to maintain parental rights. The trial court determined it was best for the child to have

permanency, which appellants could not provide. Thus, the record contains sufficient evidence that

it was in the best interests of the child to terminate the residual parental rights of mother and father.

Accordingly, the trial court did not err by terminating the mother’s and father’s residual

parental rights to J.T. For the foregoing reasons, the trial court’s ruling is affirmed.

Affirmed.

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